November 2016 - Issue 57

Join Social Media Conversations with the Authority  

Preparing for 2017: California Legislative Update

2016 Legislative Update

Training Calendar for 2017

Injury and Illness Prevention Program Policy Template Update

Hugging Employee, Kissing on Cheek, Can Give Rise to Lawsuit

Court of Appeal Rejects Claim That Officer’s Removal From SWAT Team Violated State Law

Court of Appeal Limits Scope of FEHA Retaliation Provision

News:  Worthy

Join Social Media Conversations with the Authority  

In order to reach new members and better connect with current members, the Authority has an active presence on social media. Members can find information on various topics on the social media channels listed below. Social Media Logo

Connect with our latest topics:  

Facebook 
“Did you know that the Authority has a Railroad "Quiet Zone" Liability Program?” Like, comment and share:
https://www.facebook.com/California-JPIA-650664764970940/

LinkedIn Page
“Recently featured by the League of California Cities, San Luis Obispo’s Public Engagement and Noticing Manual presents a useful how-to guide for community outreach on projects and services." Follow us, comment and share about risk management:
https://www.linkedin.com/company/california-joint-powers-insurance-authority/

LinkedIn Discussion Group
“In order to manage online presence and protect against litigation tied to abuse of social media, public agencies are encouraged to have a comprehensive social media policy in which the types of acceptable and unacceptable content are clearly indicated. If your agency already has such a policy, what are some of the other items that are covered?” Join the conversation, or pose a question or idea about risk management and the California JPIA:
https://www.linkedin.com/groups/6786001

Twitter
“Have questions about service animals and the Americans with Disabilities Act? Check out the DOJ's FAQ. Learn more: http://tinyurl.com/ze6rrn8” Tweet, retweet and follow the California JPIA:
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For information on how to join these sites or participate in discussions, please contact Courtney Morrison, Administrative Analyst, by email or by phone at (562) 467-8779.


News: Worthy

Preparing for 2017: California Legislative Update

Kelly Trainer and Joel Moon, Burke, Williams and Sorensen, LLP

As is the norm, a new year will bring new laws for California employers.  This article outlines several key laws signed by Governor Brown during the 2015-2016 California legislative session that will likely affect public employers. 

AB X2-7 – Smoking in the Workplace
Effective Date: June 9, 2016
Amends Labor Code Section 6404.5

Existing California law prohibits smoking of tobacco products inside “enclosed spaces” for certain employers. AB X2-7 now extends existing prohibitions on smoking in the workplace to all employers, including employers with five or less employees and “owner-operators” or owner operated businesses.  “Enclosed spaces” include covered parking lots, building lobbies, lounges and waiting areas, elevators, stairwells, and restrooms that are structurally attached to buildings.  However, AB X2-7 exempts certain “places of employment,” including up to 20% of rooms in hotel, motel, or similar lodging establishments, retail or wholesale tobacco stores, private smoking lounges, motor truck cabs, theatrical production sites, certain medical research or treatment locations, private residences, and patient smoking areas in long term health care facilities.

Violations of AB X2-7 will result in fines not to exceed $100 for a first violation, $200 for a second violation within one year, and $500 for a third violation and each subsequent violation thereafter.

AB 488 – FEHA Protections Extended to Employees of Nonprofit Sheltered Workshops and Rehabilitation Facilities under Special License
Effective Date: January 1, 2017
Amends Government Code Section 12926 and creates Section 12926.05

AB 488 expands the protections of the California Fair Employment and Housing Act (“FEHA”) to individuals employed under a “special license” by nonprofit sheltered workshops and rehabilitation facilities.  Individuals employed under a “special license” are individuals with disabilities that are paid a wage less than the legal minimum wage.  These individuals now fall into the definition of “employees” under FEHA and may bring claims against employers for discrimination or harassment under the FEHA.  However, employers can raise an affirmative defense to claims by showing by a preponderance of evidence that the alleged action committed by the employer was permitted by statute or regulation or that it was necessary to serve employees with disabilities under a special license. 

