Firefighter Bill Of Rights Does Not Necessarily Require Neutral Hearing Officer

Brandon Leroy was hired as a firefighter by the City of San Jose, California in 2006. In May 2010, a City fire engineer named Brandon Ragan sent a “Harassment Claim” memorandum to the City’s Office of Employee Relations regarding Leroy. Ragan slept in a communal dorm at the fire station. The bed he used was next to a wall that his room shared with a private dorm room used by Leroy. Ragan claimed that after 11:00 p.m. on April 14, 2010, he heard Leroy’s television through the shared wall as well as muffled voices, including a female voice talking and giggling. When confronted the next morning by Ragan, Leroy reportedly initially denied having a visitor but eventually acknowledged that a woman had been in his room the night before.

Ragan informed Leroy that his conduct made Ragan uncomfortable and that if it happened again he would alert a superior officer. Despite this warning, only weeks later Ragan again heard the sounds of a woman’s voice, kissing, and a bed creaking in Leroy’s dorm room. Shortly afterwards, Ragan saw the same woman leave the station. When the same thing happened again on Ragan and Leroy’s next shift, Ragan filed his written complaint.

The City terminated Leroy on the grounds that he had an unauthorized visitor in his quarters at the fire station and “engaged in sexual and/or intimate contact” with that visitor. The City also found Leroy’s conduct constituted sexual harassment of Ragan, and violated the City’s discrimination and harassment policy, which prohibits “verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

Leroy appealed to the City’s Civil Service Commission. When the Commission upheld Leroy’s termination, he challenged the decision in the California Court of Appeals.

Leroy’s primary argument was that the hearing before the Commission did not comply with the requirements of California’s statutory Firefighter Procedural Bill of Rights Act. In particular, Leroy contended that the City failed to provide a neutral administrative law judge and that the Commission was inherently biased because “having employees of the City serve as the panel to determine the outcome of a termination recommendation by the City renders the Commission’s findings unfair.”

The Court disagreed, and upheld Leroy’s termination. The Court found that “even assuming the City erred by not providing Leroy an administrative law judge, Leroy has not demonstrated prejudice. Leroy was represented by counsel during the Commission hearings. Apart from their employment status as City employees, Leroy provides no evidence to support his claim that the Commission members were biased and we find no support in the record. On this record, we see no reasonable probability of a more favorable result had Leroy’s administrative appeal been decided by an administrative law judge instead of the Commission.”

Leroy v. City of San Jose, 2016 WL 879235 (Cal. App. 2016).