February 2002 Vol. 8 No. 2 ISSN 1087-6219
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In This Issue

• Sheriff is a county actor when investigating crime
• Employee evaluations may constitute adverse employment action
• Conversation not confidential unless one of the parties reasonably expects it will be confined to the parties
• Parties may not agree to have court review arbitration award for sufficiency of the evidence
• Ninth Circuit explains elements of claim for discrimination based on military service
• UPDATES

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Sheriff is a county actor when investigating crime

The Ninth Circuit has ruled that a county sheriff's actions may subject the county to liability under 42 U.S.C. section 1983. It rejected the contrary view of the California Court of Appeal set forth in County of Los Angeles v. Superior Court (Peters), 68 Cal. App. 4th 1166 (1998).

Thomas Brewster alleged that Shasta County and two Shasta County sheriff's deputies violated his civil rights during a criminal investigation by manipulating a witness into giving a false identification, failing to test physical evidence and ignoring exculpatory evidence. He claims that the County was liable because the deputies were following the County Sheriff's policies on arrests and criminal investigations.

The Ninth Circuit affirmed the District Court's decision to allow the claim against the County to proceed under Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). The County argued that it was not liable, because the Sheriff was a state actor with respect to criminal investigation, relying on the Supreme Court's decision in McMillian v. Monroe County, 520 U.S. 781 (1997). However, McMillian instructs that each official's status must be determined by analyzing the particular area or issue from which the claim arises.

In this case, the California Constitution and several statutes identify sheriffs as county officials. State law requires the County to pay any monetary damages that might be awarded against the Sheriff. In an earlier case, the Ninth Circuit ruled that the Los Angeles County Sheriff was a county actor with respect to jail release policy. Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir.) cert. denied, 122 S.Ct. 59 (2001). It rejected the California Court of Appeal's analysis in Peters. Although the federal court must look to state law to determine how it treats the official, a state court's conclusion about who may be held liable under section 1983 is not binding, because that decision ultimately rests on an interpretation of federal law.

Brewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001).

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Employee evaluations may constitute adverse employment action

The San Diego division of the Fourth District Court of Appeal has ruled that evaluations that reduce promotional opportunities may constitute adverse employment action.

Laura Akers was a San Diego County deputy district attorney. After she returned from a pregnancy leave, Akers complained that she had been forced out of her chosen assignment because of her gender, pregnancy and political views. After she complained, Akers received an improvement needed performance evaluation, and a written counseling memorandum. In the succeeding months, she showed outstanding progress, and improved to a “standard” on her next evaluation. She sought a position in the elder abuse unit, but did not receive it.

Akers took a one-year leave of absence from which she did not return. She did not return because the same individuals were still in charge of administration, and the allegations in the counseling memo were a “black mark” on her career.

Akers sued for discrimination based on gender and pregnancy, violation of the family leave statutes and retaliation. The jury found for the County on the first three claims, but awarded $250,000 in non-economic damages for retaliation. Akers accepted a reduction of the verdict to $150,000, and was awarded $249,345 in attorney fees.

The Court of Appeal affirmed the judgment, rejecting the County's argument that Akers had not been subjected to adverse employment action. It ruled that adverse action is not limited to ultimate employment acts, but extends to actions constituting a substantial adverse change in the terms and conditions of employment. Courts should not be “thrust into the rule of personnel officers.”

Although Akers did not prove denial of a specific promotional opportunity, she left the district attorney's office because of the adverse comments about her, and the severe damage to her reputation. The jury could have reasonably concluded that key decision makers in the district attorney's office intended to substantially and materially obstruct Akers's career. Had she remained in the office, she would have been denied promotional opportunities.

Although mere criticism of an employee's performance does not constitute adverse action, it may become one where the employer subsequently uses it to alter the terms or conditions of employment. In this case, there was evidence that top management used the information against Akers in significant employment decisions.

Akers v. County of San Diego, 2002 WL 192593 (Cal. Ct. App. Feb. 8, 2002).

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Conversation not confidential unless one of the parties reasonably expects it will be confined to the parties

The Santa Ana division of the Fourth District Court of Appeal has ruled that liability for eavesdropping under the California Privacy Act depends upon proof that one of the parties to the conversation reasonably expected that its contents would be not divulged to anyone else.

A Nature's Best employee surreptitiously recorded a telephone conversation with Charles Burns. Burns knew that the conversation was over a speakerphone at the Nature's Best end. He had no previous dealings with Nature's Best, and saw no need to confirm that the conversation was private. He did not care whether someone else overheard, but had no reason to expect that someone was overhearing.

