2006-10

Public Employees Who Make Statements as Part of Their Official Job Duties Are Not Protected by the First Amendment and Not Immune From Discipline.

In Garcetti v. Ceballos, 2006 DLR E-1 (U.S. May 31, 2006)(1), the U.S. Supreme Court ruled that public employees who make statements as part of their official job duties are not protected by the First Amendment and are not immune from being disciplined.

Background Facts

Respondent Richard Ceballos has been employed as a deputy district attorney for the Los Angeles County District Attorney's Office since 1989. During the relevant period of time, Ceballos was a calendar deputy in the office's Pomona branch and exercised certain supervisory responsibilities over other lawyers.

In February 2000, a defense attorney contacted Ceballos about a pending criminal case, stating that there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney said that he filed a motion challenging the warrant but also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.

As such, Ceballos examined the affidavit and visited the location it described and determined that the affidavit contained serious misrepresentations. First, the affidavit called a "long driveway" what Ceballos thought should have been referred to as a separate roadway. Second, Ceballos questioned the affidavit's statement that tire tracks led from a truck to the premises in question because the roadway's composition made it difficult or impossible to leave visible tire marks.

Ceballos spoke with the warrant affiant, a deputy sheriff from the L.A. County Sheriff's Department, but found his explanations regarding the perceived inaccuracies to be unsatisfactory. Ceballos relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum. The memo explained his concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for review and a few days later submitted another memo to Sundstedt which described his second telephone conversation with the warrant affiant.

Based on Ceballos' statements, a meeting was held with Ceballos, Najera, Sundstedt, the warrant affiant and other employees from the sheriff's department. The meeting got very "heated" with one lieutenant sharpy criticizing Ceballos for his handling of the case. Despite Ceballos' concerns, Sundstedt decided to proceed with the prosecution and the trial court rejected the challenge to the warrant.

Procedural History

Ceballos claims that in the aftermath of these events, he was subjected to a series of retaliatory actions, including reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse and denial of a promotion. Ceballos filed a grievance, but it was denied based on a finding that he had not suffered any retaliation. Accordingly, Ceballos filed suit in the U.S. District Court for the Central District of California, asserting a claim under 42 U.S.C. §1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his March 2 memo. Petitioners claimed that no retaliatory actions were taken against Ceballos and all actions complained of could be explained by legitimate business reasons, such as staffing needs.

Petitioners moved for summary judgment. The District Court granted the motion, finding that Ceballos was not entitled to First Amendment protection for the memo's contents, and even if Ceballos' speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established. The Ninth Circuit reversed, holding that Ceballos' allegations of wrongdoing in the memo constitute protected speech under the First Amendment. In reaching its conclusion, the Ninth Circuit looked to the analysis set forth in Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983). Connick requires courts to determine whether the expressions in question were made by the speaker as a "citizen upon matters of public concern." The Ninth Circuit determined that Ceballos' memo was "inherently a matter of public concern." Next, the Ninth Circuit balanced Ceballos' interest in his speech against his supervisors' interest in responding to it, finding in Ceballos' favor and noting that the petitioners failed even to suggest disruption or inefficiency in the workings of the District Attorney's office as a result of the memo. The Ninth Circuit further concluded that Ceballos' First Amendment rights were clearly established and that petitioners' action were not objectively reasonable. The Supreme Court granted certiorari and reversed the Ninth Circuit decision.

Analysis

The Supreme Court began its analysis by noting that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's rights, in certain circumstances, to speak as a citizen addressing matters of public concern. Prior case law sets out two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is "no," the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is "yes," then the possibility of a First Amendment claim arises. The question then becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restriction it imposes must be directed at speech that has some potential to affect the entity's operations. So long as employees are speaking as citizens about matters of public concern they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.

With these principles in mind, the Court turned to the case at issue, finding that the controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. The fact that "Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline." Accordingly, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline."

Here, the Court determined that Ceballos did not act as a citizen when he went about conducting his daily professional activities, in the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. The Court explained that when an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. "To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers."

The Supreme Court went on to explain that this ruling does not prevent employees from participating in public debate. In particular, employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper or discussing politics with a co-worker. When a public employee speaks pursuant to employment responsibilities however, there is no relevant analogue to speech by citizens who are not government employees.

