Placement On Unpaid Leave Of Absence Requires Due Process

Antonio Giusto was a police officer with the City of San Mateo, California. In January 2003, Giusto filed a workers’ compensation claim on the basis of stress and depression following a non-disciplinary counseling session with his supervisor. As a result, the City placed Giusto on paid administrative leave pending a fitness-for-duty evaluation.
Giusto was examined by a psychiatrist, Norman Reynolds, who reported that Giusto was not fit for duty. Dr. Reynolds did not specify a reason for Giusto’s unfitness.

In May 2003, the City contacted Giusto’s attorney and asked that Giusto sign a waiver for release of medical information so the City could determine whether Dr. Reynolds found Giusto unfit due to a medical condition that would qualify him for a disability retirement or reasonable medical accommodation. While Giusto’s attorney and the City were negotiating over whether Giusto would provide the medical release, the City placed Giusto on unpaid leave of absence. The unpaid leave of absence continued for seven months, after which the City terminated Giusto.

Giusto filed a lawsuit against the City, alleging that his placement on the unpaid leave of absence violated his due process rights. The key question before the California Court of Appeals was whether Giusto had a property interest in his job that was impaired by the placement on unpaid leave of absence.

The Court concluded that Giusto did have such a property interest, and that the City violated his due process rights. The Court began with the proposition that a public sector employee who has attained the status of a permanent employee “has a property interest in the continuation of his or her employment which is protected by due process.” In the case of police officers, that property interest exists once the officer completes his or her probationary status.

The Court found that “an individual may be deprived of an interest in continuing employment by punitive measures short of termination. California courts have recognized that even a mere suspension of a public employee’s right to continued employment may amount to a taking for due process purposes.”

In the Court’s judgment, the placement on unpaid leave of absence triggered Giusto’s due process rights, and mandated that the City hold a hearing before the unpaid leave status began. The Court observed that “even if the City did not intend to punish Giusto by placing him on unpaid leave, the measure was imposed without his consent and deprived him of seven months of his salary and certain benefits, including accrued personal leave credits. As such, it was tantamount to a suspension without pay, a taking of property for due process purposes.”

Giusto v. City of San Mateo, 2006 WL 805072 (Cal.App. 2006).

NOTE: A footnote in the Court’s opinion indicates that Giusto’s termination was upheld by the City’s personnel board.

This article appears in the December 2006 issue