Petition for Writ of Certiorari — Jensen v. County of Santa Clara

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Supreme Court, U.S.

FILED

61421 Fee 29 19%

UEFICE OF THE CLERK

No.

In The

Supreme Court of the Cited States

1996 Term

CHERIEL JENSEN,

Appellant & Petitioner

COUNTY OF SANTA CLARA, SANTA CLARA COUNTY

BOARD OF SUPERVISORS, DIANE MCKENNA, ZO!

LOFGREN , RON GONZALES, ROD DIRIDON , MICHAE]

HONDA, SALLY REID, PAUL SAGERS, PETER CLAUS,

GEORGE TOKUSHIGE, DOWARD WASHINGTON,

LEODE FRANKLIN, GREG WASENHOVE, IMELDA

ELONZO , THOMAS FINN, ET. AL. THROUGH 100

Appellees & Respondents

No . 94-16824

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

( ‘heriel JENsen. pro &C

13737 Quito Road

Saratoga. CA 95070

1 408 379-0463

A. ISSUES PRESENTED FOR REVIEW

I. AMERICANS WITH DISABILITIES ACT ISSUES:

a. When do claims for wrongful discrimination, and wrongful

termination under the American's with Disabilities Act, 42

U.S.C.S.. 12101 et. seq. ripen: 1) when the disability occurs — the

date determined in this case; 2) or when refusal to accommodate

occurs the first time, at the time of notice of a year of unpaid,

unrequested medical leave; 3) or later, after renewed request for

accommodation at approach of the end of the one year unpaid leave,

upon refusal to discuss accommodation; or 4) or later still when

refusal to accommodate takes the form of defacto termination?

b. When Congress has set up a specific administrative process

preliminary to the court process, as in the case of the American's

with Disabilities Act, and the agency assigned, the EEOC in this

case, has been assigned a specific fact finding role and has found

evidence of discrimination, defacto termination, and timeliness, and

has issued a right to sue letter, can a federal judge, who has not

conducted an investigation and himself is not assigned a fact finding

role, rule "failure to state a claim" on timeliness, as here?

2. TENTH AMENDMENT, U.S. CONSTITUTION: STATE

CAUSES OF ACTION: What is the responsibility of the federal

courts to address state causes of action in a primarily state complaint

removed to federal court by defendants? Do the California

Constitution, statutes, regulations, and the guarantees therein

evaporate when a case is removed to Federal Courts, as here?

3. WORKER'S COMPENSATION: Does State Worker's

Compensation system nullify California separate Whistle blower

statutes? Does Worker's Compensation system preclude recovery for

deliberate torts, or later adopted statutes which allow an action for

damages in their breech. When worker's compensation system has

no mechanism for review of torts or whistle blower complaints does

Worker's Compensation system nevertheless preclude recovery? Are

specific statutes giving worker leave to seek civil damages annulled

by worker's compensation scheme which does not provide for a trial

by jury or any mechanism to determine fault arising outside of or

even within the Labor Code?

4. Cases on point in the state and federal courts, including a

published case decided on the same day by the Ninth Circuit by a

different panel of judges, are at odds with the decision.

—

B. LIST OF ALL PARTIES TO THE PROCEEDING IN THE

COURT WHOSE JUDGMENT IS SOUGHT TO BE

REVIEWED.

CHERIEL JENSEN

Appellant & Petitioner,

(1) COUNTY OF SANTA CLARA.

(2} SANTA CLARA COUNTY BOARD OF SUPERVISORS,

(3) DIANE MCKENNA,

(4) ZOE LOFGREN,

(S) RON GONZALES,

(6) ROD DIRIDON,

(7) MICHAEL HONDA ,

(8) SALLY REID,

(9) PAUL SAGERS,

(10) PETER CLAUS,

(11) GEORGE TOKUSHIGE,

(12) DOWARD WASHINGTON,

(13) APPLIED PEST MANGEMENT, IN

(14) GREGORY CLARK*,

(1S) INSTAR PEST CONSULTANT'S IN

(16) LEODE FRANKLIN,

(17) GREG WASENHOVE.

(18) IMELDA ELONZO

(19) THOMAS FINN,

eT. AL. (DOES) THROUGH 100

\ppellees & Respondents

‘Defendant's numbered (13), (14) and (15) above were reinstated in

the Complaint by the United States Court of Appeal for the Ninth

Circuit and are not subject to this Petition

C. TABLE OF CONTENTS

ISSUES PRESENTED FOR REVIEW

LIST OF ALL PARTIES TO THE PROCEEDING

IN THE COURT WHOSE JUDGMENT IS

SOUGHT TO BE REVIEWED.

TABLE OF CONTENTS .

TABLE OF AUTHORITIES ..

TABREOFCASES .......

CONSTITUTIONAL AMENDMENTS

STATUTES AND RULES . . . . --<=Sdiliiilli toa

OTHER AUTHORITIES

ORDERS, MEMORANDUM, AND JUDGMENTS

STATEMENT OF GROUNDS ON WHICH

JURISDICTION IS BASE

CONSTITUTIONAL PROVISIONS,

STATUTES AND

REGULATIONS, VERBATIM

STATEMENT OF THE CASE.

History in the District Court.

History in the United States Court of Appeals for the .

Ninth Circuit.

INTRODUCTION

Outline of Issues Presented For Consideration by the

Supreme Court.

Fundamental State Issues in the Removed Complaint

Were Not Addressed in the Memorandum of The U. S.

Court of Appeals for the Ninth Circuit.

Facts in the Record and Key Statutes May Have Been

Overlooked.

ee.

C. TABLE OF CONTENTS, CONTINUED

4, The Taking of Petitioner's Job Underthe . . . . . 11

Circumstances is Against Fundamentai “ublic Policy.

The Worker's Compensation System Does Not Have

Authority to Compensate for Petitioner's Job Loss or

Wage Loss, Only for Compensation for Disability

Deficit. Specific Overlooked Code Sections Allow for

Recovery of Wages and Restoration of Job Rights. If

the County ts Dismissed from all Causes of Action,

There is No True Remedy.

5 Summary of Argument... . . a 1]

J. Pee) 6 5 ne eee 1 |

| Accrual of Cause of Action Under the American's . . 1 |

With Disabilities Act was Determined by the Wrong

lest — Date of Onset of Disability. This Incorrect Test

is in Conflict with the Act, with the Purposes of the

Act, and in Conflict with Newly Developing Federal

Appellate Case Law.

2 it is an Abuse of Discretion to Overlook the Claims . 15

Made Under the California Statutes, and California

Established Policy.

3 Constitutional Causes of Action. eee eee 16

4 California Governmental Employee Immunity isa . . 20

Qualified Immunity and Does Not Protect Those Who

Knowingly Break the Law, Those Who Violate the

California Constitution, Those Who Commit Torts,

and It Does Not Protect Employees With Immunity

Where the Governmental Agency Itself is Not

lmmune

5 State Whistleblower Causes of Action Were Not 24

Addressed in the Courts Below.

6. Retaliatory Discharge is Without Recourse Within 26

Worker's Compensation System.

Petitioner Complied with the California Government |

Code Claims Act.

10..

C. TABLE OF CONTENTS, CONTINUED

Petitioner Has Standing to Assert her Right to Her

Job and W ages Through the Government Code.

Petitioner Should have Standing to Assert an Action

Against Trespassers to Secure the Sz ifety of Her

Property, Freedom From Harassment and Freedom

From Actual Damaging Trespass.

Punitive damages should be allowedfor such

damaging acts.

