Labor & Employment Law Daily Deviation from usual investigation practices showed bias against lesbian police officer
Monday, June 4, 2018

Deviation from usual investigation practices showed bias against lesbian police officer

By Lorene D. Park, J.D.

Reversing summary judgment against Title VII and state-law claims by a former commanding police officer who alleged gender and sexual orientation discrimination, the Ninth Circuit concluded that multiple deviations from the city’s usual practice when investigating officers could lead a jury to find in her favor. Though her discrimination and hostile work environment claims were revived, the appeals court affirmed summary judgment against her constructive discharge claim (Franks v. City of Santa Ana, May 30, 2018, per curiam, unpublished).

The employee, an openly lesbian former commanding police officer, claimed the city discriminated against her because of her gender and sexual orientation in violation of Title VII and California’s Fair Employment and Housing Act (FEHA). She also asserted hostile work environment and constructive discharge claims under FEHA.

Unusual investigation suggested bias. The employee’s claims arose as a result of an anonymous complaint against her. Allegedly breaking from its standard investigation practices, the city immediately placed the employee on administrative leave without a preliminary investigation. According to the employee’s deposition testimony, this was not the only deviation from standard practice. No other employee accused of the type of conduct alleged against the employee was ever put on leave without a preliminary investigation nor placed on administrative leave based on an anonymous complaint. Moreover, no other employee had ever been subjected to an absolute “no contact” order without limiting it to the subject of the investigation.

Even the city’s personnel board, in reviewing the investigation, noted that the employee’s case appeared to have been handled differently than any others it had seen. The board questioned whether that constituted disparate treatment, especially considering she was the highest ranked female in the department’s history.

Though a federal district court found that this was not enough to raise a triable issue and granted summary judgment for the city, the Ninth Circuit reversed. Given that the personnel board, which was made up of individuals who frequently deal with internal investigations, questioned whether the city’s actions were discrimination, a reasonable jury could come to that conclusion as well, said the appeals court.

Hostile work environment claim revived too. Also reversing summary judgment on the harassment claims based on gender and sexual orientation, the appeals court explained that, “In light of the improper management of the investigation and aftermath, including ostracization, rampant rumors, and inability to effectively manage her team, a reasonable jury could find the City’s management of the investigation caused Franks to lose credibility at work and substantially interfered with her ability to do her job.”

But no constructive discharge. On the other hand, the appeals court affirmed summary judgment against the employee’s constructive discharge claim because she was not demoted, did not receive a cut in pay, and was not encouraged to resign or retire; nor did she show actions or work conditions so intolerable that a person would feel compelled to quit.

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