Penal Code section 632 (part of the Privacy Act) makes it illegal to record a “confidential communication” without the consent of all parties. A communication is confidential if carried on in circumstances that reasonably indicate “that any party desires it to be confined to the parties thereto.” A communication is not confidential if the circumstances would lead a party to expect “that the communication may be overheard or recorded.” Prior Courts of Appeal have differed over the meaning of the definition.

The Ninth Circuit summed up the differing views as follows: “Suppose X and Y are hiking in the woods. Y offers to pay X the $5.00 that Y owes X. X tells Y to pay the money to Z, because X owes Z $5.00. When X finds out that Y had taped the conversation, he sues Y. Under [one view], X wins because in the wilderness he had a reasonable expectation that no one overheard their conversation. Under [the other view], Y wins, because X had a reasonable expectation that Y would divulge the conversation to Z.” Deteresa v. American Broadcasting Cos., 121 F.3d 460 (9th Cir. 1997).

The Court of Appeal adopted the second view. To prevail on a claim under section 632, the plaintiff must prove a reasonable expectation that the none of the parties to the communication would convey the information to anyone else.

Burns v. Nature's Best, 94 Cal. App. 4th 1203 (2001).

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Parties may not agree to have court review arbitration award for sufficiency of the evidence

The Second District Court of Appeal in Los Angeles has ruled that parties may not by agreement expand the jurisdiction of a California court to review arbitration awards beyond that provided by statute.

Ronald Crowell and the Downey Community Hospital included an arbitration provision in their agreement for Dr. Crowell to furnish emergency services. The arbitrator's award was to be final and binding, except that “a court shall have the authority to review the transcript of the arbitration proceedings and the arbitrator's award and shall have the authority to vacate the arbitrator's award … on the basis that the award is not supported by substantial evidence or is based upon an error of law.”

After a dispute arose, Dr. Crowell sought a declaration that the arbitration provision was enforceable and that the parties should proceed to arbitration. The trial court sustained the hospital's demurrer on the grounds that the provision was not enforceable. The Court of Appeal affirmed.

Code of Civil Procedure sections 1286.2 and 1286.6 set forth grounds for vacating and correcting arbitration awards. None of those grounds include reviewing an arbitration award for errors of law or lack of adequate supporting evidence. In those sections the Legislature established trial court jurisdiction to review arbitration awards. Private parties cannot by agreement confer jurisdiction where none exists.

Crowell v. Downey Community Hosp. Found., 115 Cal. Rptr. 2d 810 (Ct. App. 2002).

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Ninth Circuit explains elements of claim for discrimination based on military service

Reversing a grant of summary judgment for the employer, the Ninth Circuit has explained that claims for discrimination based on military service only require proof that the service was a motivating factor in adverse employment action. Plaintiffs in such cases no longer need to show that their military service was the sole motivation.

John Leisek was a member of the Oregon National Guard. He had a hot-air balloon with the National Guard insignia on it, which he used as a recruiting and promotional tool for the National Guard. For much of the spring and summer of 1996, the National Guard issued written orders for Leisek to attend various events with the balloon. His employer asked him to stop soliciting balloon events because his absences would be a hardship.

At the conclusion of an event in Idaho for which Leisek had written orders, the employer asked him to report back to work because he did not have orders to attend an upcoming event in Colorado. After Leisek attended the event in Colorado anyway, the employer discharged him under a policy that deemed to have quit voluntarily for having missed three days of work. Two months later Leisek sought reemployment, but refused to resubmit an employment application, and was not rehired.

It is a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) if a person's military service is a “motivating factor” in adverse employment action. That is a change from pre-1994 law, which required proof that the service was the employer's “sole motivation.” Leisek's trip to Colorado was not military service under USERRA, because it was not pursuant to proper orders. However, there was evidence that other absences that did fall within the definition played a role in the decision. Therefore, he could pursue his discrimination claim at trial based on his discharge from employment.

However, Leisek could not pursue a claim for reemployment. Such a claim requires proof that absence was necessitated by military service. Leisek's absence from employment while in Colorado was not necessitated by such service.

Leisek v. Brightwood Corp., 2002 WL 77034 (9th Cir. Jan. 22, 2002).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Birschtein v. New United Motor Mfg., Inc. (January 2002 issue), review denied (Jan. 16, 2002).

Comedy III Productions, Inc. v. Gary Saderup, Inc. (June 2001 issue), cert. denied, 122 S.Ct. 806 (2002).

Department of Health Services v. Superior Court (January 2002 issue), petition for review filed (Jan. 8, 2002).

Intel Corp. v. Hamidi (January 2002 issue), petition for review filed (Jan. 22, 2002).

LaVine v. Blaine School Dist. (August 2001 issue), rehearing en banc denied (Jan. 29, 2002).

Ryan v. California Interscholastic Federation-San Diego Section (January 2002 issue), rehearing denied (Jan. 23, 2002), petition for review filed (Feb. 4, 2002).

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