CONCLUSION AND RELIEF SOUGHT

rae |

D. TABLE OF AUTHORITIES

1. TABLE OF CASES

Badih v. Myers, Cal. Rptr.2d 229, 231 (Cal.App 16, 2

| Dist. July 20, 1995)

Board of Regents of State Colleges v. Roth, 408 U.S. 564 20

9? S.Ct. 2701. 2708-09. 33 L.Ed.2d 548 (1972)

Buchanan vy. City of Newport Beach (1975) 3

123 Cal. Rptr. 338, 50 C.A.3d 221

Burfield v. Brown, Moore, Flint, Inc., 51 3d 583

(Sth Cir. 1995)

iplis v. Monterey County (1979) 158 Cal. Rptr. 395

Y7 C.A.3d 249

Clements V. Airport Authority of Washoe County, U.S.C.S »4

Mh, No. 93- 16693, October 26, 1995. by Reinhardt, J

minittee to Defend Re produ tive Rivhts v. Myers

(1981) 29 C3d 252, 172 Cal.Rptr 866

625 P.2d 779, 20 ALR4th 1118

‘ (nour \ ( niversily of Me Sys (1994) ( \ I Me 35% 3d 6 U

nin. Town of Amesbury, 895 F.Supp 375 > a ol. oe

Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 699 26

enn v. Clearman's Golden Cock Inn (1961) 6

192 Cal.App.2d 793, 797

y Flawatian Dredging | (1945) 22 Cal.2d 24 6

157 P.2d 367

Hofferber v. First Nat. Bank (1977, WD Okla)

137 | Supp 788

1d 1343

Duncan (1987, 2nd Dist.) 189 Cal.App

234 Cal.Rptr 877

|. TABLE OF CASES, CONTINUED

Lundeen Coating Corp. v. Department of Water and 2.3

Power of City of Los Angeles (App.2 Dist.1991)

283 Cal.Rptr. 551, 232 Cal.App.3d 816,

rehearing denied, review denied.

Nagy v. Whittlesey Automotive Group (1995 Cal App 4th 16

Dist.) 47 Cal. Rptr.2d 395.

Rojo v. Klinger (1990) §2 Cal 3d 65. 89. 276 Cal Rptr. 130, 16,25

801 P.2d 373.

Sanchez v. Unemployment Ins. Appr. Bd. (198A) 24

36 Cal.3d 575, 588, 205 Cal.Rptr. 501, 685 P.2d 61

Smith vy. United Parcel Service of America, Inc. ie. to

65 F.3d 266 (2nd Cir. September 8, 1995)

Tameny vy. Atlantic Richfield Co., (14980) 27 Cal 3d 167. 25

164 Cal.Rptr 839, 610 P.2d 1330.

Watson v. Department of Rehabilitation ( App. 2 Dist 27

1989) 261 Cal.Rptr. 204, 212, Cal App.3d 1271

Vil

2. CONSTITUTIONAL AMENDMENTS

FEDERAL CONSTITUTION AND 16.

RELATED GOVERNANCI

Fenth Amendment

hifth Amendment Xl,

Fourteenth Amendment xil, 1S, 19, 20,

Declaration of Independence Xil,

The Constitution of the United States, Preamble KIL,

U.S. Constitution Article HH], xii, 19,

California Constitution, Article |: § | xii, 7, 11, 17, 18, 19,

California Constitution, Art. | § 2 XHH,

California Civil Code § 52.1 xii, 7, b7

$ STATUTES AND RULES

I.R.C.P. Rule 12 (b), (e) and (f)

12 US.CS. § 1983 “ii, 6

12 U.S.C.S. § 1343 (3)

American's With Disabilities Act

USCS 8, 10, 13, 14, 1S, 16

§ 12101

§ 12111

S 12112

12131

12132

12133

CALIFORNIA CIVIL CODE: § 43

CALIFORNIA GOVERNMENT CODI

Calif. Claims Act (Calf. Gov. Code §& 800 et eq 2]

§ 862. (b) xVv1,8, 21, 22

S815 RVI

S 815.6 XVI

> 818.4

§ $20.2 KVi

» $20.8 XVI

§ $20.9 XVI

S 835 KVvI. O

§ 3503 XVII

S 12940 Kvi, 10

§ 12940— 12965

S 53296 Kvint, LO, 16

§ 59798 xvint, LO

53298.5

Vill

KVvI. 8. 10,7

3. STATUTES AND RULES, CONTINUED

CALIFORNIA FOOD AND AGRICULTURE CODE

AGRICULTURAL CHEMICALS--ECONOMIC POISONS.

Division 7, Chapter 2

§ 12977. | : ) | XIX, 17

i: ee | | oi xix, 17

§ 12982... . , | > 78,37

§ 12985. . . , | | , | . Xx, 17

§ 12991. | | i aeaee

§ 14002... . | | : Sete

§ 14003. Xx, 17

eS aye oh mas xxi, 17

CALIFORNIA LABOR CODE

Labor Code Worker's Compensation Remedy. . xxii, 10, 11,27

§ 98.7, Sy ar Oe ee a oe ee Na, ee ————

Ll. Saas oe . . XXi, 16

§ 1103. Parks Fie : a nae ce 16

§1104. . ere olde cease: s -_ . . XXi, 16

§ 1105... . . . &xt, 8, 16

§6310 .... a eae ae: (oC

§ 6311. re ' aot | | Xxii, 27

i. | > Si Se ee ie aoe a

§6400. .... a0? xxi, 17

§6402. ..... aa a re . . Xxill, 17

re XX Ht, 17

MING te Ges els G4 sven a ys.

California Health and Safety Code, Proposition 65 is 8

California Code of Regulations, Title 3 § 6618. . . &xit, 17

California Code of Regulations, Title 3 § 6198... |

California Code of Regulations Title 3 § 6726 ae VXill

4. OTHER AUTHORITIES

Prosser on Torts, p. SO, Ch 2, Keeton. 27

E. ORDERS, MEMORANDUM, AND JUDGMENTS

The following are the subject of this appeal:

|. Petition for rehearing regarding county defendant's denied

December 1, 1995. (Appendix 1.)

2. Memorandum of the United States Court of Appeals for the

Ninth Circuit filed and entered October 26, 1995, the judgment of the

district court affirmed in part and reversed in part. (Appendix 2.)

Judgment of the United States Court of Appeals for the Ninth Circuit

filed and entered December 12, 1995. (Appendix 3)

3. District court judgment and orders include order of January 18,

1994 dismissing individual government defendants and dismissing

certain causes of action (Appendix 4), the order of June 27, 1994

dismissing remaining causes as to County defendants and Finn (but

not corporate defendants) (Appendix 5), and final Judgment, all

parties: entered September 19, 1994 (Appendix 6) Date of filing

appeal to United States Court of Appeal for the Ninth Circuit:

October 17, 1994.

F. STATEMENT OF GROUNDS ON WHICH

JURISDICTION IS BASED

i, Date of entry of Memorandum sought to be reviewed:

Memorandum of the United States Court of Appeals for the Ninth

Circuit filed and entered October 26, 1995, the district court affirmed

in part and reversed in part. (Appendix 2.)

‘i Date of filing and entry of Judgment of the United States Court

of Appeal for the Ninth Circuit entered December 12, 1995 the

district court affirmed in part and reversed in part. (Appendix 3.)

k 3 Date of any order on Petition for rehearing: December 1,

1995. (Appendix 1.)

4. Statutory provisions conferring jurisdiction to review the

judgment or decree: 28 U.S.C.S. §§ 2106.

G. CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS, VERBATIM

American's With Disabilities Act, 42 U.S.C.S. 12101 et. seq:

§ 12101. Congressional findings and purposes

(b) Purpose. It is the purpose of this Act—

(1) to provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities:

(2) to provide clear, strong, consistent, enforceable standards

addressing discrimination against individuals with disabilities:

(3) to ensure that the Federal Government plays a central role in

enforcing the standards established in this act on behalf of

individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the

power to enforce the fourteenth amendment and to regulate

commerce, in order to address the major areas of discrimination

faced day-to-day by people with disabilities.

§ 12111. Definitions

(5S) Employer. (A) In general. The term "employer" means a

person engaged in an industry affecting commerce who has 15 or

more employees for each working day in each of 20 or more calendar

weeks in the current or preceding calendar year, and any agent of

such person, except that, for two years following the effective date of

this title, an employer means a person engaged in an industry

affecting commerce who has 25 or more employee for each working

day in each of 20 or more calendar weeks in the current or preceding

year, and any agent of such person.

(B) Exceptions. The term "employer" does not include -

(i) the United States, a corporation wholly owned by the

government of the United States, or and Indian tribe: or

(ii) a bona fide private membership club (other than a labor

organization) that is exempt from taxation under section 501(c) of

the Internal Revenue Code of 1986.

(8) Qualified individual with a disability. The term "qualified

individual with a disability" means an individual with a disability

who, with or without reasonable accommodation, can perform the

essential functions of the employment position that such individual

holds or desires. For the purposes of this title, consideration shall be

given to the employer's judgment as to what functions of a job are

essential, and if an employer has prepared a written description

before advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential functions of

the job.

§ 12112. Discrimination

(a) General rule. No covered entity shall discriminate against a

qualified individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation,

job training, and other terms, conditions, and privileges of

employment.

(L:ffective date of this section: Act July 26, 1990, P. L. 101-336,

Title 1, § 108, 104 Stat. 337, which appears as 42 USCS § 12111

noie, provides that this section is effective 24 months after

enactment.)

§ 12131. Definition As used in this title:

(1) Public entity. The term "public entity” means —

(A) any State or local government;

(B) any department, agency, special purpose district, or other

instrumentality of a State or States or local government; and ...

(2) Qualified individual with a disability. The term "qualified

individual with a disability” means an individual with a disability

who, with or without reasonable modifications to rules, policies, or

practices, the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids and services,

meets the essential eligibility requirements for the receipt of services

or the participation in programs or activities provided by the public

entity.

§ 12132. Discrimination

Subject to the provisions of this title, no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any

such entity.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in section 505 of the

Rehabilitation Act of 1973 (29 U.S.C.S. 794a) shall be the remedies,

procedures, and rights this title provides to any person alleging

discrimination on the basis of disability in violation of section 202.

(July 26, 1990. P.L. 101-336, Title I. Subtitle A, § 201. 104 Stat

337.)...42U.S.C.S. §§ 12131-12133... shall become effective 18

months after the date of enactment of this act.)

FEDERAL CONSTITUTION AND RELATED GOVERNANCI

42 U.S.C.S. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

crom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proceeding for redress. For the

purposes of this section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to be a statute of the

District of Columbia.

Tenth Amendment: The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.

Fifth Amendment: No person shall . . . be deprived of life,

liberty, or property . .. without due process of law . . .

Fourteenth Amendment: No state shall make or enforce any law

which shall abridge the privileges and immunities of citizens of the

United States nor shall any state deprive any person of life, liberty or

property without due process of law, nor deny to any person within

its jurisdiction the equal protection of the laws.

Declaration of Independence:

We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain

unalienable rights, that among these are Life, Liberty and the Pursuit

of Happiness.

The Constitution of the United States, Preamble:

We the people of the United States, in order to establish a more

perfect Union, establish justice, ensure domestic tranquillity, provide

for the common defence, promote the general welfare, and secure the

blessings of liberty to ourselves and our posterity, do ordain and

establish this Constitution of the United States of America.

CALIFORNIA CIVIL CODE: § 43. General Personal Rights

Besides the personal rights mentioned and recognized in the

Government Code, every person has, subject to the qualifications and

restrictions provided by law, the right of protection from bodily

restraint or harm, from personal insult, from defamation, and from

injury to his personal relations.

California Constitution, Article 1: § 1. Inalienable rights

Section 1. All people are by nature free and independent and have

certain inalienable rights. Among these are enjoying and defending

life and liberty, acquiring, possessing, and protecting property, and

pursuing and obtaining safety, happiness and privacy.

(Am. Nov. 5, 1974.) (Privacy originally added Nov. 7, 1972.)

California Constitution, Art. 1 § 24. Rights not dependent on

federal constitution; rights reserved to the people

Sec. 24 Rights guaranteed by this Constitution are not dependent

on those guaranteed by the United States Constitution.

This declaration of rights may not be construed to impair or deny

others retained by the people.

(Added Nov. 1974.)

California Civil Code § 52.1. Civil actions for protection of

rights; damages, injunctive and other equitable relief; violation

of orders

(a) Whenever a person or persons, whether or not acting under

color of law, interferes by threats, intimidation, or coercion, or

attempts to interfere by thre ts, intimidation or coercion, with the

exercise or enjoyment by any individual or individuals of rights

secured by the Constitution or laws of the United States, or of the

rights secured by the Constitution or laws of this state, the Attorney

General, or any district attorney or city attorney may bring civil

action for injunctive relief and other appropriate equitable relief in

the name of the people of the State of California, in order to protect

the peaceable exercise or enjoyment of the right or rights secured.

(b) Any individual whose exercise or enjoyment of rights

secured by the Constitution or laws of the United States, or of rights

secured by the Constitution or laws of this state, has been interfered

XIV

with, or attempted to be interfered with. as described in subdivision

(a), may institute and prosecute in his or her own name and on his or

her own behalf a civil action for damages, including but not limited

to, damages under Section 52, injunctive relief, and other appropriate

equitable relief to protect the peaceable exercise or enjoyment of the

right or rights secured.

(g) Actions under this section shall be independent of any other

remedies or procedures that may be available to an aggrieved person

under any other provisions of law.

(h) In addition to any damages, injunction, or other equitable

relief awarded in an action brought pursuant to subdivision (b). the

court may award the petitioner or plaintiff reasonable attorney's fees.

CALIFORNIA GOVERNMENT CODE

USE OF PESTICIDES,

§ 862. Use of economic poison or injurious materials; definitions

(b) A public entity is liable for injuries caused by its use of

pesticide to the same extent as a private person except that no

presumption of negligence arises from the failure of a public entity or

a public employee to comply with the provision of a statute or

regulation relating to the use of a pesticide if the statute or regulation

by its terms is made inapplicable to the public entity or the public

employee.

§ 815. Liability for injuries generally; immunity of public entity;

defenses

Except as otherwise provided by statute:

(a) A public entity is not liable for an injury, whether such injury

arises Out of an act or omission of the public entity or a public

employee or any other person.

(b) The liability of a public of a public entity established by this

part (commencing with Section 814) is subject to any immunity of

the public entity provided by statute, including this part, and is

subject to any defenses that would be available to the public entity if

it were a private person.

§ 815.6. Mandatory duty of public entity to protect against

particular kinds of injuries

Where a public entity is under a mandatory duty imposed by an

enactment that is designed to protect against the risk of a particular

kind of injury, the public entity is liable for an injury of that kind

proximately caused by its failure to discharge the duty unless the

public entity establishes that it exercised reasonable diligence to

discharge the duty.

§ 820.2. Discretionary acts

Except as otherwise provided by statute, a public employee is not

liable for an injury resulting from his act or omission where the act or

omission was the result of the exercise of discretion vested in him,

whether or not such discretion be abused.