AB 908 – Expansions to Paid Family Leave and State Disability Insurance
Effective Date: January 1, 2018
Amends Unemployment Insurance Code Sections 2655, 2655.1, and 3303

Existing California law allowed employees to receive partial wage replacement for up to six weeks to care for ill family members or to bond with a new child.  Employees receiving Paid Family Leave (“PFL”) and State Disability Insurance (“SDI”) currently receive up to 55 percent of their salaries as wages replacement benefits.  Starting January 1, 2018, AB 908 increases PFL and SDI benefits from the current 55 percent cap to 60 or 70 percent, depending on the employee’s individual salary level.  Under the new law, the Department of Industrial Relations will determine the maximum amount or cap of weekly benefits provided to employees receiving PFL.  AB 908 also removes the seven-day waiting period required before an employee receives PFL benefits.

AB 1661 – Mandatory Sexual Harassment Training for Local Agency Officials
Effective Date: January 1, 2017
Amends Chapter 2, Part 1 of Division 2 of Title 5 of the Government Code and creates Article 2.4.5 (commencing with Section 53237)

AB 1661 requires that if a local agency official receives any type of compensation, salary, or stipend, then that local agency official must receive at least two hours of sexual harassment prevention training and education within the first six months of taking office.  Moreover, local agency officials must receive this training at least once every two years.  “Local agency officials” includes any member of a legislative body and any elected officials of cities, counties, and special districts. 

AB 1676 & SB 1063 – Prohibitions on Wage or Salary Discrimination Based on Sex, Race, or Ethnicity
Effective Date: January 1, 2017
Amends Labor Code Sections 1197.5 and 1199.5

Existing California law prohibits employers from paying an employee at wage rates less than the rates paid to employees of the opposite sex for substantially similar work under the Fair Pay Act.  The Fair Pay Act provides exceptions for wage differentials based upon certain factors, including existing employer seniority, merit, or earnings systems, and “bone fide factors” other than sex, including education, training, or experience.  AB 1676 amends the Fair Pay Act to prohibit employers from using an employee’s prior wage or salary history alone as a “bone fide factor” to justify a wage differential.  SB 1063 expands the protections of the Fair Pay Act to prohibit discrimination and wage disparities based on an employee’s race or ethnicity. 

AB 1732 – Single User Restrooms
Effective Date: March 1, 2017
Creates Article 5 (commencing with Section 118600) of Chapter 2, Part 15 of Division 104 of the Health and Safety Code

AB 1732 requires all single user restroom facilities in any California businesses, government agencies or buildings, and places of public accommodation to be identified as all gender restrooms.  A “single user restroom” is defined as a toilet facility with no more than one water closet and one urinal that can be locked by the occupant.  AB 1732 will effectively require employers and businesses to change or remove their existing “male” or “female” signage for applicable restrooms.  However, these changes are not required until March 1, 2017.  The new law also authorizes inspectors, building officials, and other local officials responsible for code enforcement to inspect for compliance during any inspection. 

AB 1843 – Juvenile Criminal History in Applications for Employment
Effective Date: January 1, 2017
Amends Labor Code Section 432.7

AB 1843 prohibits employers from asking prospective employees to disclose information regarding “an arrest, detention, process, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”  Employers are prohibited from using such information or records when making decisions to hire or determining conditions of employment.  However, AB 1843 provides for an exception for health facility employers to look into an applicant’s juvenile criminal history, other than sealed records, if the applicant committed a felony or misdemeanor for sex crimes or certain controlled substances within five years from the date of applying for employment. 

AB 2028 – Reinstatement in PERS for Public Employees Who Are Involuntary Terminated on or After January 1, 2017
Effective Date: January 1, 2017
Creates Government Code Section 20969.3

Existing California law requires an employee who has retired under the Public Employees’ Retirement System (“PERS”) following an involuntary termination of employment to be reinstated to membership in that system, effective as of the date from which salary was awarded, if the employee was reinstated to employment pursuant to an administrative or judicial proceeding.  AB 2028 expands the existing law and requires an employee to be reinstated in PERS, without regard to their retirement status, after being involuntarily terminated, if the employee is reinstated to employment pursuant to an administrative, arbitral, or judicial proceeding after January 1, 2017.  Employers are additionally required to notify the PERS board of the final decision ordering the employee’s reinstatement into PERS.

