City of S. Pasadena v. Pub. Emp't Relations Bd.
| Decision Date | 26 February 2021 |
| Docket Number | B304596 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CITY OF SOUTH PASADENA, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; OWEN CLIFF SNIDER, Real Party in Interest. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
ORIGINAL PROCEEDING; petition for writ of mandate. Petition granted in part and denied in part.
Liebert Cassidy Whitmore, T. Oliver Yee, David A. Urban, and Anni Safarloo for Petitioner.
J. Felix De La Torre, Wendi L. Ross, James E. Coffey, and Diana Suarez for Respondent.
McGillivary Steele Elkin, Diana J. Nobile, Matthew D. Purushotham; Bush Gottlieb and Dana S. Martinez for Real Party in Interest.
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Petitioner City of Pasadena (the City) terminated real party in interest Owen Cliff Snider for dishonesty from his position at the City's fire department (Department) after he participated in a physically intense eight-mile run while on paid leave for a work-related back injury. Snider, who was the president of the South Pasadena Firefighters' Association (Association), challenged his termination by filing an unfair practice charge (UPC) with respondent Public Employment Relations Board (PERB). Snider claimed that the City violated the Meyers-Milias-Brown Act (MMBA) (Gov. Code,1 § 3500 et seq.) by terminating him in retaliation for attempting to bargain the City's light-duty policy and filing a prior related UPC. PERB agreed with Snider and ordered the City, among other things, to reinstate Snider, pay Snider back pay, and expunge from the City's records, including Snider's personnel file, the investigative report prepared in connection with this case, the notice of intent to terminate Snider, the notice of his termination, and all references to these documents.
The City filed the instant petition for a writ of extraordinary relief, seeking an order setting aside PERB's decision. Under the deferential standard that governs our review of PERB's decision, we affirm PERB's finding that the City retaliated against Snider for engaging in activities that wereprotected by the MMBA. We, however, conclude that PERB abused its discretion in requiring the City to purge from its files all records of Snider's involvement in the Spartan Race. Accordingly, we modify PERB's order such that the City is no longer required to expunge from its records the investigative report and all references to that report and to the notice of intent to terminate and the notice of termination,2 and deny the remainder of the City's petition.
We summarize only those facts that are relevant to this writ proceeding.
Snider worked for the City as a firefighter/paramedic from 2004 to 2014 and as an engineer from 2014 until his termination on December 7, 2016. Over the course of Snider's employment with the City, he held various executive roles with theAssociation. In particular, Snider served as president of the Association in 2009 and then again from 2011 until his termination.
In October 2014, Snider injured his back while trying to lift a patient during an emergency call. Although Snider initially felt well enough to remain on duty, he soon afterwards suffered a severe back spasm that required him to visit the emergency room. He returned to work approximately one month later, after he had been placed on Injured on Duty (IOD) status (i.e., paid leave for an "on-the-job" injury). IOD status is the City's terminology for temporary total disability status under Labor Code section 4850.
During the administrative proceedings, Snider testified that he aggravated his back injury in December 2015 while he was observing a demonstration from another firefighter. He testified that standing still for extended time periods could cause his back to spasm and that he could not stand up the day after the demonstration. Snider's supervisor, Captain Chris Szenczi, instructed Snider to see his back doctor to assess his condition.
Snider visited Dr. Costigan,4 the back specialist he had been seeing ever since he suffered his previous back injury. During the administrative proceedings, Snider testified that Dr. Costigan told him: " " Snider provided the paperwork he received from Dr. Costigan to the City, and was placed on IOD status once again. As was the case when Snider previously suffered on-the-job injuries, no one from the City expressly instructed Snider to limit his physical activities or to notify the City if his condition improved before his next appointment with Dr. Costigan, which was scheduled for February 2, 2016.
On Saturday, January 30, 2016, Snider and his wife participated in the Spartan Race, which is an approximately eight-mile run over varied terrain with obstacles. Snider's wife registered both of them for the event in October 2015, before Snider re-injured his back. Snider testified that he initially did not feel as though he could complete the race following his back injury, but eventually felt well enough to resume his regular activities at some point during his leave. After the race, Snider's wife posted photographs of herself from the race on a social media site, none of which featured Snider; Snider himself did not post any photographs from the race. The race sponsor later posted the finishing times for Snider and his wife on his wife's social media account.
On January 31, 2016, Captain Szenczi also participated in the Spartan Race with his wife; at that time, Szenczi was not aware that Snider had participated in the race too. That evening, Captain Szenczi's wife showed him online pictures of Snider's wife at the race, and Captain Szenczi thought that one of those photographs was oriented in an unusual way and suspected that Snider's wife may have intentionally edited Snider's face out of the picture. The next day, Captain Szenczi's wife showed Captain Szenczi the social media postings detailing Snider's race finish time. Captain Szenczi testified that upon seeing thephotograph of Snider's wife that Szenczi believed could have been edited and the social media postings displaying Snider's finish time, Szenczi had "an indication that [Snider] may have done" the race, but Szenczi lacked "actual knowledge" that Snider participated in the race.5
On Tuesday, February 2, 2016, Captain Szenczi and Deputy Chief Paul Riddle attended a firefighting conference. Captain Szenczi told Deputy Chief Riddle that he suspectedSnider had participated in the Spartan Race based upon the photograph and the finishing time he had seen. Captain Szenczi and Deputy Chief Riddle testified that they considered Snider's participation in the race to be a "serious matter" because Snider was on IOD at that time. Yet, neither Captain Szenczi nor Deputy Chief Riddle took any further action regarding Snider's involvement in the Spartan Race at that time.
That same day, Snider went to his scheduled appointment with Dr. Costigan and said that he felt he was able to return to work. Snider delivered the required paperwork from his doctor to the City and returned to active duty. Snider testified that after he returned to work, multiple Department employees appeared to know he had run the race.
On March 2, 2016, Captain Szenczi and Snider met to discuss Snider's 2015-2016 performance evaluation. Captain Szenczi gave Snider an overall rating of "excellent," the highest possible score, and ratings of "very good" or "excellent" in almost every category. Captain Szenczi did not mention his belief that Snider participated in the Spartan Race in either the written evaluation or during the meeting. In fact, Captain Szenczi recommended that Snider start training to take the test to promote to the rank of captain. At the hearing, Captain Szenczi claimed that he did not broach the subject of the race because he still lacked "actual knowledge" that Snider had participated in it.
Around late March or early April 2016, Snider tore the meniscus in his right knee, causing him to be placed on IOD status again. On or about April 27, 2016, Snider receivedmessages from Department employees stating that Captain Szenczi was telling others that Snider could be fired for participating in the Spartan Race. In late April or early May 2016, Snider called Captain Szenczi, acknowledged running the Spartan Race, and asked Captain Szenczi whether he had told others that doing so would get him fired. Captain Szenczi denied making those comments. Captain Szenczi thereafter reported this conversation to Deputy Chief Riddle, who in turn reported it to Chief Mario Rueda in early May 2016.
In either April or the early part of May 2016, Chief Rueda approached Deputy Chief Riddle about giving Department personnel light-duty assignments while on IOD. Deputy Chief Riddle said that the City has a general light-duty policy, but the Department had not been utilizing it. At the time of this conversation, Snider was the only Department employee on IOD. Sometime after this conversation, Deputy Chief Riddle contacted Snider and directed him to report to the Department for a light-duty assignment. Snider agreed to report for duty but said he wanted to consult with legal counsel because there was...
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