Accordingly, the Court concluded that the First Amendment does not prohibit managerial discipline based on an employee's expression made pursuant to official responsibilities. Because Ceballos' memo falls into this category, the Court held that his allegations of unconstitutional retaliation must fail.

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Employers Have a Duty to Provide Reasonable Accommodations to Employees "Regarded As" Disabled, Even if Not Actually Disabled.

In Gelfo v. Lockheed Martin Corporation, 2006 DJDAR 6921 (Cal.App. June 2, 2006)(2), the California Court of Appeal (Second Appellate District, Division Eight) determined a variety of issues relating to the employee's wrongful termination and disability discrimination claims. Most notably, the court held that Lockheed had a duty under the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940, to provide reasonable accommodations to an employee "regarded as" disabled even if the employee was not actually disabled.

Background Facts

Charles Gelfo began working for Lockheed as a metal fitter in 1980. He was laid off in 1984, re-hired in 1997 and later promoted to senior metal fitter. Throughout his employment, Gelfo belonged to a labor union and was subject to a Collective Bargaining Agreement ("CBA"). Gelfo injured his back in September 2000, but he continued to work and filed a workers' compensation claim. However, he was laid off in October 2000 and placed on a recall list making him eligible for rehire as a metal fitter or in a related job classification for up to five years, pursuant to the CBA.

The following month, Gelfo's physician, Dr. Pratley, declared him "permanent and stationary" for workers' comp purposes. Gelfo was restricted from heavy lifting and bending or stooping. The following May, Dr. Pratley released Gelfo to return to work with a restriction on repetitive lifting of items over 50 pounds, but Lockheed did not have any metal fitter positions available at that time.

At Lockheed's request and as part of his workers' comp case, Gelfo underwent a qualified medical evaluation ("QME") in June 2001, conducted by Dr. Paul. Gelfo told Dr. Paul his pain had diminished, but he continued to experience discomfort and tingling in his lower back. Dr. Paul issued a report, concluding that Gelfo was "permanent and stationary" and that he was "permanently disabled" and precluded from performing "heavy work." Gelfo also was deemed a "qualified injured worker."

Dr. Pratley re-examined Gelfo in September 2001. Gelfo still articulated a variety of physical complaints. As such, Dr. Pratley concluded Gelfo was a "qualified injured worker" who lost approximately 75% of his pre-injury capacity for lifting. Dr. Pratley also said that Gelfo should do "no heavy lifting, no repetitive bending, and no prolonged sitting or standing" and that he would not be able to return to his position as a metal fitter. Thereafter, Gelfo participated in a vocational rehabilitation program from October 2001 through January 2002.

However, during this same period of time, from late 2001 until early 2002, Gelfo participated in a number of strenuous physical activities which left him "feeling fine." He said that by February 2002, he felt that "physically, there was nothing that he couldn't do." Gelfo's workers' comp case settled in January 2002. His injuries were deemed permanent and stationary, and he received a permanent disability rating of 42% and an award of approximately $36,000.

Gelfo Attends Lockheed's Training Program and Receives Job Offer

In mid-September 2001, Lockheed invited Gelfo to participate in a composite training class designed to train each participant to be a plastic parts fabricator and assembler ("fabricator"). The training began on October 22, 2001 and ran for 10 weeks. Gelfo performed all the regular duties, was able to complete the training and perform the required tasks without adverse consequences to his back. On February 12, 2002, Lockheed offered each trainee a position as a fabricator, contingent upon obtaining a security and medical clearance.

Gelfo's Offer is Revoked

Two days later, on February 14, 2002, Erika Matthews (Labor Relations) called Gelfo to inform him that Lockheed revoked his job offer after a review of his filed revealed medical restrictions that were incompatible with the physical demands of the fabricator position. Gelfo said that he felt fine and "that he really didn't have any limitations." Gelfo also went to Dr. Pratley, told him his back felt better and said he felt able to perform the fabricator position without restrictions. Gelfo said that Dr. Pratley agreed the work restrictions were no longer necessary. Gelfo claims he obtained a release from Dr. Pratley but his attorney advised against providing it to the Company. After February 2002, Gelfo had no further discussions with Lockheed regarding the fabricator position or any workplace accommodation until he received a letter from Lockheed in July 2002.

