Why non-discriminatory conduct can still be illegal retaliation
FOR about 19 years, Maria Montoya worked as a police officer with the Los Angeles Police Department. In November 2011, while on vacation, she suffered a back injury. On Nov. 28, 2011, she sent her employer her doctor’s note, stating that she needed to be on leave for a few weeks to recover. A few days later, the Detective Commanding Officer (DCO) called Montoya to find out where she was. Montoya thought the DCO was upset. The DCO had not been notified that Montoya was on a doctor-ordered disability leave.
On Jan. 17, 2012, Montoya was cleared to return to work with light duty restrictions. On Jan. 18, 2012, the DCO told Montoya that she was being moved to the Burglary and Theft section from the Sex and Juvenile Crimes section, which she had supervised since 2009. Montoya complained to the union and the Area Commanding Officer about the move. On Jan. 19, 2012, Montoya was brought to the hospital for an apparent heart attack, later diagnosed as a severe panic attack. Montoya claimed this was a result of stress from the DCO’s actions. Montoya also claimed that the DCO made incorrect statements in Montoya’s paperwork, which delayed Montoya’s workers compensation benefits. On Jan. 26, 2012, Montoya made a formal complaint against the DCO to internal affairs, which launched an investigation.
Montoya then had to undergo a psychiatric evaluation and on Feb. 13, 2012, was deemed to be temporarily completely disabled because of stress and was placed on 60-day leave. The next week, she was stripped of her peace officer powers. Her badge and weapon were taken from her. Montoya sued the City of Los Angeles and the Los Angeles Police Department, alleging disability discrimination and retaliation for reporting the DCO to internal affairs.
The employer countered that it had non-discriminatory and non-retaliatory reasons for moving Montoya and for taking her off-duty. The transfer was necessary to address a crime trend, and without change in Montoya’s pay or benefit. Additionally, Montoya’s badge and weapon were taken away because a psychiatrist determined that Montoya was psychiatrically temporarily totally disabled.
After trial, the jury decided that although the employer is not liable for disability discrimination, it is liable for retaliation. The jury then awarded Montoya $2,101,969.00 in loss of wages, emotional distress, and future economic loss.
Why did the employee win on retaliation but not on disability discrimination?
Disability discrimination exists if an employee is fired, demoted or disciplined based on the employee’s disability or medical condition. In Montoya’s case, the jury was not convinced that enough evidence was shown to indicate that the employer was targeting Montoya because of her disability. In other words, the jury believed that Montoya was assigned to a different crime section because she was needed in that section – a legitimate reason.
However, the jury concluded that Montoya suffered retaliation. Retaliation exists where an employee engaged in a “protected activity” and was then “punished” for that activity by a firing, a demotion, a reprimand, etc. A “protected activity” includes an employee’s act of opposing a practice which is forbidden by law (e.g. disability discrimination). It is enough that the employee “reasonably” and in “good faith” believes the practice to be unlawful, even if the conduct turns out to be lawful after all.
In the case of Montoya, her “protected activity” was her report to internal affairs that the DCO was discriminating against her because of her disability. The jury believed that by subjecting her to a psychiatric evaluation and then stripping her of her badge and weapon, the employer engaged in retaliatory conduct against her, even though a discriminatory intent could not be shown.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant recoveries for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.
