May 20, The Board authorize settlement of the above-entitled action in the amount of $450,

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1 May 20, 2002 Honorable Board of Supervisors 383 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, California 900l2 Re: Rebecca Lizarraga v. County of Los Angeles United States District Court Case No. CV Los Angeles Superior Court Case No. BC Dear Supervisors: The Claims Board recommends that: 1. The Board authorize settlement of the above-entitled action in the amount of $450, The Auditor-Controller be directed to draw a warrant to implement this settlement from the Department of Children and Family Services. Enclosed is the settlement request and a summary of the facts of the case. Also enclosed, for your information, is the Corrective Action Report submitted by the Department of Children and Family Services. Return the executed, adopted copy to Frances Lunetta, Suite 648 Kenneth Hahn Hall of Administration, Extension Very truly yours, BNU/fsl Barbara N. Uyeda, Chairperson Los Angeles County Claims Board Enclosures..

2 M E M O R A N D U M May 2, 2002 TO: FROM: THE LOS ANGELES COUNTY CLAIMS BOARD MILDRED K. O LINN Manning, Marder, Kass, Ellrod, and Ramirez RE: DATE OF INCIDENT: ROGER H. GRANBO Principal Deputy County Counsel Rebecca Lizarraga v. County of Los Angeles United States District Court Case No. CV Los Angeles Superior Court Case No. BC April 15, 1999 to present AUTHORITY REQUESTED: $450,000 COUNTY DEPARTMENT: DEPARTMENT OF CHILDREN AND FAMILY SERVICES CLAIMS BOARD ACTION: Approve Disapprove Recommend to Board of Supervisors for Approval Chief Administrative Officer BARBARA N. UYEDA County Counsel LLOYD W. PELLMAN Auditor-Controller on MARIA M. OMS,

3 SUMMARY This is a recommendation to settle for $450,000, two lawsuits filed by Rebecca Lizarraga who claims that her First Amendment right to free speech was violated and that she was demoted and constructively discharged from her job with the Department of Children and Family Services (DCFS) in retaliation for an investigation of a foster home she conducted that appeared to implicate the former director of DCFS in misconduct. LEGAL PRINCIPLES It is a violation of federal and State law to retaliate against an employee for exercising his or her right to free speech. A prevailing plaintiff in a federal civil rights lawsuit is entitled to an award of attorneys fees. A public entity is responsible for the intentional and negligent acts of its employees when the acts are done in the course and scope of employment. SUMMARY OF FACTS Rebecca Lizarraga began working for the Department of Children and Family Services as a social worker in In November 1997, she was assigned to be the Acting Section Head of the Out of Home Care Evaluation Unit (OHCEU) which is the division of DCFS that investigates the suitability of a foster home after allegations of abuse have surfaced in the home. In October 1998, during an investigation of a foster home, Rebecca Lizarraga s unit discovered information that seemed to implicate the former director of DCFS in misconduct. Rebecca Lizarraga reported her findings to her superiors. A subsequent investigation by the Sheriff s Department failed to uncover any misconduct by the former director. In June 1998, in an unrelated event, an anonymous letter was sent to the Board of Supervisors indicating that several DCFS employees, including Rebecca Lizarraga, were holding positions for which they were not qualified. An investigation was conducted and it was substantiated that several employees did not have the minimum qualifications for the positions they were holding, including Rebecca Lizarraga. Under Civil Service requirements, employees in acting positions are supposed to have the minimum qualifications for that position, but DCFS failed to certify that Rebecca Lizarraga had the required qualifications before assigning her to the position. 3

