Two Down, One To Go In The Bad Attitude Battle

Posted by Alison Berry Wilkinson

If you have no medical or psychological problems, but simply a perceived bad attitude, can that cost you your job? Apparently so, if you work for the San Mateo Police Department.

It all began when Sergeant Antonio Giusto, a 15-year veteran with an unblemished record and excellent evaluations, was counseled about his decision not to terminate a vehicle pursuit involving one of his subordinates. Following what the lieutenant characterized as an “amicable discussion,” Giusto decided not to sign a counseling memo because he did not agree with the working since he felt it misrepresented the general orders concerning pursuits.

Later that evening, Giusto told the lieutenant he was not feeling well and was allowed to go home sick. Giusto called in sick the next day, and then went on his regularly scheduled days off. By the time he returned to work four days later, Giusto was feeling fine. But because a worker’s compensation claim had been filed, Police Chief Susan Manheimer required that Giusto be cleared through a fitness for duty evaluation before returning to work.

The city’s doctor, following an examination and extensive testing, issued a report finding that that Giusto “can return to work at this time” and that “he has no functional limitations or he has functional limitations but they are not of a sufficient degree to render him not fit-for-duty in some absolute or final way.” The doctor then recommended re-evaluation in two months.

During the intervening two-month period, the supervising lieutenant concluded that Giusto performed “in accordance of the expectations I have set for him”. Nonetheless, following a second evaluation the city’s doctor concluded that Giusto suddenly had developed functional limitations that rendered him not fit for duty.

Chief Manheimer then placed Giusto on an involuntary unpaid medical leave of absence for seven months pending termination. Because that act was tantamount to a suspension without pay and no pre-deprivation due process was provided, Rains, Lucia & Wilkinson partners Harry Stern and Alison Berry Wilkinson teamed up to get Giusto paid. When the city disregarded the many letters detailing the unlawfulness of the unpaid suspension, the first of two court battles began. The San Mateo Superior Court ordered the city to provide Giusto with seven months of back pay. The city appealed. In March 2006, the First District Court of Appeals agreed that Giusto’s due process rights had been violated, that the involuntary unpaid leave was unlawful, and affirmed the Superior Court’s award of back pay.

In the meantime, Manheimer proceeded with terminating Giusto. The city’s doctor issued further reports to clarify his unfitness finding, which revealed that all of the psychological tests administered to Giusto “were within normal range and did not suggest disqualifications from work,” and that there was “no medical/psychiatric causation for [the] finding that Sgt. Giusto is not fit for duty.” The city’s doctor explained that the unfit finding was based on his conclusion that there was simply an “unworkable match” between Giusto and the leadership of the department. The city’s doctor stated: “In common parlance, Sgt. Giusto has an attitude problem.”

Giusto appealed his termination to the city’s Personnel Board. During that hearing, Giusto sought to introduce the testimony of Doctors Paul Berg and James Missett. Both had reviewed (the city’s doctor) Dr. Reynolds’ reports and the psychological testing conducted, had further interviewed and evaluated Giusto, and had concluded not only that Giusto was fit for duty, but that Reynolds’ report was not correct, accurate, or reliable.

At the city’s urging, the personnel board refused to admit Giusto’s evidence because it had not been available to Manheimer at the time of her termination decision. The personnel board so ruled, despite the fact that the Manheimer had testified during the appeal hearing that Giusto had requested a second opinion prior to termination, but she refused to allow one.

Thus, a second court battle began over whether the personnel board had committed a manifest abuse of discretion by not allowing Giusto to rebut the conclusions of the city’s doctor. The San Mateo Superior Court found that the city violated due process and the Public Safety Officers Procedural Bill of Rights Act by not admitting Giusto’s evidence showing that he was fit for duty. In January 2006, a writ was issued ordering the city to set aside its termination decision and to hold a hearing in which Giusto’s evidence would be considered.

Two court battles down, one to go. A hearing will soon be held, at which there will be evidence that three doctors experienced in police psychology have found both that Sergeant Giusto is fit for duty, and that the unfit finding of the city’s doctor was wrong and unreliable. Stay tuned, and let’s all hope that, once again, reason prevails. Otherwise, all of us out there with perceived “bad attitudes” could be out of work.