Disparate Treatment: What Can You Do?

SUSAN R. JERICH
Senior Associate
Rains Lucia Stern St. Phalle & Silver, PC

“You lie, you die.” What law enforcement officer is not familiar with this phrase and principle? If your Department believes you are lying and they can prove it, you can be terminated. You potentially lose your retirement, identity, security and oftentimes much, much more. Generally, departments do not distinguish between small and big lies; a lie is a lie.
An LDF member and client of my firm, Rains Lucia Stern St. Phalle & Silver, PC (RLSSS), who worked for close to two decades at a local

sheriff’s department, was fired for dishonesty. RLSSS successfully appealed the decision using the defense of disparate treatment. At the conclusion of the hearing, the client was ordered reinstated to his job by the arbitrator. This defense basically holds that while employers do not have to punish different employees in the same way for the same misconduct, if they do not, they must be able to offer a reasonable explanation as to why. Here, they could not and did not.

In this case, the client had applied for employment with another agency and notified his department of this fact. The client’s employer obtained a copy of his application to this prospective employer and discovered what it felt were discrepancies between that application and his original job application with his current department. An internal affairs investigation was launched and it was determined that years prior, when the client had originally applied to his department, he had been untruthful about the whether he had tried marijuana. The client was fired for the perceived dishonesty.

RLSSS subpoenaed records of other employees who were believed to have been sustained for dishonesty but not fired by the department, unlike our client. In fact, one such employee was a supervisor. The records proved that some department employees got passes for dishonesty while others did not, opening the door to the disparate treatment defense. What we believed had happened did, in fact, occur. The dishonest supervisor, who had falsified time records knowingly and over a period of time, was not fired but demoted. However, by the time our appeal hearing rolled around, he was back up to the rank of supervisor.

Relying on Talmo v. Civil Service Commission, 231 Cal. App. 3d 210, the department argued, as they almost always do in these types of cases, that they had every right to fire our client because what he did erodes the public trust. They further argued that pursuant to Talmo, “there is no requirement that charges similar in nature must result in identical penalties.” Not so fast, said the arbitrator; the employer still has to offer a reasonable explanation as to why it treats apples like oranges and vice-versa. Here, they did not.

When the Skelly officer, now, a retired department commander, was asked about the supervisor who submitted fraudulent time records being demoted, not fired, the commander did not offer an explanation. In fact, when told that the demoted supervisor was again back to his original rank, the retired commander exclaimed, “Good for him!” The arbitrator was not amused. The arbitrator found that the department, by firing our client for being dishonest but not the other two employees, was not applying the “you lie, you die” standard uniformly. And because the department provided no reasonable basis for doing this, it meant that the termination of our client lacked good cause and was unreasonably disparate.

The client was reinstated and put back on the payroll, but the department tried putting up roadblocks to his actually coming back to work. LDF has authorized RLSSS to pursue these issues by way of a writ of mandamus to be heard in Superior Court. Stay tuned.

About the Author

Susan R. Jerich is a senior associate in the Rains Lucia Stern St. Phalle & Silver Legal Defense of Peace Officers Practice Group.