AB 2063 – Work Experience Education Programs for Students Ages 14 Years or Older
Effective Date: January 1, 2017
Amends Education Code Sections 51760.3 and 51769

AB 2063 provides students, at least 14 years old, with the opportunity to participate in work experience education programs.  AB 2063 also increases the number of hours per week a student may participate in job shadowing from 25 to 40 hours per semester, if the principal of the school certifies that it is necessary for the student’s participation in a career technical education program.

AB 2261 – DLSE Can Now Bring Actions for Labor Code Violations Without an Employee Complaint
Effective Date: January 1, 2017
Amends Labor Code Section 98.7

AB 2261 expands the enforcement authority of the California Department of Labor Standards Enforcement (“DLSE”) to bring actions against employers for violations of the Labor Code.  The new law provides the DLSE with broad and independent discretion to bring actions against employers even without an employee’s complaint.

AB 2337 – Employment Protections for Victims of Domestic Violence, Sexual Assault, or Stalking
Effective Date: July 1, 2017
Amends Labor Code Section 230.1

AB 2337 applies to employers with 25 of more employees.  Starting July 1, 2017, covered employers will be required to provide specific written information regarding the right to take leave for domestic abuse, sexual assault, or stalking to new employees upon hire and to other employees upon request.  The law states that the Labor Commissioner will develop a form providing notice that will be posted on the Labor Commissioner’s website.  Covered employers are not required to comply with the new law until the Labor Commissioner has posted the form.  Covered employers can either elect to use this form or create their own form to comply with the provisions of AB 2337.

AB 2393 – Updates To School Employees’ Rights Regarding Sick or Parental Leave
Effective Date: January 1, 2017
Amends Education Code Section 44977.5 and creates Sections 45196.1, 87780.1, and 88196.1

Existing California law allows teachers and other certificated employees of K-12 and community college districts to receive up to 12 weeks of differential pay when they take “parental” leave to bond with a new child following, birth, adoption or placement for foster care. “Differential pay” is the difference between the certificated employee’s salary and the amount actually paid to the covering substitute teacher or employee.  Existing law also applies these provisions to certificated employees who are fathers, adoptive parents, and same-sex couples.  However, existing law did not apply to other “classified” school employees, including bus drivers, cafeteria staff, buildings and grounds workers, or teaching assistants.  These other “classified” school employees are only entitled to 12 weeks of unpaid parental leave under the California Family Rights Act and Family Medical Leave Act.  AB 2393 expands the existing law to apply to “classified” employees who were not previously covered.  Employers will now be required to provide differential pay to these “classified” in addition to their “certificated” employees.

AB 2828 – Data Breach Notification Law
Effective Date: January 1, 2017
Amends Civil Code Sections 1789.2 and 1798.82

Existing California law required persons or businesses conducting business in California that owns or licenses computerized data that includes personal information to disclose any security breaches or leaks without unreasonable delay.  This requirement also applies to state and local agencies.  AB 2828 expands the existing law to apply to encrypted data breaches if the encryption keys have also been compromised.  “Encrypted” data means information that is rendered unusable, unreadable, or indecipherable without the use of an encryption key.  The new law also provides specific procedures for noticing victims of security breaches. 

AB 2843 – Employee Contact Information Exempted from CPRA
Effective Date: January 1, 2017
Amends Government Code Sections 6253.2 and 6254.3

Existing California law under the California Public Records Act (“CPRA”) requires public disclosure of certain information as required by statute subject to exemptions.  AB 2843 expands the existing exemptions to prevent the disclosure of home addresses and telephone numbers to now cover all public employees, including certain individuals compensated by the state to provide in home support services.  AB 2843 also extends the exemptions to include personal cell phone numbers and dates of birth.  However, public agencies will still be required to disclose telephone numbers of represented employees to their bargaining unit representatives, as required by California labor law.

