Firefighters Lose Due Process, Bill Of Rights Claims

Patrick Leonard and Steven Barrett are Los Angeles firefighters. After they failed a psychological exam and were transferred out of the Arson Counter Terrorism Section, they sued the City claiming violations of due process and the California Peace Officer and Firefighter Procedural Bill of Rights Acts.

The federal Ninth Circuit Court of Appeals rejected the firefighters’ claims. With respect to the argument that their transfer violated their due process rights, the Court ruled that the firefighters “do not have a protected property interest in their assignment to Arson. We have held that individuals do not have a property interest in a promotion where the promotion is contingent on meeting certain requirements. Here, Plaintiffs did not meet one of the statutory requirements for an assignment as an investigator with peace officer powers – passing a psychological exam – so they had no vested rights in their Arson assignment.

“The firefighters concede that passing this exam was advertised as a requirement for the assignment, that they were told by superiors they would have to pass the exam to stay in Arson, and that the exam was also a statutory requirement. Thus, the trial court properly granted summary judgment in favor of the City on the due process claim.”

The firefighters’ Bill of Rights claim fared no better. The Court noted that under the POBRA/FFBOR, the “trigger” for an employee’s rights is the imposition of “punitive action” by the employer. The Court found that “an officer/firefighter is not subject to punitive action by being denied a promotion based on merit during a probationary period, even if the denial leads to a decrease in pay. The firefighters neither completed their probationary period nor met all of the requirements for an Arson assignment. Thus, they were not subject to punitive action when they were transferred out of Arson to other positions within the fire department.”

Leonard v. City of Los Angeles, 2016 WL 6212008 (9th Cir. 2016).