In early July, Lockheed's Placement Review Committee met to consider whether an accommodation was possible to enable Gelfo to perform the fabricator job, consistent with the restrictions in his medical file. The Committee determined that Lockheed could accommodate Gelfo's lifting restriction but could not accommodate Gelfo's other restrictions and no reasonable accommodation or modification was posisible which would permit him to perform the work of a fabricator or any other available position within his classification.

On July 12, 2002, Shirley Harbeson (Sr. Manager of EEO Programs and Committee Chair) informed Gelfo, by letter, of the Company's decision. Gelfo responded by letter on July 24, 2002, requesting the Company reconsider its decision. Gelfo said Lockheed was misinformed about his medical restrictions and reiterated that he had successfully completed the training without incident. (Gelfo claims he gave the medical release to a Lockheed representative and sent it by certified mail to Harbeson. Harbeson testified Gelfo refused to furnish the release on advice of counsel and no one at Lockheed ever received the release.) Gelfo told Harbeson he had recently accepted a position with another company that required him to perform the same functions and that his doctor agreed he could perform the fabricator position.

Harbeson responded to Gelfo's letter on September 4, 2002. She noted her earlier letter had mistakenly relied on an outdated "limits" list. Nonetheless, based on the Drs. Pratley and Paul reports and Dr. Pratley's deposition testimony, Lockheed adhered to the view that Gelfo's inability to sit or stand for more than three hours a day was a physical limitation for which no reasonable accommodation was available.

Procedural History

Gelfo filed this action on March 30, 2003. He alleged causes of action for: (1) disability discrimination in violation of FEHA; (2) failure to accommodate; (3) failure to engage in timely good faith interactive process; and (4) wrongful termination in violation of public policy. Summary adjudication was granted in favor of Lockheed on the common law cause of action for wrongful termination in violation of public policy because it was time-barred. A jury trial was conducted on the three remaining claims in July 2004. Lockheed sought a directed verdict on all causes of action and claim for punitive damages. All but one portion of Gelfo's first cause of action for disability discrimination was dismissed. By directed verdict, the trial court found that Geflo did not have an "actual" disability and based on that finding, the court concluded Lockheed had no legal duty to provide a reasonable accommodation to Gelfo or to engage in an interactive dialogue with him, and dismissed his second and third causes of action.

The sole claim remaining for the jury's determination was whether Lockheed violated FEHA by refusing to rehire Gelfo in February 2002 because it "regarded" him as a person with a physical disability. The jury returned a special verdict stating Lockheed did not "mistakenly believe that [Gelfo's] low back injury limited his ability to work." From a judgment entered in favor of Lockheed, this appeal followed.

Gelfo's Wrongful Termination Claim is Time-Barred

Lockheed obtained summary adjudication of Gelfo's cause of action for wrongful termination in violation of public policy because it was barred by the statute of limitations. This ruling was affirmed on appeal.

The appellate court determined that the two-year statute of limitations ran from the date of Gelfo's lay-off in October 2000. The court found no merit in Gelfo's argument that because the CBA gave him the right of recall for five years, he remained technically employed by Lockheed when it refused to place him in the fabricator position in February 2002.

Gelfo Was Not "Actually" Physically Disabled

Gelfo argued that the trial court erred in granting Lockheed's motion for directed verdict on the portion of his FEHA claim based on actual physical disability and that the issue should have been submitted to the jury. The appellate court concluded that the evidence was uncontradicted, and the directed verdict on this aspect of Gelfo's claim was proper.

The court explained that Gelfo failed to show that his injury or physical condition makes "difficult" the achievement of work or some other major life activity. Indeed, Gelfo endeavored to prove the opposite, readily admitting that as early as February or March 2001 he no longer believed he required any medical restrictions and was "out and about" performing strenuous tasks. Gelfo testified that during 2001 and into early 2002, he could sit for prolonged periods, bend more than once or twice an hour, stand or walk for up to seven hours per day and crouch or bend over a table without experiencing discomfort.