AB 2899 – Employers Must Post Bond Before Appealing Labor Commissioner Citations
Effective Date: January 1, 2017
Amends Labor Code Section 1197.1

AB 2899 requires employers to first post a bond with the Labor Commissioner prior to appealing any decision by the Labor Commissioner relating to violations of the labor code.  The bond must be issued in favor of the unpaid employee and the bond amount must cover the total amount assessed by the Labor Commissioner’s citation, including all minimum wages, liquidated damages, and overtime wages, except penalties.  Employers must pay the amounts owed to the employee within 10 days of the conclusion of the Labor Commissioner’s proceedings or the bond will be forfeited to the employee.

SB 1001 – Prohibited Unfair Immigration Related Practices
Effective Date: January 1, 2017
Creates Labor Code Section 1019.1

SB 1001 creates new protections for immigrant employees and makes it unlawful for employers to request additional or different documents than those already required under federal law to verify that an individual is authorized to work, including the I-9 process.  SB 1001 also prohibits employers from refusing to honor documents that reasonably appear on their face to be genuine, or work authorization documents based on the specific status or term that accompanies the authorization to work.  Moreover, employers cannot attempt to re-investigate or re-verify an existing employee’s work authorization.

The new law authorizes applicants and employees to file complaints against employers for alleged violations of SB 1001.  Violations will subject employers to penalties not to exceed $10,000. 

SB 1167– Heat Regulations for Indoor Workers
Effective Date: January 1, 2019
Creates Labor Code Section 6720

SB 1167 requires the Division of Occupational Safety and Health to create and adopt standards to minimize heat related illnesses and injuries for indoor workers by January 1, 2019.  The new standards are required to be based on environmental temperatures, work activity levels and other applicable standards.  Employers should be ready to implement policy changes regarding heat regulations once the Division of Occupational Safety and Health officially adopts its standards. 

SB 1180– Public School Employees Who are Military Veterans to Receive Increased Leave
Effective Date: January 1, 2017
Creates Education Code Sections 44978.2 and 45191.5

“Certificated” and “classified” public school employees hired on or after January 1, 2017, who are disabled military veterans are entitled to additional sick leave days during their first year of employment.  To qualify under the new law, “certificated” and “classified” employees must have military service related disabilities rated at 30 percent or more by the United States Department of Veteran Affairs.  Qualified “certificated” and “classified” employees that are full time, year around employees will be provided with 12 days of additional paid leave to allow for medical treatment related to their military service related disabilities.  Qualified “certificated” and “classified” employees who only work 10 months out of the year will be provided with 10 additional days.    However, these provisions are not meant to supersede any rights conferred under collective bargaining agreements entered into by the employers that provide for longer periods of leave.


News: Worthy

2016 Legislative Update

The 2016 Legislative Session has wrapped up with Governor Brown taking action on many significant bills. 

Governor Brown signed AB 1386 (Low) which expands the immunity protections for use of EPI pens.  An authorized entity that provides EPI pens would still maintain immunity related to their use.

AB 1643 (Gonzalez) would have prevented employers from asserting apportionment to conditions such as pregnancy, osteoporosis and carpal tunnel syndrome in workers’ compensation claims.  Governor Brown issued a rather stern veto message as he stated “This bill is poorly drafted and reflects a seriously flawed understanding of both the workers’ compensation system and the nature of physical disability that may result from a work-related injury.”  A similar bill has been introduced multiple times so this may be back as part of next year’s session.

Governor Brown also vetoed SB 897 (Roth) which would have doubled the exposure to Labor Code 4850 benefits in cases where a safety officer sustained a “severe” injury or a “catastrophic injury at the hands of another.”  The Governor noted the financial constraints many public agencies face and suggested “the decision on how to handle cases such as this is best left to the local jurisdiction.”

