Barberic v. City of Hawthorne

• Citation: 669 F. Supp. 985
• Decision Date: 10 September 1987
• Docket Number: CV 85-1183 SVW(Kx).
• Parties: Shari V. BARBERIC, Plaintiff, v. CITY OF HAWTHORNE, a Municipality, et al., Defendants.
• Court: U.S. District Court — Central District of California

669 F. Supp. 985

Shari V. BARBERIC, Plaintiff, v. CITY OF HAWTHORNE, a Municipality, et al., Defendants.

CV 85-1183 SVW(Kx).

United States District Court, C.D. California.

September 10, 1987.

COPYRIGHT MATERIAL OMITTED

Gerald M. Sato, Allred, Maroko, Goldberg & Ribakoff, Los Angeles, Cal., for plaintiff.

Richard Terzian, Adams, Duque & Hazeltine, Los Angeles, Cal., for defendants.

MEMORANDUM OF OPINION

WILSON, District Judge.

Plaintiff Shari Barberic brought this action pursuant to 12 U.S.C. § 1983 against the City of Hawthorne (the City) and its Chief of Police, Kenneth Stonebraker, claiming that her involuntary psychological disability retirement as a police woman with the City's police department violated her due process rights under the Fourteenth Amendment to the Constitution and her right of free expression under the First Amendment.

Specifically, Barberic claims, first, that she was deprived of a protected property interest without due process because she was denied an adequate hearing prior to her involuntary retirement. Second, she claims that the stigmatizing publication of her psychological disability retirement without a prior "name clearing hearing" deprived her of a protected liberty interest without due process. Finally, plaintiff claims that defendants' decision to retire her violated her First Amendment rights because it was based upon her exercise of her constitutionally protected right of free expression.

The court finds for plaintiff on both due process claims and finds for defendants on the First Amendment claim.

FACTUAL BACKGROUND

Plaintiff Barberic had a short (two and one-half years) but tumultuous employment as a policewoman with the City. According to Chief Stonebraker, Barberic set a department record for having ten complaints filed against her for use of excessive force in the line of duty. As a result of these incidents, five lawsuits had been filed against Barberic.

Although these complaints of violence were never substantiated, on or about March 21, 1983 Stonebraker removed Barberic as a patrol officer and assigned her to the detective desk to investigate fraud cases. Stonebraker testified that he did this because under the laws of California a police officer's personnel file is available to defense counsel in certain criminal cases for impeachment purposes and Barberic's file would make her vulnerable as a witness.

Several months after being removed from patrol duty, on August 18, 1983, Barberic without permission took over a patrol shift for another officer, her husband Dennis Barberic, and got into an altercation with an arrested suspect. As a result of this altercation, Barberic sustained injuries which required her to be off duty until October 17. Stonebraker testified that loss of work time due to injuries had been a recurring problem with Barberic.

Subsequently, on November 25, 1983, Stonebraker ordered Barberic to consult the City's retained psychologist, Dr. Robert Shomer, for psychological evaluation. Barberic saw Dr. Shomer in December 1983 and January and February 1984. Dr. Shomer's report of February 6, 1984 indicated that Barberic had some problems with stress and aggression, and suggested that she be given the opportunity to seek counselling. Dr. Shomer recommended that Barberic not return to patrol duty at that time and that she be reevaluated before returning to patrol duty. Dr. Shomer's report did not contain a recommendation that Barberic be retired or otherwise removed from the police force due to psychological problems.

Meanwhile, Barberic had become very upset when she learned that Deputy District Attorney Steven Kay had decided to prosecute only misdemeanor charges against the suspect who had injured her. Barberic met with Kay and, according to Kay, stated in response to Kay's refusal to bring felony charges that "next time I'll know what to do, I'll shoot him." Kay testified that because Barberic seemed quite serious when she said this, he told her that if she was ever engaged in a shooting incident, he would remember her comment. Thereafter, against Stonebraker's orders, Barberic wrote a letter to the District Attorney's office on January 4, 1984, complaining about Kay and requesting an investigation.

