36 Cal.App.5th 262
Cal. Ct. App.2019Background
- Thomas Conger, a Los Angeles County Sheriff’s sergeant, was promoted to lieutenant on November 1, 2015, subject to a six-month probationary period.
- In April–May 2016 the Department investigated an alleged use-of-force incident from May 21, 2015 (before promotion), relieved Conger of duty, extended his probation, and then released him from the probationary lieutenant position.
- The Department’s “Report on Probationer” concluded Conger failed to report or document the use of force and recommended returning him to sergeant.
- Conger sought administrative review under POBRA §3304(b) (claiming a denial of promotion on non‑merit grounds or a demotion) and the County denied a hearing; the Civil Service Commission also denied a hearing.
- Conger petitioned for writ of mandate in superior court seeking an administrative appeal and attorney fees; the trial court denied relief, concluding the action was a merit‑based denial of promotion (not a demotion) and that there was no evidence the negative evaluation would cause future punitive consequences.
- The Court of Appeal affirmed: the Department’s action was a denial of promotion (not a demotion), it was based on merit‑related grounds substantially tied to lieutenant duties, and Conger presented no evidence the evaluation would produce future punitive consequences triggering POBRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was rescinding Conger’s probationary promotion a demotion (punitive) or a denial of promotion? | It was a demotion/punitive action entitling Conger to a POBRA administrative appeal. | It was a denial of promotion during probation (non‑punitive) and thus not an automatic appealable punitive action. | Denial of promotion: returning a probationary promotee to prior rank is a non‑punitive denial of promotion. |
| Was the denial "on grounds other than merit" under §3304(b)? | The Department relied on pre‑probation conduct, so the denial was on non‑merit grounds. | The failure to report/use-of-force findings are substantially related to lieutenant duties and thus merit‑based. | Merit‑based: the reasons were substantially related to successful performance as lieutenant, so §3304(b) does not require a hearing. |
| Can a negative probationary evaluation that sits in personnel files trigger POBRA because it might affect future promotions? | Yes — adverse findings that could affect future opportunities should be treated as punitive and permit a hearing. | No — potential future impact that results in denial of promotion on merit grounds does not convert a merit denial into a listed punitive action under §3303. | No: absent evidence the evaluation will lead to one of POBRA’s listed punitive actions, mere possibility of future adverse effect is insufficient. Conger produced no evidence of concrete future punitive consequences. |
| Is Conger entitled to statutory civil penalties and attorney fees under §3309.5 / CCP §1021.5? | Entitlement follows if the court finds POBRA rights were violated. | No entitlement because POBRA was not violated. | Not reached on the merits because the court affirmed; fees and penalties not awarded. |
Key Cases Cited
- White v. County of Sacramento, 31 Cal.3d 676 (court recognized demotion as per se disciplinary under POBRA)
- Swift v. County of Placer, 153 Cal.App.3d 209 (probationary rejection is not a punitive action requiring a hearing)
- Guinn v. County of San Bernardino, 184 Cal.App.4th 941 (returning a promoted permanent employee to prior rank during promotional probation is a denial of promotion, not a demotion)
- Henneberque v. City of Culver City, 147 Cal.App.3d 250 (reversal to prior rank treated as a demotion in that factual context; court distinguished on facts)
- Hopson v. City of Los Angeles, 139 Cal.App.3d 347 (administrative findings placed in file that department leaders said would harm careers could be punitive)
- Caloca v. County of San Diego, 72 Cal.App.4th 1209 (citizen review findings of serious misconduct could trigger hearing because they likely affect future personnel decisions)
- Otto v. Los Angeles Unified Sch. Dist., 89 Cal.App.4th 985 (memorandum warning of future discipline in personnel file may warrant POBRA hearing)
- Los Angeles Police Protective League v. City of Los Angeles, 232 Cal.App.4th 136 (refused to treat an action as punitive solely because it might reduce promotional opportunities)
- Morgado v. City & County of San Francisco, 13 Cal.App.5th 1 (POBRA administrative appeal requires an evidentiary hearing before a neutral factfinder)