With respect to his ability to engage in the major life activity of working, the appellate court held that the trial court correctly observed Gelfo "was firmly convinced and unwavering in his belief he could have performed the job Lockheed denied him." In sum, Gelfo conceded he felt he could do anything and his testimony had the conclusive effect of a judicial admission that his physical condition did not render difficult the achievement of any major life activity.

The Jury Was Erroneously Instructed

The appellate court stated that after the trial court determined that Gelfo was not "actually physically disabled" it was obligated to determine, based on Lockheed's factual admissions, that the company had in fact "regarded" him as such. The court went on to explain that "Lockheed's consistent position that it withdrew Gelfo's job offer because it perceived he suffered from a disabling physical condition limiting his ability to perform is the functional equivalent of an admission the company withdrew the offer because it "regarded" him as limited in his ability to work." Thus, no factual question remained for the jury to decide as Gelfo satisfied FEHA's definition.

As a result, the appellate court held that "the undisputed issue of whether Lockheed ‘regarded' Gelfo as physically disabled should not have been submitted to the jury in the first place."

In Dicta, Court Finds that the Jury Received an Erroneous and Confusing Instruction and Verdict Form

On appeal, the court concluded that the trial court erred by failing to decide the definitional issue whether Lockheed regarded Gelfo as physically disabled as a matter of law. Thus, the error caused submission of the issue to the jury, a problem which was compounded when the court modified CACI No. 2540 and the verdict form, in a confusing and erroneous way. Typically, in a case alleging an employer unlawfully refused to hire an applicant based on a perception of physical disability, CACI No. 2540 instructs the jury the plaintiff must prove, in part: "Defendant thought Plaintiff's physical condition limited his ability to work." However, the jury received a modified instruction and was told Gelfo was required to establish, in part, that: "Defendant mistakenly believed Plaintiff's low back injury limited his ability to work."

The problem with the instruction lies with the addition of the word "mistakenly." This court held that by adding "mistakenly," the legal standard was impermissibly altered, and the jury was given a confusing questionnaire and implicitly forced to decide an irrelevant issue. By adding the modifier "mistaken" to the instruction, the jury was asked to decide whether Lockheed believed Gelfo was actually disabled and whether that belief was wrong. To respond to the question, the jury was implicitly compelled to decide if Gelfo had an actual disability – a factual inquiry that had already been resolved by the court.

This court found that in view of Lockheed's explicit concession (i.e., that it rescinded its job offer on the belief that work restrictions engendered by Gelfo's back injury limited his ability to perform the essential functions of a fabricator) and the trial court's factual findings, whether Lockheed's perception was mistaken was irrelevant.

Lockheed asserted that the statute's "regarded as" protection is limited to persons who are denied or who lose jobs based on an employer's reliance on the "myths, fears or stereotypes" frequently associated with disabilities. The court acknowledged that there is some legal support for this view, but declined to accept such a limited reading of the FEHA. Rather, the court explained that both the policy and language of the statute offer protection to a person who is not actually disabled, but who is wrongly perceived to be.

The court went on to state, however, that "given our conclusion on the directed verdict on the definitional aspect of Gelfo's claim of discrimination based on a perceived disability, the discussion on instructional error is obviously dicta" and included only to help guide the trial court on remand.

An Employer Must Explore Reasonable Accommodations for and Engage in an Interactive Process with Applicants or Employees who it Regards as Disabled

Only federal courts applying federal law have decided the issues of whether an employer must reasonably accommodate and engage in the interactive process with an individual who is not actually disabled but merely "regarded as" disabled.

The Court of Appeal pointed to two cases (Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999) and Kaplan v. City of North Las Vegas, 323 F.3d 1226 (9th Cir. 2003)) which held that employees who are regarded as disabled by their employers have no right to a reasonable accommodation. These cases found that application of the reasonable accommodation requirement in cases of perceived disability under the Americans with Disabilities Act ("ADA") "would lead to bizarre results" by entitling non-disabled employees to an accommodation denied to similarly situated employees based on their employers' misperceptions. The court noted that the Fifth and Sixth Circuits have reached similar conclusions.

However, the Court of Appeal declined to follow the holdings articulated by these courts and instead adopted the opposite view, as have the First, Third, Tenth and Eleventh Circuits and, to a limited extent, the Second Circuit. The court noted that Weber and Kaplan were decided under the ADA, not FEHA, and found their reasoning unpersuasive. Instead, the court decided to follow the "better-reasoned decision" of Williams v. Philadelphia Housing, 380 F.3d 751 (3rd Cir. 2004).

