City moves forward with appeal on Eaton lawsuit

Staff looks for immunity in wrongful termination suit
By: Jon Brines, Placer Herald Correspondent
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A week after former City Manager Carlos Urrutia and former Police Chief Mark Siemens lost their bid for immunity in former Police Sgt. Rick Eaton’s wrongful termination suit, the city has decided to appeal that decision. “There were clear errors that were made in the (three-judge) panel’s decision,” said Bruce Scheidt, the attorney representing the city. The May 4 ruling by the U.S. Ninth Circuit Court of Appeals determined Eaton’s charge that the city, Urrutia and Siemens could have violated his equal protection rights under the Constitution and would need to go trial to ultimately decide the matter. The purpose of the ruling was not to offer an opinion on the credibility of Eaton’s claims, but to determine if they had enough legal grounds to move forward, according to Scheidt. Scheidt said the judges should have looked at some evidence, however, before taking Siemens and Urrutia’s immunity off the table. If a judgment is handed down, both could be held personally liable for firing Eaton in 2004. Scheidt claims the case should have been thrown out of court years ago. “First, it is our strongly held belief that employment-based retaliation has no Constitutional support in the Equal Protection Clause,” Scheidt said. According to court documents, Eaton was disciplined for “unwanted and inappropriate sexually oriented comments. He was charged with, and admitted to requesting to see a female subordinate officer’s breasts while he was supervising her alone in a patrol vehicle.” After a suspension, Eaton then made “inappropriate comments about the disposition of (his) verbal harassment grievance (and made) malicious and threatening statements to his supervisor and made remarks during (police department) briefings,” the petition read in part This insubordination, Scheidt contends is the reason for Eaton’s ultimate termination by Urrutia and Siemens. Eaton complains his discipline was not handled the same as other employees Siemens and Urrutia called “team players.” That’s where the equal protection comes in, court documents said. Scheidt said there is no other case like this so the ruling is inappropriate.  “When asked at oral argument if he had legal support (i.e., a published case) for Mr. Eaton’s retaliation-based Equal Protection claim in public employment, Mr. Eaton’s lawyer responded that he did not,” Scheidt said. “The three-judge panel disregarded this statement.” That’s so important the city decided to appeal the ruling in a rare and discretionary en banc rehearing. Last year, reportedly only 58 cases were heard nationwide. The review would ask the entire Court of Appeals to second-guess the decision of the three-judge panel in this ruling.   On Monday, the Ninth Circuit gave an indication they may consider it, issuing an order requesting briefing by Eaton’s lawyers. “The Ninth Circuit has absolute discretion to summarily deny a petition for an en banc rehearing without further briefing and without a vote,” Scheidt said. Eaton is hopeful the ruling will stand. “Mr. Scheidt is entitled to his interpretation of the law, however, two courts, four Federal judges and the entire legal staff have refused to adopt it over the course of four previous appealed proceedings,”  Eaton said. “(My attorney) will respond to the petition. We will wait on a decision from the court and go from there.”   If the review is denied the jury trial could begin either this year or in early 2012.