4 In April 1999, Rebecca Lizarraga was informed that she was being removed from her Acting position. She filed a grievance and during the grievance process, DCFS offered her a new position as a Civil Service Representative, which she accepted. She reported to work for one day but has not returned. Paperwork confirming the resolution of her grievance has not been located and was probably not completed. DAMAGES Should this matter proceed to trial we estimate that the potential damages could be as follows: Lost wages $150,000 Emotional Distress $250,000 Attorneys Fees $350,000 Total $750,000 The settlement calls for the County to pay Rebecca Lizarraga $450,000 for all claims for damages, costs, and attorneys fees. STATUS OF CASE Rebecca Lizarraga initially filed her lawsuit in Federal Court. We were successful in having the case dismissed by the trial court and it is currently on appeal. We believe a favorable ruling for the County by the Ninth Circuit Court of Appeals is unlikely. In addition, Rebecca Lizarraga filed a second lawsuit in State Court alleging similar causes of action under State law. That lawsuit is currently pending. Expenses incurred by the County in defense of this matter are attorneys fees of $169,329 and $12,381 in costs. EVALUATION This is a case of contested liability. While Rebecca Lizarraga did not possess the minimum qualifications for the acting position she held, DCFS did assign her to that position. The evidence will show that she was an excellent employee and performing very well in the position. The timing of her being removed from her position unfortunately coincides with her investigation implicating the former director of DCFS. A jury could conclude that her removal from the position was in retaliation for disclosing the allegations against the former director. 4

5 A settlement at this time will avoid substantial litigation costs, which have already been extensive. Further, the settlement will foreclose the possibility of a jury verdict that would likely exceed the proposed settlement. We join with our private counsel, Manning & Marder, Kass, Ellrod & Ramirez and our third party administrator, Carl Warren and Associates, in recommending a settlement of this matter in the amount of $450,000. The Department of Children and Family Services concurs in this recommendation. APPROVED: KEVIN C. BRAZILE Assistant County Counsel RHG:scd 5

6 CHRONOLOGY AND QUALITY IMPROVEMENT PROGRAM ANALYSIS Information obtained from the defense counsel summary, and others. Plaintiff: Rebecca Lizarraga Chronology of events: November, 1997 Rebecca Lizarraga, Children s Social Worker (CSW) II was promoted to the position of Acting Section Head in the Out-of-Home Care Evaluation Unit (OHCEU), a section in the Quality Assurance Division of the Department of Children and Family Services (DCFS). This position was classified at the level of Children s Services Administrator (CSA) II. December 17, 1997 Ms. Lizarraga requested an Out-of-Class bonus for the position of CSA II. February 3, 1998 The request for Ms. Lizarraga to receive an Out-of-Class bonus was approved. October 8, 1998 An Accusation dated October 8, 1998 was filed by the State of California, Department of Social Services, Community Care Licensing Division seeking revocation of the license of a certain foster mother based upon substantiated and unresolved violations of CCL Title XXII Regulations which include child abuse and neglect. November 6, 1998 As a result of the above Accusation, an investigator from the Out-of-Home Care Evaluation Unit (OHCEU), was assigned to review the multiple allegations made against the foster mother since 1993 and to conduct a routine site inspection of the home. During the home visit the foster children in the home alleged that that the foster mother had physically abused them. The children also alleged that the foster mother and the former Director of DCFS were having a relationship. A 6

7 subsequent investigation by law enforcement found insufficient credible evidence to substantiate that allegation. After obtaining the above-stated information and finding various site deficiencies during the home visit, a Do Not Use request was prepared. The information regarding the relationship between the foster mother and the former Director of DCFS was included in the investigative file. December 3, 1998 The Do Not Use request against the foster home of was approved. June June 1999 During this period a separate and distinct event was occurring within the Department of Human Resources (DHR) and the Department of Children and Family Services (DCFS) that relates to the promotion and removal of Ms. Lizarraga as Acting Section Head of the Out-Of-Home Care Evaluation Unit (OHCEU). On or about June 1998, the Los Angeles County Board of Supervisors received an anonymous letter stating that numerous employees of DCFS, including Ms. Lizarraga, were holding titles for positions they did not qualify for and were also receiving inappropriate Out-of-Class bonuses. This letter was reviewed by the Personnel Officer with the DCFS, Bureau of Administrative and Management Services. It was determined that Ms. Lizarraga and two additional employees were in inappropriate assignments, as they did not meet the minimum requirements for the position. This information was reported to DHR and a decision was made to remove the employees from their acting positions. Ms. Lizarraga was informed in a letter dated April 15, 1999, that she was being removed from her position effective April 16, April 16, 1999 On April 16, 1999, Ms. Lizarraga filed a grievance with the union. May 4, 1999 Ms. Lizarraga s grievance was denied on May 4, May 7, 1999 Ms. Lizarraga filed a government claim for damages. 7

