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Informing them only after
they were hired, City officials considered its
311-Citizen Contact Center employees "at will" or "unclassified"
employees. The employees were told they could not join a
union. When they were fired, most of them were told, "your services are no
longer needed." Although the City refused to give any reasons or
right to respond to disciplinary actions, the 311-CCC Employee Handbook states
reasons for immediate termination and provides a series of progressive
disciplinary actions for lesser offenses.
If Plaintiffs had "a reasonable
expectation of continued employment" absent just cause for disciplinary
actions against them, that "reasonable expectation" translates into a
"property interest" in their employment such that both pre- and
post-termination hearings and an opportunity to present the employee's
side of the story were constitutionally required.
Class action certification
was denied and four 311 supervisors have moved to intervene. The
City's Motion for Summary Judgment was argued on January 10 and on
February 23, 2011, the Court issued its Memorandum Opinion and Order
granting summary judgment to the City and finding that Plaintiffs were
"at will" employees.
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CITY'S MOTION FOR SUMMARY
JUDGMENT
City's Motion for
Summary Judgment (filed 7/27/2010)
City's
Amended Memorandum in Support of Motion for Summary Judgment
Exhibit 1 (Gonzales Depo)
Exhibit 1a (Gonzales Job Description)
Exhibit 2
(Tenenbaum Depo)
Exhibit 3
(Merit Sys. Ordinance Excerpt)
Exhibit 4 (Interrogatory Excerpts)
Exhibit 5
(Waites Depo)
Exhibit 6
(Mora Depo)
Exhibit
6a (Mora Employee Info)
Exhibit 7
(Austin Depo)
Exhibit
7a (Austin
Employee Info)
Exhibit 8
(Clover Depo)
Exhibit
8a (Clover Employee Info)
Exhibit 9
(Bordlemay Depo)
Exhibit 9a (Bordlemay Employee Info)
Exhibit 10
(Foster Depo)
Exhibit 10a (Foster Employee Info)
Exhibit 11
(Y. Garcia Depo)
Exhibit 11a (Y. Garcia Employee Info)
Exhibit 12
(Pescetti Depo)
Exhibit 12a (Pescetti Info)
Plaintiffs' Response
Brief (filed Sept. 21, 2010)
Exhibit
1 Gonzales Affidavit
Exhibit 2
Austin Affidavit
Exhibit 3
Mora Affidavit
Exhibit 4
Clover Affidavit
Exhibit 5
Pescetti Affidavit
Exhibit 6
Garcia Affidavit
Exhibit 7
Foster Affidavit
Exhibit 8
Bordlemay Affidavit
Notice of Joinder of 2 Additional Plaintiffs (filed Sept. 20, 2010)
Supervisors' Motion
to Intervene (filed Sept. 22,
2010)
Complaint in Intervention
Supervisors' Memo
in Support of Motion to Intervene (filed Sept. 21, 2010)
City's
Response Brief (filed
Oct. 5, 2010)
Deposition
of Esther Tenenbaum
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Friday, September 03, 2010
Former 311 Call
Center Workers Suing City Hall
Journal Staff Writer
City Hall is facing a
lawsuit over whether it can dismiss its "311" operators at
will or whether they should get the same job protections
afforded other government workers. Nine former employees of the 311 Citizen Contact Center
are suing the city in a federal complaint pending before
U.S. District Judge James Browning. Another 18 fired
employees may be interested in joining the suit, according
to court documents.
The plaintiffs allege wrongful termination and violation
of labor laws. They also say they were denied due process,
or the right to hearings on their employment status.
Paul Livingston, who represents the former employees,
said the city can't unilaterally designate a group of
employees as "at will," which means they can be fired for
any or no reason.
"There has to be a justification and formal process," he
said Thursday in an interview. "This is a serious thing
that's being done, when you take a group of employees
outside the civil service system" and normal job
protections.
The city vigorously contests the suit. An ordinance
outlining the city's "merit system" for employees
specifically gives the chief administrative officer
authority to designate who serves in an "unclassified," or
at will, position, according to the city.
Operators in the 311 center were hired into unclassified
jobs, because the city wanted to emulate a private call
center. That meant having the flexibility to pay workers
more, offer bonuses and discipline them quickly if needed,
city attorneys say.
City Attorney Rob Perry said federal, state and
municipal governments all have authority to set their own
personnel rules and use classified or unclassified
designations. The employees knew they were at will and had
extra promotional opportunities because of it, he said.
"There are certain positions in government that require
that the entity have the flexibility to work with more
efficiency ... to benefit the taxpayers in their program
management," Perry said.
The 311 center takes nonemergency calls from the public.
Its operators must be familiar with all city services and
know where to route calls, a breadth of knowledge not
required of other city employees who handle calls, the city
said in documents.
Livingston sought to have the complaint certified as a
class action covering current and former employees, but
Browning ruled against it. Instead, the judge said, more
plaintiffs can join the suit individually.
The lead plaintiff is Antoinette Gonzales. |