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Demoted Yuba Lieutenant Wins Reinstatement

Posted on Tuesday, September 01, 1998 at 12:00PM

On July 11, 1998, the Yuba County Board of Supervisors approved an arbitrator’s recommendation that Sergeant Robert Escovedo be reinstated to the rank of lieutenant. Escovedo had been demoted by Sheriff Gary Tindel shortly following his marriage to a co-worker, Sergeant Barbara Byers. Escovedo was represented by Paul Q. Goyette of Goyette & Adams.

Escovedo has been employed by the Yuba County Sheriff’s Department since 1973 and served as a lieutenant since 1988. Around February 1997, the department started an Internal Affairs investigation as to whether Escovedo was committing misconduct by dating a co-worker.

In June 1997, the department completed its Internal Affairs investigation and found that Escovedo had been exonerated on any allegations of misconduct. On June 21, 1997, Escovedo and Byers were married.

On July 7, 1997, the department served Escovedo with a document it called a “Notice of Proposed Reduction in Rank,” where the department informed Escovedo that he would be demoted from lieutenant to sergeant. The department relied upon a section of the Yuba County Code that authorized them to transfer or reassign a spouse who works with another spouse under certain conditions.

These would include the department determining that the married couple working together interferes with the department’s ability to react to safety emergencies, interferes with confidentiality, lessens employee morale, or creates other adverse working conditions. While demoting Escovedo, the department “Y-Rated” him so that he did not suffer an immediate loss in pay. By doing so, the department argued that its action against Escovedo was not in fact a demotion but was really a “reassignment” to a lower rank.

At the time of his demotion, Escovedo served as a jail lieutenant and supervised several sergeants, including his wife. Ironically, following his demotion, the department did not reassign either Escovedo or Byers.

Rather, Escovedo served as an additional sergeant who worked side-by-side with the other sergeants he had previously supervised, including his wife. In addition, the department took no action to reassign Byers.

Department initially denied Escovedo’s appeal: Attorney Goyette filed a timely appeal on behalf of Escovedo which the county initially denied. The county contended that since Escovedo did not suffer any loss in wages, he had not been subjected to punitive or disciplinary action and, therefore, he was not entitled to any form of administrative appeal.

Goyette countered that while Escovedo did not receive an initial pay cut because of his “Y-Rated” status, he would not receive wage increases that other employees were to receive under the collective bargaining agreement. In addition, Escovedo had been a lieutenant for approximately 10 years and had suffered significant damage to his professional reputation in the law enforcement community.

As a lieutenant, Escovedo worked significant amounts of overtime. As a sergeant, Escovedo worked virtually no overtime.

After his demotion, Escovedo was required to work graveyard or swing shift and had various weekdays off. As a lieutenant, Escovedo worked day shifts and had weekends off. Finally, he argued that the department violated Escovedo’s constitutional rights of privacy and freedom of association and it discriminated against him based on his marital status.

A Petition for Writ of Mandate under CCP §1085 was prepared to compel the county to give Escovedo an administrative appeal. Government Code §33.04 (b) states that “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for an administrative appeal.”

Despite all of the intangible and tangible harm Escovedo suffered, the department continued to contend that the demotion was not disciplinary action.

Prior to a court hearing, the county relented and agreed to proceed with an administrative appeal. “At this point we were certainly glad to get our administrative hearing. However, the county and the department caused a long delay by simply not following the rules and giving Mr. Escovedo the administrative hearing he was entitled to,” commented Goyette.

The administrative hearing: On June 11, 1998, an administrative hearing was conducted before administrative law judge Muriel Evens. At hearing, the county continued to argue that the department’s demotion of Escovedo was non-disciplinary in nature and was strictly an administrative move to keep two spouses from working in the same chain of command.

In addition, the county continued to argue that Escovedo was not entitled to any administrative hearing because his demotion was not “punitive” in nature. Finally, the county argued that the department did not demote Escovedo, but rather transferred or reassigned him under the County Code for allowable administrative reasons.

The county did stipulate that Escovedo was an excellent employee who had not committed any act of misconduct that would have warranted disciplinary action.

Escovedo responded that he had in fact been demoted and the demotion was punitive action. Escovedo was entitled to an administrative hearing and had been significantly hurt by the demotion.

Goyette argued that County Code did not authorize the demotion of an employee in circumstances where the employee was working with his or her spouse. He cited Birdsall v. Carrillo (1991) 231 Cal.App.3d 1426 (Legal Defense Fund case), which requires the county to strictly follow its own rules and procedures and does not allow the county to take action that is not authorized by its own rules.

He also argued Escovedo’s demotion was malicious in nature, discriminated against Escovedo based on his marital status, and violated Escovedo’s civil rights.

At hearing, Judge Evens ruled from the bench that Escovedo had in fact been demoted and that he had not been “transferred” or “reassigned” as argued by the county. The judge ruled that the fact Escovedo was “Y-Rated” and did not suffer any immediate pay cut, did not change the conclusion that he had been demoted.

Since the county did not dispute the fact that Escovedo had committed no act of misconduct that would have subjected him to traditional disciplinary action, the judge ordered Escovedo be reinstated to the rank of lieutenant. The judge did not rule as to whether the county had violated Escovedo’s civil rights.

Escovedo was extremely happy with the outcome of the case. “I have worked for the Yuba County Sheriff’s Department almost 25 years, and I have always dedicated myself to working hard for the department. I was the highest ranking lieutenant in the department and was shocked when the department demoted me for nothing more than the simple fact I married another county employee.

“I have been deeply hurt by the department’s actions. For now I am just excited to get back to work as a lieutenant”, Escovedo stated.

Escovedo currently has a civil rights lawsuit pending in the United States District Court.

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