§ 820.8. Acts or omissions of others

Except as otherwise provided by statute, a public employee is not

liable for an injury caused by the act or omission of another person.

Nothing in this section exonerates a public employee from liability

for injury proximately caused by his own negligence or wrongful act

Or Omission.

§ 820.9 Mayors, members of local public entities, boards,

commissions and advisory bodies not vicariously liable for

injuries caused by public entity

Members of city councils, mayors, members of boards of

supervisors, members of school boards, members of governing

boards of other local public entities, members of locally appointed

boards and commissions, and members of locally appointed or

elected advisory bodies are not vicariously liable for injuries caused

by the act or omission of the public entity or advisory body. Nothing

in this section exonerates an official from liability for injury caused

by that individual's own wrongful conduct. Nothing in this section

affects the immunity of other public officials.

Public Entities and Employees,

DANGEROUS CONDITIONS OF PUBLIC PROPERTY

§835. Conditions of liability

Except as provided by statute, a public entity is liable for injury

caused by a dangerous condition of its property if the plaintiff

establishes that the property was in a dangerous condition at the time

of the injury, that the injury was proximately caused by the

dangerous condition, that the dangerous condition created a

reasonably foreseeable risk of the kind of injury which was incurred,

and that either:

(a) A negligent or wrongful act or omission of an employee of the

public entity within the scope of his employment created the

dangerous condition; or

(b¥he public entity had actual or constructive notice of the

dangerous condition under Section 835.2 a sufficient time prior to the

XVI

injury to have taken measures to protect against the dangerous

condition.

§ 3503. Representation of members, membership admission and

dismissal regulation; right of personal appearance

Recognized employee organizations shall have the right to represent

their members in their employment relations with public agencies.

. Nothing in this section shall prohibit any employee from appearing

in his own behalf in his employment relations with the public

agency.

§ 12940 Employers, labor organizations, employment agencies

and other persons; unlawful employment practices; exceptions

It shall be an unlawful employment practice, unless based on a

bona fide occupational qualification, or except where based upon

applicable security regulations established by the United States or the

State of California:

(a) For an employer, because of the race. religious creed, color,

national origin, ancestry, physical disability, mental disability,

medical condition, marital status, or sex of any person, to refuse to

hire or employ the person or to refuse to select the person for a

training program leading to employment, or to bar or to discharge the

person from employment or from a training program leading to

employment, or to discriminate against the person in compensation

or in terms, conditions or privileges of employment.

(g) For any person to aid, abet, incite. compel, or coerce the doing

of any of the acts forbidden under this part.

(h)(1) For an employer, . . . or any other person, because of .... .

physical disability, . . . medical condition, . . .to harass an employee

or applicant.

(1) For an employer . . . to fail to take all reasonable steps

necessary to prevent discrimination and harassment from occurring.

(k) For an employer or other entity covered by this part to fail to

make reasonable accommodation for the known physical or mental

disability of an applicant or employee. Nothing in this subdivision

or in paragraph (1) or (2) of subdivision (a) shall be construed to

require an accommodation that is demonstrated by the employer or

other covered entity to produce undue hardship on its operation.

California Government Code, Cont.

DISCLOSURE OF INFORMATION: LOCAL GOVERNMENT

§ 53296. Definitions

Definitions used in this article:

(b) "Disciplinary action" means any direct form of discipline as

defined in personnel rules and regulations adopted by the local

agency. "Disciplinary action" shall include the firing of an

employee.

containing evidence regarding gross mismanagement of a significant

waste of funds, an abuse of authority, or substantial and specific

danger to public health or safety.

(d) “Complaint means any written document containing a

disclosure of information as specified in subdivision (c).

§ 5329Wiling complaint; exhaustion of administrative

remedies; procedure; penalty of perjury

(a) An employee, or applicant for employment, shall have the

right to file a complaint with the local agency within 60 days of the

date of the act or event which is the subject of the complaint.

(b) Prior to filing a written complaint pursuant to this article, the

employee shall first make a good faith effort to exhaust all available

administrative remedies. The 60-day time limit specified in

subdivision (a) shall be extended by the amount of time actually

utilized by the employee in pursuing available administrative

remedies.

with the locally adopted administrative procedure. If there is no

administrative procedure, the complaint shall be filed with the

governing body.

(d) All complaints brought by employees under this article shall be

filed under penalty of perjury.

§ 52298. Reprisals

(a) No local agency officer, manager, or supervisor shall take

reprisal action against any employee or applicant for employment

who files a complaint pursuant te Section 53297.

§ 53298.5. Violations; nunishment

(a) Any officer, manager, or supervisor who violates Section

53298 with malicious intent is punishable by a fine not to exceed ten

thousand dollars ($10,000) and imprisonment in the county jail for

XVIII

up to a period of one year. In addition. any local agency officer.

manager or supervisor who maliciously engages in conduct

prohibited by Section 53298 shall be disciplined as provided by the

local personnel rules and regulations.

(b) In addition to all other penalties provided by law, any local

officer, manager, or supervisor who has been found by a court to

have violated the provisions of Section 53298 with malicious intent

shall be individually liable for damages in an action brought against

him or her by the injured employee. Punitive damages may be

awarded by the court where the offending party has acted with

malice. Where liability has been established. the injured employee

shall also be entitled to reasonable attorney's fees as provided by law.

In no way, shall the provisions of this article establish any liability

for punitive damages or any new cause of action against the local

public entity other than the liabilities contained in existing law.

CALIFORNIA FOOD AND AGRICULTURE CODE

AGRICULTURAL CHEMICALS--ECONOMIC POISONS,

Division 7, Chapter 2

§ 12977. Enforcement

The director, and the commissioner of each county under the

direction and supervision of the director, shall enforce the provisions

of this article and the regulations adopted pursuant to it.

§ 12978. Pesticide applications on specified public property;

posting of warning signs in English and Spanish; application of

section

Pesticide applications on public property which takes place on

school grounds, parks or other public rights-of-way where public

exposure is foreseeable shall be posted with warning signs. The

signs shall be in English and Spanish and shall contain a warning that

the area has been treated with a pesticide and that individuals are not

to enter the area.

(a) This section shall apply to all pesticide applications which

have worker reentry intervals of at least 24 hours.

(b) Posting shall be accomplished immediately prior to pesticide

application, and the signs shall be removed within 24 hours after the

expiration of the reentry interval.

points of public entry.

(d) The agency may substitute a barrier for the warming signs to

exclude public exposure to a treated area. (Added by Statute 1985.)

XIX

§ 12982. Enforcement

The director and the commissioner of each county under the

direction and supervision of the director, shall enforce the provisions

of this article and the regulations adopted pursuant to it. The local

health officer may assist the director and the commissioner in the

enforcement of the provisions of this article and any regulations

adopted pursuant to it. The locai health officer shall investigate any

condition where a health hazard from pesticide use exists, and shall

take such necessary action, in cooperation with the commissioner, to

abate any such condition. The local health officer may call upon the

State Department of Health Services for assistance pursuant to the

provisions of Section 2951 of the Health and Safety Code.

§ 12985. Violations of worker safety reentry requirements

Any person who orders an employee to enter an area posted

with a warning sign in violation of any worker safety reentry

requirements promulgated pursuant to this article by the director is

guilty of a misdemeanor. A violation of this article affecting any

worker or workers constitutes a separate offense for each affected

worker. (Added by statute, 1985)

§ 12991. Unlawful acts

It is unlawful for any person, by himself, or through another, in

connection with any substance or mixture of substances included

within the scope of this chapter, to do any of the following:

(a) Make any material or substantial misrepresentation.