Governor Brown signed SB 1160 (Mendoza) which will make a number of substantial changes with regard to the filing of liens and utilization review for workers’ compensation claims. As of January 1, 2017, lien claimants must now meet a number of criteria in order to file a valid lien.  This bill also limits an employer’s ability to perform utilization review during the first 30 days of a claim.  It also requires utilization review programs to be formally accredited as of January 1, 2018. 

If you have any questions, please contact Jeff Rush, Workers’ Compensation Program Manager.


News: Worthy

Training Calendar for 2017

In an effort to ensure that training is made available regionally in the most effective manner, the Authority’s Training Division is embarking on a proactive and collaborative regional training model.  During late August, an e-mail was sent to member training registrars requesting input on training planning for 2017.  Based on this input, the Authority will then schedule trainings with a hosting member within reasonable proximity to other members in advance of the calendar year. 

If you have yet to do so, please take the time to provide feedback regarding the trainings your agency would like scheduled for 2017.  Once received, members will be contacted by Michelle Aguayo, Training Coordinator, to schedule the training dates in concert with surrounding member agencies.

With this process, a membership-wide training calendar will be set for the 2017 calendar year.  This will lead to more efficient and effective scheduling of training. 

To review the training calendar, complete with upcoming trainings, please visit the Authority’s website at cjpia.org and log into myJPIA. 

For further information regarding this, or to discuss your agency’s training needs, please contact Ryan Thomas, Training and Loss Control Specialist.


News: Worthy

Injury and Illness Prevention Program Policy Template Update

By Abraham Han, Administrative Analyst

The State of California requires a written and effective Injury and Illness Prevention Program (IIPP) for every employer in order to comply with California Code of Regulations, Title 8, Section 3203 (Injury and Illness Prevention Program). In addition to the IIPP as a requirement, an effective IIPP helps employers to reduce risk exposures and losses associated with workplace accidents and injuries.

The Authority has recently updated the IIPP template to include the need for an agency to conduct trainings and inspections whenever new substances, processes, procedures, or equipment is introduced to the workplace that represents a new occupational safety or health hazard.

Members should replace any prior versions of the IIPP template with the updated template to ensure consistency and compliance with the state’s requirements.

The updated IIPP policy template is available to members via the Resources and Documents section of the Authority’s website, under the category of “Policy Templates.” The template is in Microsoft Word format so that members can make agency-specific modifications, as needed.

As with any policy, successful implementation of the IIPP depends on an agency reviewing the program with all applicable employees.  If you have any questions regarding the IIPP, members may contact their assigned risk manager.


The Court Report

Hugging Employee, Kissing on Cheek, Can Give Rise to Lawsuit

(Reprinted from the Metropolitan News Enterprise, November 10, 2016)

The Ninth U.S. Circuit Court of Appeals yesterday reinstated a sexual harassment action against the sheriff of Yolo County, holding that the District Court erred in granting summary judgment to the defendant on the notion that hugs and kisses on the cheek are insufficient to support such an action.

The reversal, announced in a memorandum opinion, reinstates the lawsuit brought against Sheriff Edward G Prieto by county correctional officer Victoria Zetwick under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act.

Yesterday’s opinion—signed by Circuit Judges Susan P. Graber  and Mary H. Murguia, as well as U.S. District Judge Mark W. Bennett of the Northern District of Iowa, sitting by designation—reverses the decision of Judge Troy L. Nunley of the Eastern District of California.

“We hold that a reasonable jury could conclude that the differences in hugging of men and women were not, as the defendants argue, just ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’,” the opinion said, quoting language from a 1998 U.S. Supreme Court decision. It continued:

“Rather, a reasonable jury could find an objectively hostile or abusive environment, because of the nature, frequency, permanence, and cumulative effect of the conduct towards women in general and Zetwick in particular.”