8 8

9 June 14, 1999 Ms. Lizarraga s claim was rejected due to untimeliness. June 22, 1999 The Personnel Officer wrote a memo to her supervisor informing him that there were a total of 146 employees who did not meet the minimum requirements at the time that they were appointed to their acting assignments in DCFS. However, each employee listed met the minimum requirements for their assignment. This list did not include Ms. Lizarraga or the other two employees who were removed from their assignment. A later audit found that approximately 30 to 40 employees were working out of class. DCFS was advised by DHR that the employees should not be removed from their positions, as it would create an undue hardship on the Department. July 19, 1999 After the grievance was filed Ms. Lizarraga was eventually offered the position as a Civil Service Representative within DCFS. At that time the Department felt that this new position settled her grievance, however, no written confirmation of this offer has been located. Ms. Lizarraga accepted the position, reported for one day and has been on leave since. December 9, 1999 Ms. Lizarraga filed a Summons and Complaint in the United States District Court, Central District in California. May 10, 2001 The court entered a summary judgment in favor of the defendants, dismissed all the federal causes of action and remanded this matter back to the state court. After the court entered the summary judgment in favor of the defendants, Ms. Lizarraga filed a Notice of Appeal in the Ninth Circuit. June 29, 2001 Ms. Lizarraga filed a complaint in the state court. 9

10 December 13, 2001 On this date during mediation, a settlement was reached in the amount of $450, CORRECTIVE ACTION SUMMARY: Risk Management Issues 3. Employees offered and granted Out-of-Class positions with a pay bonus absent determination of meeting the minimum requirements for the position. 1. Human Resources selection criteria for Out-of-Class positions appeared inconsistent. 2. A settlement was reached, but not confirmed in writing. Risk Management DCFS Corrective Actions 3. The DCFS Personnel Manual is in the process of being revised. 1. In June 2001 Personnel issued a protocol on LA-Kids regarding vacancy notices and recruiting procedures. 3. DCFS Human Resources Division is undergoing major reorganization. The Department of Human Resources (DHR) has taken an oversight position for the next year. 4. All settlements shall be confirmed in writing. Risk Management Personnel Corrective Actions Personnel Involved in Event Status (time of event) Chie f of Qual ity Ass uran ce Divis ion Current Status Same Corrective Action Taken Retraining in appropriate candidate selection positions within her purview. Investigative Summary 10

11 Date Investigation Results Based on the above-stated information, the policies and practices for filling a vacant position within DCFS were unclear and inconsistent during this time period. This lack of clarity and inconsistency clouded the issue of whether Ms. Lizarraga s allegations were founded. Ms. Lizarraga accepted the position of Acting Section Head in OHCEU in good faith and was approved for an Out-of-Class bonus, as were other employees. If Ms. Lizarraga did not qualify for the position when it became available, this issue should have been clarified with her before the position was offered. Lizarragaltgnrpt

12 DCFS administration has reviewed the risk management issues in this lawsuit and has taken all appropriate corrective actions required. Completed by: Darlene Salazar, CSA II Office of Litigation Management Date: Reviewed by: Michelle Victor, Administrator Office of Litigation Management Date: Reviewed by: Paul Freedlund, Bureau Chief Bureau of Finance and Administration Date: Approved by: Date: Anita Bock, Director Department of Children and Family Services 12

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