(b) Make any false promises of a character likely to influence,

induce or deceive.

(d) Cause to be published or distributed any false or misleading

literature, or cause to be displayed any false or misleading

advertisement.

(e) For any person to use, store, transport, handle, or dispose of

any economic poison, or any container which holds or has held such

economic poison, except in compliance with the rules and

regulations of the director.

§ 14002. Application to state and federal agencies

This chapter applies to all agencies of the United States and the

State of California and its subdivisions or to their officers, agents or

employees. Nothing in this section affects the liability of a public

entity under Section 862 of the Government Code.

§ 14003. Liability

This article does not relieve any person from liability for any

damage to the person or property of another person which is caused

by the use of any restricted material.

§ 14011. Application of materials

It is unlawful for any person to apply any restricted material

for which regulations have been adopted except as provided in the

regulations which are adopted by the director

CALIFORNIA LABOR CODE :

§ 1102.5.

(b) No employer shall retaliate against an employee for

disclosing information to a government or law enforcement agency,

where the employee has reasonable cause to believe that the

information discloses a violation of state or federal statute. or

violation or noncompliance with a state or federal regulation.

§ 1103.

Any employer who violates this chapter is guilty of a

misdemeanor punishable, in the case of an individual. by

imprisonment in the county jail not to exceed one year or a fine of

not to exceed $1000 or both and, in the case of a corporation, by a

fine of not to exceed $5000.

§ 1104.

In all prosecutions under this chapter, the employer is

responsible for the acts of his managers, officers, agents and

employees.

§ 1105. Employee's action for damages

Nothing in this chapter shall prevent the injured employee from

recovering damages from his employer for injury suffered in

violation of this chapter.

§ 6310

(a) No person shall discharge or in any manner discriminate against

any employee because such employee has either: (1) made any oral

or written complaint to the division, other governmental agencies

having statutory responsibility for or assisting the division with

reference to employee safety or health, his employer, or his

representative, or (2) instituted or caused to be instituted any

proceeding under or relating to his rights or has testified or is about

XXI

lo testify in any such proceeding or because of the exercise by such

employee on behalf of himself or others of any rights afforded him.

(b) Any employee who is discharged, threatened with discharge,

demoted, suspended, or in any other manner discriminated against in

the terms and conditions of employment by his employer because

such employee has made a bona fide oral or written complaint to the

division or any other governmental agency having statutory

responsibility for or assisting the division with reference to employee

safety or health, his employer, or his representative, of unsafe

working conditions, or work practices, in his employment or place of

employment shall be entitled to reinstatement and reimbursement for

lost wages and work benefits caused by such acts of the employer.

Any employer who willfully refuses to rehire, promote, or otherwise

restore an employee or former employee who has been determined to

be eligible for such rehiring or promotion by a grievance procedure,

arbitration, or hearing authorized by law, is guilty of a misdemeanor.

§ 6311. Retaliation for refusal to work in violation of health and

safety standards; action for wages

No employee shall be laid off or discharged for refusing to perform

work in the performance of which this code, including Section 6400,

any occupational safety or health standard or any safety order of the

division or standards board would be violated, where the violation

would create a real and apparent hazard to the employee or his or her

fellow employees. Any employee who is laid off or discharged in

violation of this section or is otherwise not paid because he or she

refused to perform work in the performance of which this code, any

occupational safety or health standard or any safety order of the

division or standards board will be violated and where the violation

would create a real and apparent hazard to the employee or his or her

fellow employees shall have a right of action for wages for the time

of the employee is without work as a result of the layoff or discharge.

(Emphasis added.)

§ 6312. Discrimination complaint

An employee who believes that he or she has been discharged or

otherwise discriminated against by any person in violation of Section

6310 or 6311 may file a complaint with the Labor Commissioner

pursuant to Section 98.7.

§ 6400. Safe and healthful employment and place of

employment

Every employer shall furnish employment and a place of

employment which are safe and healthful for the employees therein.

XXII

§ 6402. Preventing entry into unsafe or unhealthful place

No employer shall require, or permit any employee to go or be

in any employment or place of employment which is not safe and

healthful.

§ 6408. Information for employees.

All employers shall provide information to employees in the

following ways, as prescribed by authorized regulations:

(d) Allow access by employees or their representatives to

accurate records of employee exposures to potentially toxic materials

or harmful physical agents.

(e) Notification of any employge who has been or is being

exposed to toxic material or harmful physical agents in

concentrations or at levels exceeding those prescribed by an

applicable standard, order, or special order, and informing any

employee so exposed of corrective action being taken.

§ 6409.3. Treatment for pesticide poisoning

In no case shall the treatment administered for pesticide

poisoning or a condition suspected as pesticide poisoning be deemed

to be first aid treatment.

Labor Code § 98.7

(a) Any person who believes that he or she has been discharged or

otherwise discriminated against in violation of any provision of this

code under the jurisdiction of the Labor Commissioner may file a

complaint with the division within 30 days after the occurrence of the

violation.

(f) The rights and remedies provided by this section do not

preclude an employee from pursuing any other rights and remedies

under any other provision of law.

California Code of Regulations, Title 3

§ 6618

(a) Each person performing pest control shall give notice to the

operator of the property to be treated before any pesticide is applied

(b) The operator of the property shall give notice to all persons

known to be on the treated property or likely to enter during the

period of time any restrictions are in effect.

XXH1

and identify the pesticide by brand name or common chemical name

and be adequate to advise of the precautions, including reentry

restrictions, to be observed as printed on the registered label or

included in applicable laws and regulation.

(d) Compliance with Section 8538 of the Business and Professions

Code meets the requirements specified in this section.

§ 6726 Emergency Medical Care:

has a pesticide illness or when an exposure to a pesticide has

occurred that might reasonably be expected to lead to an employee's

illness, the employer shall ensure that the employee is taken to a

physician immediately.

Note the section is not part of the Labor Code (Worker's

Compensation) and nothing in this section requires emergency care

be through the Worker's Compensation process.

XXIV

In The

Supreme Court of the Cinited States

1996 Term

COUNTY OF SANTA CLARA, SANTA CLARA COUNTS

BOARD OF SUPERVISORS, DIANE MCKENNA. Zo}

LOPGREN , RON GONZALES, ROD DIRIDON. MICHAL

HONDA, SALLY RHD, PAUL SAGERS, PETER CLAUS

GEORGE TOKUSHIGE, DOWARD WASHINGTON

LEODE FRANKLIN, GREG WASENHOVE. IMELDA

ELONZO, THOMAS FINN, EP. AL. THROUGH 100

Appellees & Respondents

No . 94-16824

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUI1

PETITION FOR WRIT OF CERTIORARI

2°72 °F

19/47 Quito Road

\ iraloga A OSC)

1408 479 O463

H. STATEMENT OF THE CASE

Unnoticed pesticide exposures took place in Petitioner's

workplace during her we*king hours for 14 plus years without her

knowledge, while Petit “ser worked as a planner for the County of

Santa Clara in the Cou..; Government Center high rise two tower

building complex. At the same time, Petitioner suffered from an

unexplained series of recurring illnesses of the same

symptomatology, and then increasingly severe cumulative injury as

well, without knowing the illness was on-going and recurring

workplace injury.

Petitioner discovered June 15, 1992 a single in-building

restricted pesticide application June 12, 1992 during her working

hours, after which she had again become ill with the same pattern of

symptoms. Over the following two weeks Petitioner, ill but trying to

work part time, and became increasingly injured and then disabled.

She learned after the fact she had in that two week period

encountered several more unnoticed workplace exposures as she

tried to return to take in and pick up work. Her doctor ordered

specialized expert medical assistance with the toxic injury (Calif.