The panel declared that Nunley erred in inferring from past decisions a “rule” that hugging coworkers and kissing them on the cheek are acceptable workplace behavior. It said:

This ‘rule’ was created from just a few non-binding district court decisions. One of those decisions was twenty years old and another was fourteen years old at the time of the district court’s decision. Thus, those decisions likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace—a decision more appropriately made by a jury. More importantly, in one of those decisions, the court explained that flirting, hugging, and even kissing in the workplace “are very ordinary things that people do and are not per se intimidating, hostile, humiliating, or offensive,” but such conduct can, nevertheless, become unlawful when it ‘is both unwelcome and pervasive.’ ”

The opinion also said that Nunley erred in assuming that Zetwick had a burden of showing that Prieto’s conduct was both “severe and pervasive,” explaining:

“The proper standard, however, is whether the defendant’s conduct was ‘severe or pervasive.’ ”

A third error was found. The panel said that Nunley applied “a sort of ‘mathematically precise test’ to determine that Zetwick’s environment was not hostile, based on its calculation that Zetwick had been hugged only a few times a year for a few seconds each time.”

The U.S. Supreme Court, the judges said, has rejected such a test. They added: “Even if such a mathematical test were appropriate, there is a factual dispute as to its computation.”

The case is Zetwick v. County of Yolo, 14-17341.


The Court Report

Court of Appeal Rejects Claim That Officer’s Removal From SWAT Team Violated State Law

(Reprinted from the Metropolitan News Enterprise, November 10, 2016)

A chief of police did not violate the Public Safety Officers Procedural Bill of Rights Act by removing an officer from a SWAT team and other assignments, even though the chief found after a hearing that the officer had not committed misconduct justifying termination, the Fourth District Court of Appeal has ruled.

Div. Three yesterday ordered publication of its Oct. 20 opinion affirming an Orange Superior Court judge’s ruling in favor of the City of Westminster in a suit brought by Officer Brian Perez. It was the second time the case, stemming from a November 2007 incident in which a bar patron claimed to have been struck by another officer, was before the court.

As part of the department’s investigation into the incident, Perez was interviewed by two supervisors, during which time he said he had not observed any officer strike the patron. He was then admonished that a videotape clearly showed an officer striking the patron while Perez was nearby.

A second interview took place a couple of weeks later, with an attorney present. Perez reiterated that he had not seen anyone strike the patron, but said that did not mean that such an act had not occurred.

Six weeks after that incident, the department served him with a notice of intended termination, finding that he had been intentionally dishonest in the interviews. Following an appeal, Chief of Police Andrew Hall found that there was insufficient evidence to sustain the charge of dishonesty.

The chief subsequently removed Perez from the SWAT team and a department honor guard. In addition, the department stopped sending officers to him for field training.

Perez brought a statutory claim against the city, to which the city did not respond. He filed suit in April 2009, claiming that the city violated his rights during the interviews, and that his removal from special assignments also violated the act.

The trial judge granted the city’s motion to strike under the anti-SLAPP law, finding that all of the alleged violations arose from protected activity and that Perez was unlikely to prevail on the merits. The Court of Appeal, in an unpublished 2011 opinion, reversed, saying the alleged violations did not arise from protected activity, and returned the case to the trial court to be heard on the merits. On remand, Judge Ronald L. Bauer found that the only violations committed by the city consisted of failing to provide required warnings during the first interview. The judge determined that the violations were not malicious or done with intent to harm, so Perez received no monetary damages.

The only relief awarded was an injunction requiring the department to train its officers regarding proper interrogation procedures under the act.

As for the loss of his SWAT and other positions, the judge found that there was “no evidence” to support a claim that a violation of the Bill of Rights Act had occurred. He credited Hall’s testimony that the actions were not punitive, but were undertaken because the chief “had lost a great deal of confidence in” Perez.

Justice Richard Fybel, writing for the Court of Appeal, said there was “more than substantial” evidence to support Bauer’s ruling that Hall did not violate statutory rights by taking away Perez’s “collateral assignments.”

Removal from such an assignment, the justice explained, constituted “normal management of the department,” not punishment, and thus did not qualify for an exception to the usual rule that an action not resulting in loss of pay is not considered punitive.

He cited cases holding that loss of prestige, loss of the opportunity to earn future overtime compensation, and a transfer to another assignment with no change in pay were not punitive. Fybel distinguished cases cited by the plaintiff, which involved reduction in salary, transfer to a lower paying position, and a reassignment resulting in loss of pay.

