On July 11, 1998, the Yuba County Board of
Supervisors approved an arbitrator's recommendation that Sergeant Robert
Escovedo be reinstated to the rank of lieutenant. Escovedo had been
demoted by Sheriff Gary Tindel shortly following his marriage to a
co-worker, Sergeant Barbara Byers. Escovedo was represented by Paul Q.
Goyette of Goyette & Adams.
Escovedo has been employed by the Yuba County
Sheriff's Department since 1973 and served as a lieutenant since 1988.
Around February 1997, the department started an Internal Affairs
investigation as to whether Escovedo was committing misconduct by dating
a co-worker.
In June 1997, the department completed its Internal
Affairs investigation and found that Escovedo had been exonerated on any
allegations of misconduct. On June 21, 1997, Escovedo and Byers were
married.
On July 7, 1997, the department served Escovedo with
a document it called a "Notice of Proposed Reduction in Rank,"
where the department informed Escovedo that he would be demoted from
lieutenant to sergeant. The department relied upon a section of the Yuba
County Code that authorized them to transfer or reassign a spouse who
works with another spouse under certain conditions.
These would include the department determining
that the married couple working together interferes with the
department's ability to react to safety emergencies, interferes with
confidentiality, lessens employee morale, or creates other adverse
working conditions. While demoting Escovedo, the department
"Y-Rated" him so that he did not suffer an immediate loss in
pay. By doing so, the department argued that its action against Escovedo
was not in fact a demotion but was really a "reassignment" to
a lower rank.
At the time of his demotion, Escovedo served as a
jail lieutenant and supervised several sergeants, including his wife.
Ironically, following his demotion, the department did not reassign
either Escovedo or Byers.
Rather, Escovedo served as an additional sergeant who
worked side-by-side with the other sergeants he had previously
supervised, including his wife. In addition, the department took no
action to reassign Byers.
Department initially denied Escovedo’s appeal: Attorney
Goyette filed a timely appeal on behalf of Escovedo which the county
initially denied. The county contended that since Escovedo did not
suffer any loss in wages, he had not been subjected to punitive or
disciplinary action and, therefore, he was not entitled to any form of
administrative appeal.
Goyette countered that while Escovedo did not receive
an initial pay cut because of his "Y-Rated" status, he would
not receive wage increases that other employees were to receive under
the collective bargaining agreement. In addition, Escovedo had been a
lieutenant for approximately 10 years and had suffered significant
damage to his professional reputation in the law enforcement community.
As a lieutenant, Escovedo worked significant
amounts of overtime. As a sergeant, Escovedo worked virtually no
overtime.
After his demotion, Escovedo was required to work
graveyard or swing shift and had various weekdays off. As a lieutenant,
Escovedo worked day shifts and had weekends off. Finally, he argued that
the department violated Escovedo's constitutional rights of privacy and
freedom of association and it discriminated against him based on his
marital status.
A Petition for Writ of Mandate under CCP §1085 was
prepared to compel the county to give Escovedo an administrative appeal.
Government Code §33.04 (b) states that "No punitive action, nor
denial of promotion on grounds other than merit, shall be undertaken by
any public agency without providing the public safety officer with an
opportunity for an administrative appeal."
Despite all of the intangible and tangible harm
Escovedo suffered, the department continued to contend that the demotion
was not disciplinary action.
Prior to a court hearing, the county relented and
agreed to proceed with an administrative appeal. "At this point we
were certainly glad to get our administrative hearing. However, the
county and the department caused a long delay by simply not following
the rules and giving Mr. Escovedo the administrative hearing he was
entitled to," commented Goyette.
The administrative hearing: On June 11, 1998, an
administrative hearing was conducted before administrative law judge
Muriel Evens. At hearing, the county continued to argue that the
department's demotion of Escovedo was non-disciplinary in nature and was
strictly an administrative move to keep two spouses from working in the
same chain of command.
In addition, the county continued to argue
that Escovedo was not entitled to any administrative hearing because his
demotion was not "punitive" in nature. Finally, the county
argued that the department did not demote Escovedo, but rather
transferred or reassigned him under the County Code for allowable
administrative reasons.
The county did stipulate that Escovedo was an
excellent employee who had not committed any act of misconduct that
would have warranted disciplinary action.
Escovedo responded that he had in fact been demoted
and the demotion was punitive action. Escovedo was entitled to an
administrative hearing and had been significantly hurt by the demotion.
Goyette argued that County Code did not
authorize the demotion of an employee in circumstances where the
employee was working with his or her spouse. He cited Birdsall v.
Carrillo (1991) 231 Cal.App.3d 1426 (Legal Defense Fund case), which
requires the county to strictly follow its own rules and procedures and
does not allow the county to take action that is not authorized by its
own rules.
He also argued Escovedo's demotion was malicious in
nature, discriminated against Escovedo based on his marital status, and
violated Escovedo's civil rights.
At hearing, Judge Evens ruled from the bench that
Escovedo had in fact been demoted and that he had not been
"transferred" or "reassigned" as argued by the
county. The judge ruled that the fact Escovedo was "Y-Rated"
and did not suffer any immediate pay cut, did not change the conclusion
that he had been demoted.
Since the county did not dispute the fact that
Escovedo had committed no act of misconduct that would have subjected
him to traditional disciplinary action, the judge ordered Escovedo be
reinstated to the rank of lieutenant. The judge did not rule as to
whether the county had violated Escovedo's civil rights.
Escovedo was extremely happy with the outcome
of the case. "I have worked for the Yuba County Sheriff's
Department almost 25 years, and I have always dedicated myself to
working hard for the department. I was the highest ranking lieutenant in
the department and was shocked when the department demoted me for
nothing more than the simple fact I married another county employee.
"I have been deeply hurt by the department's
actions. For now I am just excited to get back to work as a
lieutenant", Escovedo stated.
Escovedo currently has a civil rights lawsuit pending
in the United States District Court.