Code of Reg. Title 3 § 6726, p. xxiv; Calif. Labor Code § 6409.3. p.

xxiii) which the county, with instruction by their advisor

(Respondent) Mr. Finn, refused to approve and which care was

unobtainable without their approval.

Petitioner's doctor ordered that she could not return to that

facility and could not attend any workplace or other place that had

been treated with pesticide in the year prior. Petitioner, then

critically ill from the series of toxic exposures and unable to work.

was on sick leave. With agreement of the county and on instructions

of her doctor Petitioner then took a one month medical unpaid leave

ending August 10, 1992. When her doctor released her to work half

time, with the strict qualification that the workplace be non toxic, the

county said she would receive something. In mid September she

received a form showing the county had placed her on a one year,

unrequested, unpaid, and unsupported medical leave.

Over the next months Petitioner was sent billing documents

showing more than a year of toxic applications discovered in the

controller's records by colleagues. These records indicated many

unnoticed pesticide applications in her workplace. Failure to notice

restricted pesticide application is a violation of Calif. Food & Ag.

Code § 12978, (p. xix), and a violation of Title 3 § 6618, Calif. Code

of Regulation (p. xxiii). Furthermore they were generally done

during the workday while workers were in the facility at their posts.

Then Petitioner learned by comparing these records to her time

sheets that they coincided with her time off for illness, and she

learned later still that these practices had been underway for the

entire time she had worked for the county, explaining recurring

symptoms throughout her employment.

Still later Petitioner learned the county also routinely used the

recognized cancer agent, hydrazine in the air conditioning. The

facility has been termed a sick building. State Health Department

studies had been conducted in the year preceding these events when

very high brain cancer rates in the building came to light, however

the county did not disclose to the State Department of Health the

toxic conditions of the building and thus the State went looking for

electromagnetic waves. While a high brain cancer rate was

acknowledged, with the essential information on the toxic conditions

concealed, causes were not uncovered. Respondent/defendant Paul

Sagers was in charge both of the pesticide application practices and

the brain cancer study and thus could have made the practices known

had he chosen to do so.

Prior to her last series of injuries leading to disability, an

incident of exposure brought about the discovery of the toxic

practices of defendant's. Petitioner had been asked to attend a meet

and confer session where the subject of the use of pesticide was put

forth as if it was a new proposal by management for union approval.

The proposal was represented as if it were a one-of-a-kind event for a

case of flees. The union side of the table rejected the use of

restricted pesticides and insisted the county instead pursue the issue

of steam cleaning the carpeting which had never been done in the 16

years the building had been opened. The union agreed to the use of a

non-restricted growth regulator (Methoprene) and also insisted that

any chemical use be properly noticed at all entrances ahead of time,

MSDS's be made available as the Labor Code requires, and the

application only take place when county worker's and the public

were absent.

Two days later, Friday, June 12, 1992, an attendee from the

union side of the meet and confer session phoned Petitioner in the

afternoon to tell her she had discovered by accident the pesticide

Saftotin, a restricted organophosphate would be applied that evening.

Petitioner immediately contacted the union office. Her

representative was not there. She then contacted the Deputy Fire

Marshall. He said to stop it if she could. He suggested contacting

the environmental specialist which she did immediately. The

environmental specialist could think of nothing to stop the

application at that late hour. Petitioner immediately contacted her

supervisors’ supervisor and her Department head, neither of whom

had been notified. She then went to the Chair of the Board of

Supervisor's office where his Administrative assistant attempted to

contact the supervisor of Doward Washington, the person who had

set the events in motion. Mr. Washington had left the building for

the day and his supervisor did not know who to contact to change the

order. Knowing that many people worked in the facility long after

the formal work hours, and off-hour public meetings were held there

on a several daily basis, Petitioner went to the first floor and then to

the floors which had been proposed for spraying calling out and

looking quickly about to notify people they must leave. There wasn't

time to cover the floors thoroughly as the facility is a large twin

tower high rise complex. Petitioner then notified people on her own

floor and left with minutes to spare but realized her coffee pot was on

and went back inside the building to turn it off, leaving the facility

with the last group from her floor barely before 6:00 PM, thinking

she had avoided the toxic application,

She became ill that week end with the same symptoms she had

experienced at periodic intervals over the 14 years of her work for

the county, the symptoms increasing in their intensity over that time

as explained in her Complaint. That Monday she still felt too ill to

work but had to go in for a staff meeting and intended to return home

to bed. A work order had been delivered to her from someone on the

third floor where it had been found showing that the restricted

pesticide Safrotin application had begun at 5:15 PM on the third

floor, a floor she had walk into on the Friday before after 5:30 PM.

Though they knew she was ill, she was ordered by her supervisor's

supervisor not leave that Monday as many people needed her

professional help, so she remained until the late afternoon growing

weaker, sicker and finally noticeably wobbly and yellow. She later

learned that many people on the third floor had been throwing up in

the rest rooms and several had been too sick to continue working,

had complained and left. She later also learned that two more

incidents of spraying occurred on that Monday, one at noon, and one

later that afternoon both of which were restricted pesticides, neither

of which was noticed, and both of which while she was there.

Another incident of unnoticed, restricted pesticide application

occurred on Thursday of that week, the following mid-week and

again on June 30, 1992. Each had coincided with her return to pick

up and drop off work as she tried to work part time at home.

With each interval of exposure she was growing increasingly

ill. Finally too ill to work at all or even barely think, her face

blackened with internal bleeding, her eyes yellow, from chemical

jaundice, Petitioner's doctor diagnosed pesticide illness and ordered

she not return to that workplace, and she tried to enlist expert

emergency help. The county refused to allow it and the two

Occupational Medicine doctors her family doctor found would not

see her without county approval. She went instead to an emergency

room doctor who diagnosed pesticide illness but who did not know

how to help her. Thus she was unable to get the timely expert

emergency treatment she required and was critically ill for the next

several months and left disabled, her liver and immune system

unable to handle now even the slightest exposures, and unable to eat

normal food. To go about in the community at all she has to take

charcoal and thus is very isolated.

Petitioner contacted the District Attorney by phone when she

found that the incident Friday, June 12, 1992 was not an isolated

incident or mistake but part of a long term pattern of illegal toxic

applications all unnoticed, and most taking place during her working

hours, and that the "meet and confer" session was carried out for

show alone, concealing all the earlier applications, and without the

county management side (Washington, Claus, Tokushige) having any

intention of complying with their agreement. The District Attorney

through the Ag. Commissioner's office asked her for a release to

subpoena records of her doctors which she consented to in a sworn

written statement, believing that an investigation of these activities

would be carried out in good faith. A year and a half and several

subpoenas later Petitioner was finally sent an incomplete,

unpaginated copy of the "study" and found that the District Attorney

with the help of the Agricultural Commissioner's office (Greg

Wasenhove, Commissioner) produced a report investigating

Petitioner herself instead of the illegal practices and the study was

constructed as a device to try to defeat her Worker's Compensation

claim for the June 12, 1992 incident.

While she was on temporary leave the pesticide applications

continued. Notice were posted, canceled and reposted and

sometimes canceled again but the applications took place anyway,

and the “quarterlies” were still unposted and generally unnoticed but

took place ,.most during the workday.

Petitioner's original claim for damages, in compliance with the

Claims Act (Calif. Gov. Code) was submitted December 8, 1991

(stamped by the Board of Supervisors stamp that day) followed by a

series of amended and late claim applications and claims through

February 7, 1993 with the final rejection letter by the County March

8, 1993. Application to file a late claim, and late claim were

submitted because discovery of the cause had been delayed due to

lack of knowledge flowing from defendant's failure to notice.