The plaintiff, he said, did not rebut Hall’s testimony that his removal from the assignments was not undertaken in retaliation for his exercise of his rights under the Bill of Rights Act. He also noted that Perez could have initiated a grievance under his union contract, but didn’t.

The case is Perez v. City of Westminster, 16 S.O.S. 5646.


The Court Report

Court of Appeal Limits Scope of FEHA Retaliation Provision

(Reprinted from the Metropolitan News Enterprise, November 14, 2016)

The retaliation provision of the Fair Employment and Housing Act does not protect an employee who complains about an employer’s alleged discrimination against its consumers, the First District Court of Appeal has ruled.

Div. Five Wednesday affirmed a San Francisco Superior Court judge’s grant of summary judgment to the defendants in an action brought by David Dinslage, a retired employee who worked for the city’s Recreation and Parks Department for 38 years.

Dinslage said he was forced to retire after the city eliminated his position of coordinator of assistive services as part of 2010-2011 budget cuts and did not hire him for another position. His role as coordinator was to organize recreational opportunities for disabled children and adults.

City officials said it was necessary to eliminate Dinslage’s job, along with those of nearly 150 other employees, because the department was under orders from then-Mayor Gavin Newsom to cut $12.4 million from its budget. The department said it was able to identify $8.7 million in new revenue sources, but that $3.7 million in actual cuts were needed.

The decision to include Dinslage’s position among those cut, the department said, stemmed in part from a philosophical shift in focus—from having separate programs for the disabled to finding ways to include them in programs designed for the public as a whole. Dinslage was not hired for another position, it said, because he did poorly in a second round of interviews—featuring more than 100 candidates—partly due to his continuing resentment over the elimination of his post and questioning of the reorganization that he would have to help implement if hired. 

Dinslage claimed that the city retaliated against him over his advocacy on behalf of the disabled children and adults he had been serving and his opposition to the shift in programming, as well as his opposition to a proposal—which the Recreation and Parks Commission ultimately rejected—to relocate an annual car show, the proceeds of which are donated to the department specifically to support disabled programming, from Golden Gate Park.

He also claimed he was discriminated against because of his age.

Presiding Justice Barbara J.R. Jones, writing for the Court of Appeal, agreed with Superior Court Judge Ernest H. Goldsmith that the plaintiff failed to present a prima facie case of age discrimination or FEHA retaliation.

Age discrimination, Jones said, cannot be inferred solely from the fact that Dinslage was 60 years old when he suffered an adverse employment action. The government’s arguments that Dinslage was laid off because of the budget crisis and that he was not rehired because he interviewed poorly and opposed the refocusing of the disabled programs were legitimate, were supported by the evidence, and were not rebutted by proof of pretext, the presiding justice concluded in an unpublished portion of the opinion.

In the published part, Jones rejected the contention that Dinslage’s advocacy on behalf of separate programs for the disabled, his opposition to the relocation of the car show, and his general opposition to what he saw as discrimination by the department against the disabled constituted protected activity that would support a retaliation claim.

The FEHA, the jurist noted, creates a cause of action for retaliation where the employee has suffered adverse action as a result of opposing “any practices forbidden under” that act.  She acknowledged that under the case law, opposition to a practice that is found not to be unlawful may support a claim, as long as the employee’s mistaken belief that the practice was unlawful was reasonable.

Dinslage’s claim fails, however, because he could not reasonably have believed that the department was engaged in an unlawful practice with regard to employment, Jones wrote.

She cited state and federal cases that an employment retaliation claim could not be based on an employee’s opposition to alleged racial discrimination against citizens by fellow employees, or on conduct by the employer that allegedly harmed the environment.

Jones also cited federal cases holding that even if the employee opposed an employment practice, a retaliation claim will not lie if no reasonable person would believe the practice to be unlawful based on indisputable facts, as when an employee claimed to have been disciplined for opposing a requirement to submit employment-related claims to binding arbitration.

The case is Dinslage v. City and County of San Francisco, 16 S.O.S. 5661.