City of Anaheim v. Nolan 12/26/02 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G028272

Case Date: 12/26/2002

Preview:Filed 12/26/02

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE CITY OF ANAHEIM, Defendant and Appellant, v. STEVEN W. NOLAN, Plaintiff and Respondent. G028272 (Super. Ct. No. 00CC03056) OPINION

Appeal from a judgment of the Superior Court of Orange County, William F. McDonald, Judge. Reversed and remanded. Grancell, Lebovitz, Stander, Marx and Barnes, Norin T. Grancell and Lawrence Kirk for Defendant and Appellant. Lemarie, Faunce, Pingel & Singer and Steven R. Pingel for Plaintiff and Respondent.

I. INTRODUCTION Peace officers and firefighters sometimes put in for a disability retirement based on "mental incapacity" where the alleged incapacity derives fundamentally from the fact that they aren't getting along with their colleagues. The "incapacity" is manifested in some fear about the way fellow officers will

behave toward them in the future. (E.g., Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292, 1296 [firefighter with history of disciplinary problems claimed entitlement to disability retirement because of fear that he would be treated unfairly if he returned to work].) The present case involves such an officer. However, in determining whether the officer was mentally incapacitated, the trial judge applied the wrong standard. The trial judge assumed that it was enough that the officer feared retaliation from his former colleagues in the Anaheim Police Department. That is not the standard. Fear arising out of a fear of retaliation by individuals in one department does not translate into an incapacity that keeps an officer from working elsewhere. The relevant statute, Government Code section 21156, uses the phrase "state service," not "city" or "department" service. It is thus directed at the inability to perform one's usual duties, i.e., one's usual services, not to work smoothly in a given location with specific people. We reject as a matter of law the demeaning but unspoken stereotypical assumption on which these "fear of retaliation" cases are based, i.e., that because of a "code of silence," most peace officers and firefighters throughout the state are really bad guys who would not come to the aid of a colleague who was on the "outs" with the rest of a specific department. II. BACKGROUND A. Events Leading Up to the Superior Court Hearing Steven W. Nolan began his employment as a police officer with the City of Anaheim in 1984. He was number one in his sheriff's academy class. Professionally things went well for him in the late 1980's. His work reviews were "stellar." Then in 1991 he moved to the gang unit. There he encountered trouble with his colleagues when he reported what he believed to be excessive use 2

of force on detainees by fellow officers.1 He began to experience "strained relations" with other members of his unit. He voluntarily left the gang unit, returning to patrol duty in July 1992. An internal affairs investigation turned up no misconduct on the part of the other officers. Disciplinary charges were then brought against Nolan in December 1992 for violating a variety of department rules, including unbecoming conduct, unsatisfactory performance, misuse of sick time, improper handling of evidence and unauthorized erasure of some 53 tape recordings of statements made by witnesses, victims and suspects. The most serious of these charges was the erasure of the tapes, and Nolan was fired for it in March 1993. He took the case to arbitration, in a case financed by his fellow officers through the Anaheim Police Association. The arbitrator decided that Nolan did not merit firing, but still imposed a five-day suspension on him. Nolan never returned to work. Instead, in September 1994, at the age of 32, he filed for a permanent disability retirement, having received two threatening telephone calls and numerous telephone call hang-ups after the arbitrator's decision came down. Nolan believed the calls were placed by Anaheim police officers. In one of the two non-hang-ups he was told to always wear his vest -- an allusion to being shot at. The other was: "Welcome back, you're f-ing dead." Nolan saw several mental health professionals. He also filed a civil "whistleblower" suit seeking damages for wrongful termination. The jury in the whistleblower suit agreed with Nolan and awarded him $223,000, but also concluded that he could have worked at comparable employment, and so reduced

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As Nolan described these incidents, there clearly was "excessive force." However, we use the tentative locution "what he believed to be excessive use" because a subsequent investigation did not corroborate the charges.

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the award by $63,000. The jury also gave him $180,000 in compensation for emotional stress. Nolan used a portion of the award to open a restaurant. In April 1999, an administrative hearing on Nolan's disability retirement was held. By October the administrative law judge recommended denial of the request, concluding that "Nolan's problems fall more within the administrative than the psychiatric area." The administrative law judge found that Nolan suffered no "mental illness." Rather, Nolan's "unhappiness and feelings of frustration represent the normal emotional responses to anyone placed in an unpleasant situation." Anaheim adopted the administrative law judge's proposed decision in December 1999. Nolan filed this case in March 2000, seeking a writ of mandamus compelling the city to grant him the disability retirement. B. The Evidence Before the Superior Court As was the case at the administrative hearing, the evidence before the trial court on the writ proceeding consisted of reports from several mental health professionals. Those reports consisted of: (1) several reports from a psychologist referred to Nolan by his attorney, covering the period November 1994 through October 1995; (2) two reports from a psychiatrist hired by the city from January and March 1995; and (3) a report from psychiatrist hired by the city's insurer dated June 1995. 1. Nolan's Own Psychologist's Reports The main theme in the reports of Nolan's own psychologist was an almost existential disillusionment with police work. In the March 1995 report the psychologist wrote: "When asked if he could work as a police officer again, the patient said, `Maybe in a perfect world. I'm too disrespectful of police departments at this time after I've see what really goes on, and I know I wouldn't get hired if they knew my background. I have no tolerance for the political shit and unjustices all the time. It's hard to keep my mouth shut.'" From such remarks 4

the psychologist concluded: "Based on my examinations and treatment of Mr. Nolan, it is my opinion he remains demonstrably distressed pursuant to his tenure with the City of Anaheim. The patient continues to struggle with an overwhelming sense of helpless[ness] in the face of shattered assumptions about the world as meaningful, comprehensible and orderly, and that he may be the victim of overpowering forces beyond his control." The psychologist diagnosed him as suffering from "Major Depression, single episode." However, the psychologist did not recommend either medication or even regular psychoanalysis. Nolan would only "require as-needed psychotherapeutic treatment for symptom relief if subject to occupational demands outside of the limitations mentioned above."2 According to his own psychologist's report, Nolan was quite functional in daily living. He lived just outside of Orange County with his thenfianc

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