Petitioner's original complaint, including all the rejected claims was

filed in Santa Clara County Superior Court Monday, June 14, 1993

(CR 1). First Amended Complaint in the record (CR 55). The

Complaint named pesticide contractors, Petitioner's employer and

individual and governmeat actors with primary roles in cumulative

injury and disability from repeated and continuing use of pesticides

in a high rise building during Petitioner's working hours where she

was both a worker, and sometimes a member of the public, these

applications performed without turning off the air circulation and

performed entirely without notice during the 14 years of Petitioner's

employment. Illegally mixed and formulated to last in the long term,

these applications were particularly hazardous. Exhibit 9 (d), shows

results of urine chemical test confirming chemical injury. (CR 60

Vol. Il)

Petitioner immediately reported the facts she discovered up

through and laterally through official channels within her department

and other appropriate departments and entities, and then to the Board

of nis ahr Learning of the overwhelming nature of the

hazardous and illegal practices she reported immediately upon that

knowledge to the District Attorney by phone and late: filled out

papers they sent to assist their "investigation." At the time the D.A.

seemed to be investigating. Petitioner did not realize the

misrepresentation and the need to report to the Attorney General

until more than a year too late.

Petitioner's employer, Santa Clara County, constructively

discharged Petitioner as a whistle blower for this reporting (Calif.

Gov. Code §§ 53296-53298.5, (pp. ixx) and California Labor Code

§§ 1102.5-1105, and 6312, (pp. vx-vxi)) by means of a convenient,

but unlawful excuse—the disability they caused. The county and

specific individual county government defendant's violated

Petitioner's property rights to her job, as Petitioner had long

established seniority but was constructively discharged without

notice, hearing, meeting, or any due process, or any process at all,

violating the California Constitution right to acquire, posses and

protect property interest in job, Art. 1, Section | (p. x), and the

United State Constitutional rights to property and due process,

fourteenth amendment (p. ix). Her employer and specific individual

county government defendant's who made these decisions violated

the American's with Disabilities Act (p. vii-ix), and the Calif. Gov.

Code § 12940 (p.xiii) — 12965, refusing to discuss accommodation or

provide accommodation after Petitioner had requested

accommodation (a non-toxic, off-site workplace to accommodate

now chemically disabled worker, accommodation they had made to

others within her classification who had no disabilities but simply a

desire to work by connected computer). County defendants violated

Petitioner's freedom, privacy, and due process rights to notice of

application of restricted pesticides under the due process clause

(Fourteenth Amendment (p. ix) of the United States Constitution as

interpreted by California statutes (Calif. Civil Code 52.1 (b), p. x).

and violated the California Constitution through specific enabling

sections Calif. Civil Code 52.1 (b), p. x) and self executing

California Constitutional rights (p. x). The County, the County

Board of Supervisors, Sally Reid, County Executive, and Paul

Sagers, General Services Administration and others maintained

dangerous conditions of property in violation of Calif. Gov. Code §

835 (xii).

The original complaint named several individuals with specific

deliberate, deceptive, and malicious acts which resulted in acute

chemical injury to Petitioner, and specific individuals with deliberate

cover-up and malicious acts by withholding desperately needed,

prescribed, emergency medical care for acute pesticide injuries in

violation of the Labor Code (§ 6409.3. p. vxii) and regulations (Title

3 § 6726, p. vxili) requiring such care. The complaint cited failed

affirmative duty to notice (Proposition 65) and through (Food § Ag,

Code § 12978, p. ivx, and Labor Code § 6408, p. vxii), as well as

personal injury through evidence of negligence for failing to carry

out mandatory duty to notice and exclude from hazard under the

Labor Code and Food & Agriculture Code and regulations.

Petitioner requested actual damages, injunctive relief, including

reinstatement, and punitive damages.

1. HISTORY IN THE DISTRICT COURT

County government, individual county employee and contract

employee wrongdoers [county defendant's], and their contractors

[corporate defendants], removed this state complaint flowing from

toxic cumulative injury —deliberately unnoticed, discrimination, and

cover-up to federal court because it contained Americans with

Disabilities Act, and 42 U.S.C.S. § 1983 (p. vii) based constitutional

causes of action within the context of the state complaint.

Upon County defendant's F.R.C.P. Rule 12 (b), (e) and (f)

motions, members of the Board of Supervisors were dismissed

(Calif. Gov. Code § 820.9 (p. xii) immunity) from charges of

pesticide misuse, contract violations, claims under 42 U.S.C.S 1983

(p. ix), and as proprietary operators of dangerous condition of

property. Calif. Gov. Code § 835 (p. xii).

Individual county employees were dismissed (Calif. Gov.

Code § 820.2, governmental employee immunity, p. xii) from all

causes including: liability for specific individual intentional bad faith

acts including those in direct and surreptitious violation of specific

agreements; for specific California Constitutional violations, for

denial of expert emergency care to a critically injured worker whose

doctor has prescribed such expert emergency care; for intentional

spoliation and deliberate withholding of evidence in Workers

Compensation action by withholding care; and for deliberate

spoliation and deliberate withholding of evidence in action against

pesticide contractors.

Ruling preemption of Worker's Compensation, the County and

Board of Supervisors were dismissed by the district court from the

following causes: personal injury and disability through intentional

sweeping violation of statutes; negligence per se—ultra hazardous

activity; willful creation of dangerous condition of property,

negligence, failure to warn as tort; serious and willful misconduct;

and violation of Calif. Constitutional promises concerning privacy

and freedom, safety, life and health (Art. 1, Section 1, p. xiii).

Determining that plaintiff had not cited a federal statute or

|federal] constitutional provision that protects [California]

Constitutional rights, and asserting constitutional deprivation must be

"under color of state law" the district court dismissed these causes

overlooking that these causes of action were brought under the

California Constitution which does not require that they be "under

color of state law" (Calif. Civil Code § 52.1 (a) and (b), p. xiii) and

they were conducted and covered up under the authority of county

government.

The district court did not address the California Constitutional

causes of action brought under Calif. Civil Code § 52.1. The U. S.

Appeals Court also did not address the California Constitutional

causes of action under the Calif. Civil Code § 52.1, p. xiii.

Ruling that the fraudulent concealment exception could not be

pled as it requires a showing of employers actual knowledge of

Petitioner's injuries, the district court ruled that the fraudulent

concealment exception applied only to employers concealment of

knowledge of injuries, not to other acts such as fraudulently

concealing toxic applications and fraudulently concealing the

relationship of these applications to the known very high cancer rate

in the facility. This district court's test is without fact development.

As to county Defendant's, no window allowing depositions has

opened in the whole time this case has been in the courts. Until

County Defendant's are deposed there is no way to answer what they

knew and when they knew it. It is an unfair burden to make a

plaintiff accountable for what defendant's knew and when they knew

it without allowing discovery.

The court below ruled that Proposition 65, the California voter

sponsored and passed initiative requiring disclosure of the use of

toxic substances does not apply to a county's use of pesticides (in

spite of Gov. Code § 862 (b), p. xi).

The district court dismissed punitive damages (in overlooking

Calif. Gov. Code § 862 (b), p. xi, Calif. Gov. Code § 53298,5. (b), p.

ivx, Calif. Food & Ag. Code § 14003, p. vx, and Calif. Labor Code §

1105, p. vxi).

The district court also ruled that Defendant county pesticide

contractor Applied Pest Management, Inc. and Gregory Clark, were

not subject to 42 U.S.C.S § 1983 as private parties, and dismissed

these defendant's from Constitutional causes of. action.