According to Stonebraker, this was the "straw that broke the camel's back." On January 23, 1984, Stonebraker proffered disciplinary charges against Barberic on the grounds of insubordination and willful disobedience. On February 9, a hearing was held regarding the charges. The meeting was attended by Barberic, her attorney Richard Kreisler, Administrative Captain David Barnes, and Chief Stonebraker. Stonebraker took the matter under submission at that time.

The date of the next meeting was either February 16 or 23 (the record is unclear) but will be referred to hereafter as the February 16 meeting. On that date, the same individuals gathered to hear Stonebraker's disposition of the disciplinary charge. Stonebraker informed plaintiff that the insubordination and disciplinary charges were sustained but that he would not impose any discipline because he had determined that Barberic was psychologically unsound. Stonebraker informed her that he was recommending that the City apply for disability retirement benefits on her behalf through the California Public Employees Retirement System ("PERS") and that she would be placed on administrative leave at full pay pending PERS' processing of the application. Barberic was then required to give up her gun and badge.

PERS is a state-wide system which local entities (called "contracting agencies") may join to provide disability retirement benefits for their employees. Cal.Government Code §§ 21020-21034 (West 1985). Although normally the PERS Board determines whether an applicant is disabled and thus eligible for retirement benefits, in the case of a "local safety member" such as a police officer, the governing body of the contracting agency is required to make that determination. Cal.Government Code § 21024 (West 1985). Here, the City, as governing body, delegated the authority to make the final determination regarding Barberic's disability retirement to its City Manager, Kenneth Jue.

There is no record of the date on which Jue made his decision, nor of the evidence on which he relied. The evidence did show, however, that Stonebraker had informed Jue a number of times during the preceding year of his difficulties with Barberic.

Barberic and her attorney unsuccessfully attempted to obtain a hearing regarding Stonebraker's decision to sustain the insubordination and disciplinary charges in accordance with the existing department regulations regarding disciplinary decisions. Barberic did not, however, request a hearing regarding Stonebraker's decision to have her retired.

On April 7, 1984, while the retirement application was still pending, Stonebraker told a local newspaper reporter, Irene Perry from the Torrance Daily Breeze, that the City was retiring Barberic because of psychological unfitness. This information was published in the newspaper on April 9, 1984. Barberic's retirement due to psychological disability was also noted in her personnel file.

Finally, in mid-April 1984, PERS approved the City's application and on April 14, 1984 Barberic was retired from the force. Her retirement provided her with payments approximately equal to one-half of her previous salary plus other benefits.

As a result of these events, Barberic suffered extreme emotional upset. She was unable to seek other employment for many months and received psychological treatment. In or around June 1985, Barberic obtained work as a security guard at the May Company. In February 1986, Barberic began working as a police officer with the Southern California Rapid Transit District.

DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS

Existence of a Property Right

To prevail on her first claim for deprivation of property without due process, Barberic must first establish that she had a property right in continuing her employment as a police officer as opposed to being involuntarily retired on a disability. If she did, the City could not deprive her of her employment without due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Property interests are not created by the Constitution, but "are created by and their dimensions are defined by ... an independent source such as state law. ..." Roth, id, at 577, 92 S.Ct. at 2709. A property right can be founded on an explicit statute or on a rule, policy or understanding that supports a plaintiff's claim of entitlement to a particular benefit. Id.

In support of their argument that Barberic had no such right, defendants cite three cases which they contend hold that a public employee in California has no legal right to either active or retired status. Winslow v. City of Pasadena, 34 Cal.3d 66, 192 Cal.Rptr. 629, 665 P.2d 1 (1983); Tielsch v. City of Anaheim, 160 Cal. App.3d 576, 206 Cal.Rptr. 740 (1984); Cansdale v. Board of Administration, PERS, 59 Cal.App.3d 656, 130 Cal.Rptr. 880 (1976). The court believes that, if anything, these cases suggest that an employee may indeed have a property right in disability retirement benefits.¹ However, more importantly, the court finds these cases inapposite since the issue is not whether Barberic had a right to retirement benefits but whether she had a right to maintain her employment and not be involuntarily retired.

It is well accepted that a California police officer has a protected property right in his or her employment. This property right derives largely from Cal.Government Code § 3304(b) (West 1985) which provides that no public safety officer may be subjected to punitive action or denied a promotion on grounds other than merit without having the opportunity for an administrative appeal. Punitive action includes...