By: Renne Public Law Group Founding Partner Art Hartinger and Senior Counsel Spencer Wilson and Renne Public Management Group Consultant Debra Gill
Navigating employee discipline is especially challenging when misconduct occurs alongside separate protected activity. Employers’ responses to even the most serious workplace violations can be complicated by intersections with employees’ religious practices or other protected activities. The recent Ninth Circuit opinion in Hittle v. City of Stockton and the Santa Clara County Superior Court’s dismissal with prejudice of Doyle v. City of Santa Clara are two examples of how allegations of protected activity can complicate employee discipline based on even the most obvious and egregious misconduct.
Protected Status
Title VII and California’s Fair Employment and Housing Act (FEHA) prohibit employers from discriminating based on race, ancestry, religion, age, disability, sex, gender and other traits defined in the statutes. These laws also permit employees to bring claims of retaliation against employers who take adverse action against an employee for engaging in protected activities, such as reporting prohibited discrimination or harassment or requesting a reasonable accommodation due to disability or religion. Other laws likewise protect employees from retaliation based on additional protected activities. For example, Labor Code Section 1102.5 protects employees who report in good faith a violation of federal, state or local law. And both the Firefighters’ Bill of Rights Act and the Peace Officers’ Bill of Rights Act prohibit retaliation against an employee for exercising their due process rights under either act. Employers must ensure that any disciplinary action against an employee is not based on protected activity under any of these or other related statutes.
Critical Rule: Do not commingle personnel actions with mentions of protected statuses.
When addressing employee performance or misconduct, employers must keep personnel actions completely separate from any mention of protected status or protected activity. Even a passing reference to an employee’s medical condition, religious practice, whistleblowing or other protected characteristic can create the appearance that these factors influenced the decision, inviting claims of discrimination or retaliation. To protect both the integrity of the process and the agency’s legal position, all disciplinary discussions and documentation must focus exclusively on objective conduct, policy violations and measurable performance issues — nothing more.
This does not mean that an employee’s protected activity may be swept under the rug; the fact that an employee may have engaged in misconduct does not absolve an employer from affording the same employee rights afforded under Title VII, FEHA or other relevant statutes. For example, it is possible for an employee who violates workplace rules to also bring a good faith claim of harassment. While the employer needs to address the workplace violence conduct, it separately needs to investigate and address the employee’s harassment claims.
Drawing this line between discipline based on misconduct and addressing employee complaints or other protected activity can be challenging, as illustrated by the example cases below.
Case Examples
Recent case law can inform employers’ best practices for managing problem employees with protected status.
The long-litigated Hittle v. City of Stockton case underscores how purported protected activity can undermine legitimate disciplinary actions, even where there is abundant undisputed evidence of misconduct.
Ron Hittle was formerly the City of Stockton’s fire chief. Leading up to the city’s historic bankruptcy, newspaper articles and an independent investigation revealed significant misconduct, including failure to disclose business relationships with subordinate firefighters and a city contractor; reluctance to impose discipline on his friends and business partners in the department who engaged in serious misconduct, such as timecard fraud; failure to adequately discipline union members who cleaned and gardened the union hall grounds on city time; and using a city vehicle and city time to attend a religious leadership training seminar “for the benefit of the local church” with three of his subordinates.
The City terminated Hittle’s employment based on these and other incidents of misconduct, each of which violated city or department rules. Hittle’s attendance at the religious leadership seminar violated a city rule prohibiting use of city resources to attend educational and training events that are for the “benefit of the city,” and Hittle even admitted that he did not comply with city policy when attending the event and that attending the conference was not part of his religious practice. Despite these admissions and the voluminous record of misconduct, Hittle argued that because his attendance at the religious leadership event was connected to religion, the City’s reliance on that conduct as a basis for discipline was discriminatory.
The City ultimately prevailed in defending the lawsuit, but the litigation lasted more than a decade and went all the way up to the U.S. Supreme Court.
For employers, the takeaways are straightforward:
- Avoid commingling disciplinary rationales with mentions of protected traits or protected conduct or any comments that could be misconstrued as such. (For example, Hittle argued that his disciplinary notice’s reference to his attendance at a religious conference was evidence of discrimination)
- Ensure documentation is specific and behavior-focused
- Maintain consistent practices that make mixed-motive allegations less likely to gain traction
Doyle v. City of Santa Clara highlights how employment actions appearing to overlap with protected activity or politically sensitive conflicts can escalate litigation risk. Brian Doyle was the city attorney for the City of Santa Clara. One of his key duties was to provide the city council with advice related to public meetings and litigation against the City. Under the Meyers-Milias Brown Act, city councils may convene in closed sessions to engage in privileged attorney-client communications with their counsel. In order for the attorney-client privilege to attach to such meetings, attorney attendance is mandatory.
At the first city council meeting following an election of multiple new city council members, a council member requested to enter closed session with Doyle to discuss a civil rights lawsuit that had been brought against the City. Doyle refused to attend the closed session meeting because he did not believe it was in the City’s interest to take any actions in the litigation at that time. Several months later, the city council terminated Doyle’s employment under his contract for no cause. Doyle sued the City, alleging that his refusal to enter closed session constituted protected whistleblowing under Labor Code Section 1102.5 because he suspected (without evidence) that the city council may take illegal action in closed session.
The City demurred to Doyle’s complaint, arguing that its termination was not based on any whistleblowing complaints, but rather Doyle’s refusal to provide legal advice in closed session — a responsibility he bore under the Rules of Professional Conduct governing lawyers and his own job description. The court ultimately dismissed Doyle’s lawsuit with prejudice after demurring to Doyle’s amended complaint. The City was only able to dispose of the case at this early phase, however, because Doyle’s lawsuit was based primarily on conduct that occurred at a city council meeting in open session and the City successfully requested that the court take judicial notice of the transcript of that meeting. Absent that public record, the City likely would have needed to engage in protracted discovery, potentially involving depositions of city council members, in order to demonstrate the nondiscriminatory basis for Doyle’s termination.
Doyle provides employers several lessons:
- An employee’s at-will status does not insulate an employer from discrimination/retaliation claims
- Confer with counsel regarding whether to identify the basis for terminating at-will employees. Although not required to affect a termination of an at-will employee, identifying the basis for termination may help insulate an employer from wrongful termination claims.
- Avoid any commingling of disciplinary or termination rationales with references to employees’ protected conduct
- Leverage careful documentation and early consultation with counsel to preserve defensibility and minimize the appearance of mixed motives
Public employers operate in a world where agencies can be sued for almost anything; there is rarely a perfect resolution to an employment matter, and any decision carries some risk. At some point, leaders must make calculated decisions guided by their fiduciary responsibility to manage the organization as best they can. By keeping documentation clean, separating misconduct from any mention of protected status and staying focused on legitimate business needs, agencies can meet their obligations to the public while managing the unavoidable risks that come with public service.
Renne Public Law Group Founding Partner Art Hartinger
Renne Public Law Group Senior Counsel Spencer Wilson
Renne Public Management Group Consultant Debra Gill
“Untangling Misconduct from Protected Activity”
2025 California Public Employers Labor Relations Association Annual Training Conference