In the latest of a string of adverse legal judgments, the City of South Pasadena must reinstate the former President of its Fire Fighters’ union because his dismissal was an illegal act of retaliation, a three-member California appellate court has affirmed. The city also must pay over four years of back pay plus 7 percent interest to fire engineer Owen Cliff Snider, whose total benefits during the year of his dismissal came to $117,418, according to Transparent California.
The Feb. 26, 2021 ruling by Associate Justice Helen I. Bendix upholds a decision of the California Public Employment Relations Board (PERB) that found the timing of the city’s December 7, 2016 dismissal of Snider, who worked for the city for 12 years, amounted to retaliation.
The city is “disappointed” that the court did not overturn the PERB decision regarding the level of employee discipline, Intern City Manager Sean Joyce told the South Pasadenan News. The city’s case was “based on a good record supporting termination of the employee for cause. The city and its risk pool intend to appeal this decision.” He also noted that the city “has coverage on this matter” through two separate risk pools.
Snider suffered multiple injuries during his employment. On those occasions, his city-contracted doctor restricted him to “light duty.” But each time, the Department instead placed him on an “injured on duty” leave during which he received no work assignments.
The city investigation that led to the dismissal began in June 2016, a month after Snider, acting in his capacity as President of the South Pasadena Fire Fighters’ Association, demanded the city bargain over its plan to impose a light duty policy that had never previously been department policy. The city argued such a policy had been in place since 1999 and that in any case, light duty was not subject to bargaining.
The investigation concerned Snider’s use, five months earlier, of paid leave for a work-related back injury during which he participated in the eight-mile Spartan obstacle race. Then-deputy Fire Chief Paul Riddle and then-Capt. Chris Szenczi testified they considered Snider’s participation in the race a “serious matter,” but took no further action. Szenczi subsequently gave Snider an “excellent” overall job performance review.
“The City’s assertions that Snider committed serious transgressions rings hollow when it took no action to investigate those transgressions until months later,” according to Eric H. Cu, the PERB administrative law judge who reviewed the case. He said the city “did not demonstrate that Snider engaged in misconduct.”
Snider challenged his dismissal, saying the termination was retaliation for the bargaining demand and the complaint the union filed when the city refused to do so. Cu found the “timing of the city’s discipline, the city’s suspicious investigation practices, and the fact that the city treated Snider’s leave abuse claims differently from another similar employee collectively suggest that the city’s actions were motivated by Snider’s protected activity.”
The city challenged each of those findings in the Second District of the California Court of Appeals.
While the court sided with Cu’s finding on retaliation, it said “our conclusion does not imply that the city could not have subjected Snider to some form of discipline,” and so granted the city’s request to retain in Snider’s personnel file the 35-page report about his participation in the Spartan race — the thoroughness of which Cu had criticized because the investigator did not interview Snider’s doctor or anyone outside the department, including Snider’s doctor.
In a March 3, 2021 list of “existing litigation” to be discussed with the City Council in a closed session, the city did not include the Snider case, the ruling for which came down five days earlier. Interim City Administrator Joyce, saying he was responding “on behalf of [City Attorney] Terri Highsmith and myself” said that’s because “pursuant to the City’s MOU with the relevant bargaining unit and the Firefighter’s Bill of Rights, the terminated employee is entitled to an administrative appeal procedure, which is not considered ‘litigation.’”