In Williams, a police officer developed severe depression and as a result, was unable to carry a gun. The department refused his request to have a radio room assignment on the grounds that if the officer were assigned to that position, he would have access to firearms and would work in close proximity to others who carried guns. His employer erroneously perceived that, not only could he not carry a gun, he could not be around others who did or have access to firearms due to his mental condition. The officer was terminated and sued under the ADA, arguing that his employer regarded him as having limitations in excess of his actual limitation that resulted from his condition.

The Williams court held that employees who are regarded as disabled are entitled to accommodation under the ADA. It reasoned that the plain meaning of the ADA does not distinguish between actually disabled and "regarded as" individuals in requiring accommodation and Congressional intent is to protect one who is disabled by virtue of being "regarded as" disabled in the same way as one who is "disabled" by virtue of being "actually disabled." In addition, the Williams court noted that "had the employer not misperceived William's [sic] inability to be around guns due to his emotional condition, the radio room assignment would have been available to him just as it would have been to another similarly situated officer. Thus, the individual whose limitations are perceived accurately gets to work, while Williams is sent home unpaid.... This is precisely the type of discrimination the ‘regarded as' prong literally protects from."

In Gelfo, the appellate court pointed to other cases advancing the theory it accepted and explained that "‘regarded as' plaintiffs are not ‘impaired but non-disabled' individuals, but rather are disabled within the meaning of the statute." The court accepted the reasoning articulated in these other cases, explaining that "categorically denying reasonable accommodation to ‘regarded as' plaintiffs would allow the prejudices and biases of others to impermissibly deny an impaired employee his or her job because of the mistaken perception that the employee suffers from an actual disability."

Consequently, the court held that the trial court erred in concluding an employer has no duty, as a matter of law, to provide a reasonable accommodation to an applicant or employee who is "regarded as" disabled under the FEHA. Thus, the trial court erred in directing a verdict for Lockheed on the cause of action for failure to provide reasonable accommodation.

In reaching its decision that an employer must engage in the interactive process with an employee or applicant who is "regarded as" disabled, the court first noted that an employer's duty to accommodate is inextricably linked to its obligation to engage in a timely, good-faith discussion with an applicant or employee whom it knows is disabled, and who has requested an accommodation, to determine the extent of the individual's limitations, before an individual may be deemed unable to work.

The court went on to explain that the interactive process is at the heart of the FEHA's process and essential to accomplishing its goals. When an employer is aware of an employee's disability, the employer's interest is not in assessing whether the individual impairment may legally be considered an "actual disability." Rather, the focus of the interactive process "centers on employee-employer relationships so that capable employees can remain employed if their medical problems can be accommodated, rather than sounding a clarion call to legal troops to opine on whether the employee's impairment is an actual disability within the legal nuances of the statute."

Accordingly, the appellate court concluded that the trial court erred in directing a verdict for Lockheed on the cause of action for failure to engage timely and in good faith in the interactive process to determine effective reasonable accommodations.

Gelfo Failed to Establish Entitlement to Punitive Damages

The trial court granted Lockheed's motion for directed verdict as to punitive damages on the ground Gelfo failed to present sufficiently clear and convincing evidence to permit the jury to find a corporate decision-maker was involved in rescinding his job offer. The Court of Appeal agreed.

The only Lockheed employee who potentially qualified as a "managing agent" was Harbeson's supervisor, Bob MacPherson, who Harbeson testified was a Lockheed vice-president. No evidence was presented regarding MacPherson's duties or authority, let alone substantial evidence that MacPherson exercised substantial discretionary authority over decisions that ultimately determine corporate policy. No substantial evidence showed MacPherson was a managing agent. Thus, the jury could not have made the finding that MacPherson was a managing agent (which finding is essential for the imposition of punitive damages) even if the issue had gone to the jury.

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1. Opinion by Kennedy, J. Dissenting opinions by Stevens and Breyer, JJ.

2. Opinion by Boland, J., joined by Cooper, P.J. and Rubin, J.