Reinstatement Ordered For Fire Association President

Written on 07/09/2021
Will Aitchison

Cliff Snider is a firefighter with the city of Pasadena, California. In 2009, and then again from 2011 forward, Snider was the president of the Pasadena Firefighters’ Association.

In October 2014, Snider injured his back while trying to lift a patient during an emergency call. Although Snider initially felt well enough to remain on duty, he soon suffered a severe back spasm that required him to visit the emergency room. He returned to work approximately one month later after he had been placed on Injured on Duty (IOD) status.

Snider aggravated his back injury in December 2015 while he was observing a demonstration by another firefighter. After a visit to his doctor, Snider was again placed on IOD status. As was the case when Snider previously suffered on-the-job injuries, no one from the City expressly instructed Snider to limit his physical activities or to notify the City if his condition improved before his next appointment with his doctor, which was scheduled for February 2, 2016.

On Saturday, January 30, 2016, Snider and his wife participated in the Spartan Race, which is an approximately eight-mile run over varied terrain with obstacles. Snider’s wife registered both of them for the event in October 2015, before Snider re-injured his back. Snider testified that he initially did not feel as though he could complete the race following his back injury, but eventually felt well enough to resume his regular activities at some point during his leave. After the race, Snider’s wife posted photographs of herself from the race on a social media site, none of which featured Snider. Snider himself did not post any photographs from the race.

A Department captain also participated in the race. When the captain’s wife showed him online pictures of Snider’s wife at the race, the captain thought that one of the photographs was oriented in an unusual way and suspected that Snider’s wife may have intentionally edited Snider’s face out of the picture. The captain shared with a deputy chief his suspicions that Snider had run in the race, but neither took any further action regarding Snider’s involvement in the Spartan Race at that time.

Snider returned to work in February. However, around late March or early April 2016, Snider tore the meniscus in his right knee, causing him to be placed on IOD status again. On April 27, Snider received messages from Department employees stating that the captain was telling others that Snider could be fired for participating in the Spartan Race. Snider called the captain and acknowledged running the Spartan Race.

The deputy chief then contacted Snider and directed him to report to the Department for a light-duty assignment. Snider agreed to report for duty but said he wanted to consult with legal counsel because there was no light-duty policy in the memorandum of understanding (California’s equivalent of a collective bargaining agreement) between the City and the Association. While Snider was preparing to return to work, the deputy called to tell him that he no longer needed to immediately report for duty.

Eventually, the Association demanded to bargain, contending the City had changed its light-duty policy without bargaining with the Association. Less than a month later, the City hired an outside investigator to review Snider’s conduct, and months later, the chief fired Snider for Snider’s participation in the Spartan Race. The Association responded by filing an unfair labor practice complaint with California’s Public Employment Relations Commission, alleging that Snider was retaliated against for his union activities. PERC ordered the reinstatement of Snider with back pay.

The California Court of Appeals upheld PERC’s order. The Court concluded that “substantial evidence on the record considered as a whole supports PERC’s finding that Snider established a prima facie case of retaliation, although we disagree with PERC’s finding that the investigator’s failure to interview certain witnesses suggests the City intended to retaliate against Snider for his protected activities. We also uphold PERC’s rejection of the City’s affirmative defense.

“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.

“Substantial evidence on the record considered as a whole supports PERC’s finding that the City’s failure to investigate Snider at an earlier point in time is suspicious. Recall that on February 2, 2016, the captain shared with the deputy his suspicion that Snider had done the race. PERC observed that even if the captain and deputy chief were uncertain about Snider’s participation in the race when they discussed the issue, they declined to take any steps to confirm or refute their suspicions until months later, notwithstanding the fact they both claimed to believe Snider’s participation in the race was a serious matter. Neither person even mentioned the race to the Chief until nearly three months later, around the same time the dispute over the light-duty issue arose, and, in the intervening time period, the captain even issued Snider a favorable performance evaluation that made no mention of the Spartan Race. We agree with PERC that this behavior could suggest that the City did not actually believe Snider committed serious transgressions, and that its failure to begin any formal investigation into Snider’s conduct until after Snider and the Association demanded to bargain over the effects of the City’s light duty policy was not a mere coincidence.”

City of South Pasadena v. Public Employment Relations Board, 2021 WL 753192 (Cal. Ct. App. 2021).

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