|
Reading Betwen the Lines:
When punitive action is disguised as educational counseling
by Enrique "Rick" Torres, Arbitration Coordinator, West Sacramento
Communication in the workplace can be delicate and complicated interactions, particularly when they occur between an employee and a supervisor. While the majority of workplace discussions are clear and straightforward, there are instances where the employer might disguise a punitive action and present it as an educational counseling - a counseling that is documented in a personnel file and used as a basis for future adverse action.
It is important to understand the difference between the two, not only because a punitive action can be a future hindrance to an officer's career, but also because it gives rise to appeal rights under Government Code Section 3304, the Public Safety Officers Procedural Bill of Rights Act (POBOR).
In Otto v. Los Angeles Unified School District, the 2nd District Court of Appeals provides some guidance regarding the effects of documented counseling communications between employees and supervisors. (Otto v. Los Angeles Unified School District, 89 Cal. App. 4th 985.) The Otto court evaluated whether a written memo that documents a counseling session between a peace officer and a supervisor qualifies as punitive action, so as to trigger an officer's right to an appeal under POBOR. The court found that to meet the "punitive" requirement in POBOR, a counseling document need only contain adverse comments that may lead to punitive action against the employee, regardless of what the department calls the document.
In this case, Kevin Otto and Alex Barrios, two public safety officers employed by the Los Angeles Unified School District, sought a writ of mandamus to compel the school district to grant them an administrative appeal under POBOR. The officers alleged that the school district unlawfully denied them an appeal from "summary of conference" memos placed in their files by a supervisor. The school district argued that the Barrios and Otto summary memos were not discipline, but only a documentation of a meeting where the supervisors provided assistance and guidance to employees under their supervision.
The trial court found that the officers were not entitled to administrative appeals because the memos did not constitute punitive actions. The appellate court partly reversed and partly affirmed the trial court's judgment. Regarding Otto, the court reversed the trial court by finding that the summary memo constituted a punitive action because the memo warned Otto of the possibility of future disciplinary action. Concerning Barrios, the appellate court affirmed the trial court's decision because his counseling document appeared to be nothing more than an educational reminder, and there was no language in his summary memo to suggest that it would be considered in future personnel decisions.
The court explained that Govt. Code Section 3304 (b) provides peace officers with the right to an administrative appeal from an employer's punitive action. The court made a distinction, however, between a punitive action and adverse comments found in a routine performance evaluation. Although an employee can appeal any action that may lead to adverse consequences, an employee does not have a right to an appeal from a routine adverse evaluation. (Cal. Gov. Code ยง 3300.)
To establish the punitive nature of the document, it is enough that it will be considered in future personnel decisions affecting the officer, and that it may lead to future punitive action. Where the document includes a "criticism for a fault" of the employee, with regard to a particular incident, the court will interpret this as a written reprimand, regardless of how the document is labeled by the employer. The court will also ignore the employer's actual intent in creating the document, and base its decision entirely on the content of the writing.
In deciding whether a document is punitive in nature, a court will rely solely on the facts and will issue opinions on a case-by-case basis.
However, as the Otto case demonstrates, a court will look to the language of the document and infer from it whether a punitive action was taken. Although a document may not by itself seem to be a punitive action, where the document refers to any future adverse action, or implies that it will be considered in future personnel decisions, an officer can safely conclude that it is punitive in nature.
But when a supervisor actually files a document in your personnel file that appears to be punitive, you should contact CCPOA's Legal Department to discuss the matter with an attorney.
 Print This Page
Back to Volume 25, Issue 3
Back to PEACEKeeper Main Page
|
