Court Of Appeal Modifies Remedy In Retaliation Case

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City of South Pasadena v PERB (2020) PERB Case No. 2692-M; Court of Appeal Case No. B304596

This case involves a firefighter who aggravated an existing back injury in December 2015 while observing a demonstration from another firefighter. The firefighter said that his back began to spasm and that he could not even stand up the day after observing the demonstration. His doctor took him off of work for six weeks. On January 30, 2016, the firefighter participated in the California Spartan Race – an approximately eight-mile run over varied terrain with obstacles. The city subsequently launched an investigation of the firefighter which concluded that he had engaged in dishonesty and abuse of sick leave. The firefighter was terminated.

The issue before PERB was whether the city’s decision to terminate the firefighter was motivated by retaliatory animus. PERB noted that the investigation was not launched for several months and that it was launched right after the firefighter, who was the union president, filed an unfair practice charge. PERB also found that the investigation was cursory and that the penalty was disproportionate to that imposed on other employees who engaged in similar misconduct. As a result, PERB held that the city’s decision to terminate the firefighter was retaliation for protected activity. As a remedy, PERB ordered the city to rescind the termination and to expunge all records related to the termination, including the investigation report, from the firefighter’s personnel file.

The city filed a petition before the Court of Appeal. On February 26, 2021, the court affirmed the PERB decision with the exception that it modified the remedy. Specifically, the court issued the following order:

“We grant the City of South Pasadena’s (the City’s) petition for a writ of extraordinary relief only insofar as it seeks an order modifying Public Employment Relations Board (PERB) Decision No. 2692-M such that the City is no longer required to expunge from its records, including [the employee’s] personnel file: (1) the investigative report; and (2) all references to (a) the investigative report, (b) the October 3, 2016 Notice of Intent to Terminate, and (c) the December 2, 2016 Notice of Termination, Accusation and Statement to Respondent. The October 3, 2016 Notice of Intent to Terminate and the December 2, 2016 Notice of Termination, Accusation and Statement to Respondent, however, must still be expunged. We deny the remainder of the City’s petition. We deny as moot PERB’s motion to strike portions of the City’s opening and reply briefs. Each party is to bear its own costs in this review proceeding.”

Comments:

It’s very rare for a PERB decision to be overturned, or even modified, by a court of appeal. This is because the standard of review is extremely deferential to PERB. So even though the PERB decision was largely affirmed in this case, it is still noteworthy because the court modified the remedy.
I watched the oral arguments in this case. The city argued that the entire decision should be overturned. In the alternative, the city argued that at least the remedy of expunging the investigation report should be overturned. It was only on this latter issue did the city gain any traction during the oral argument. It was clear that at least one of the justices was very troubled by the (apparently) undisputed fact that a firefighter on leave for a back injury participated in a grueling endurance race. Presumably, the court felt that even if the termination decision was tainted by retaliatory animus, the underlying investigation report was not.