Petitioner was permitted to restate causes thirteen (whistle-

blower), fourteen (ADA, and State disability discrimination act) and

add her right to sue letters from the California Dept. of Fair

Employment & Housing and from the Justice Department (EEOC)

(Excerpt of record, Volume III, Ex 20, 21 and 22 and CR 55

appended to the First Amended Complaint). Reading plaintiff's

thirteenth and fourteenth claims as if they were both ADA claims

(they were not) the court below dismissed both as accruing before the

effective date of the act due to Petitioner's initial absence for illness

before the effective date saying that Petitioner's absence for illness

started the American's with Disabilities clock [rather than at some

time connected with her employer's response to her requests for

accommodation or with her defacto termination].

The district court inexplicably determined respondent Finn to

be to be petitioner's advisor (though he was the county's advisor at

the time of his acts) and the district court determined in his role as

Petitioner's advisor he was immune from suit for denial of

emergency medical care as prescribed by Petitioner's doctor for acute

toxic injury, acts that took place before there was any action in any

court.

Corporate defendants, Instar Pest Consultant's filed a motion

which was converted to summary judgment motion based on timing

as they were a county contractor more than a year before Petitioner

filed and summary judgment awarded to them by the district court.

The district court judgment appealed from as to the county and

county defendant's included the order January 18, 1994, Appendix 4,

dismissing individual government defendants and dismissing certain

causes of action and the order June 27, 1994, Appendix 5 dismissing

all other causes as to County defendants and Finn (but not as to

Applied Pest Management, Inc. or Gregory Clark. The date of entry

of final Judgment, all parties: September 19, 1994, Appendix 5. The

date of filing appeal to the U. S. Court of Appeals for the Ninth

Circuit: October 17, 1994.

2 HISTORY IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

After case 94-16063 (Instar Pest Consultant's, Inc., corporate

defendant) was fully briefed it was consolidated with 94 16824, the

County, county defendant's, Applied Pest Management and Gregory

Clark case, by the U.S. Court of Appeals for the Ninth Circuit for

hearing.

Petitioner, now retired on very small disability pension, was

graciously assigned a pro bono attorney by appointment of the

Appeals Court, Mr. Christopher Hunter, who filed a Supplemental

Opening Brief as to both pesticide contractors and Gregory Clark,

contractor's agent on behalf of Plaintiff but did not address the

county or county defendant's.

This court provided leave to plaintiff petitioner, pro se to file

an additional Supplemental Brief as to county defendants and Mr

Finn.

The appeals court issued its Memorandum, filed October 26,

1995, affirming in part and reversing in part. The pesticide

contractors with Gregory Clark were reinstated as defendants. Instar

Pest Consultant's, Inc. were reinstated. The County and County

defendants were not reinstated, the subject of this appeal. Petition

for Rehearing was filed December 1, 1995.

This Petition for Writ of Certiorari requests the Supreme Court

review issues with respect to the County and County defendant's in

case 94- 16824, as set forth on page |.

I. INTRODUCTION

1. OUTLINE OF ISSUES PRESENTED FOR CONSIDERAT ION

BY THE SUPREME COURT

a. CONFLICTING CASES MAY INFLUENCE HOLDINGS IN

THIS CASE:

1) |New Cases address effective dates of coverage of the

American's with Disabilities Act (ADA). These cases hold that

coverage of the ADA hinges on the date of official notice of

termination by the employer. They are in conflict with the

Memorandum in this case.

2) New cases address the Due Process Clause,

Constitutional Property rights, and Constitutional liberty interests,

and conflict with holding in this case.

3) |New cases address Governmental employee immunity

and conflict with the holding in this case.

4) The Ninth Circuit decided another case under whistle

blower statutes the same day the Memorandum in this case failed to

recognize whistle blower causes of action.

5) Recent cases further expand wrongful termination where

an employer's conduct contravenes fundamental public policy against

discrimination, as here.

2. FUNDAMENTAL STATE ISSUES IN THE REMOVED

COMPLAINT WERE NOT ADDRESSED IN THE

MEMORANDUM OF THE U. S. COURT OF APPEALS FOR THE

NINTH CIRCUIT:

a. California Government Code §§ 12900-12996 cause of action.

b. California Government Code §§ 53296—53298.5 cause of

action,

b. California Constitutional causes of action.

d. Exceptions to the Worker's Compensation system remedies

3. FACTS IN THE RECORD AND KEY STATUTES MAY

HAVE BEEN OVERLOOKED:

a. Evidence of Compliance with Claims Act was apparently

overlooked.

b. Overlooked California statute aliows union member to

represent herself and thus she has standing with respect to asserting

right to job.

c. Disability from defendant's acts and negligence, coupled with

defendant's tort of repeated trespass should confer standing to request

injunctive relief against future trespass.

4, THE TAKING OF PETITIONER'S JOB UNDER THE

CIRCUMSTANCES IS AGAINST FUNDAMENTAL PUBLIC

POLICY. THE WORKER'S COMPENSATION SYSTEM DOES

NOT HAVE AUTHORITY TO COMPENSATE FOR

PETITIONER'S JOB LOSS OR WAGE LOSS, ONLY FOR A

DISABILITY DEFICIT. SPECIFIC OVERLOOKED CODE

SECTIONS ALLOW FOR RECOVERY OF WAGES AND

RESTORATION OF JOB RIGHTS. IF THE COUNTY IS

DISMISSED FROM ALL CAUSES OF ACTION, THERE IS NO

TRUE REMEDY FOR PETITIONER.

5. SUMMARY OF ARGUMENT

Causes of action for whistle-blowing discrimination, disability

discrimination, California Constitutional violations, and wrongful

defacto discharge should be reviewed as they conflict with cases

from other appellate districts. California statutes were overlooked in

the U. S. Court of Appeals Memorandum. The loss of Petitioner's

job under these adverse circumstances of this case is against

fundamental public policy. Petitioner met her filing requirements

and deadlines and stated her causes of action and should have a

means to be made whole as to the county and county defendant's.

Without a way to achieve restoration of County Defendant's, the

losses County Defendant's caused including the loss of Petitioner's

employment, wages and benefits unfairly stand without recourse.

This outcome is against established public policy and against all

fairness, and should and can be reversed.

J. ARGUMENT

I. ACCRUAL OF CAUSE OF ACTION UNDER AMERICAN'S

WITH DISABILITIES ACT WAS DETERMINED BY THE

WRONG TEST—DATE OF ONSET OF DISABILITY. THIS

INCORRECT TEST IS IN CONFLICT WITH THE ACT, WITH

THE PURPOSES OF THE ACT, AND IN CONFLICT WITH

NEWLY DEVELOPING FEDERAL APPELLATE CASE LAW.

a There is no case unless and until there is a "qualified person

with a disability." (ADA , 42 U.S.C.S. §§ 12111 (8). and 12131 (2)

(pp. Xi, Xi1)

In this case, Petitioner was not a "qualified person with a

disability" (able to resume work) until her doctor released her for

half time work August 10, 1992, when she made her first request for

accommodation. This was after the last sections of the ADA took

effect, the portions covering all employers—July 26, 1992 (p. vii-

viii). The act took effect for public agencies six months earlier on

January 26, 1992 (p. viii, ix). Thus for the purposes of the ADA

claims, all hheapunliante acts of discrimination took place after the

act was fully in effect.

b. There is no case unless and until a request for accommodation

is made. There is no case unless the employer responds to requests

for accommodation with discriminatory acts.

Petitioner requested accommodation in the first instance

August 10, 1992 (CR 55, p. 23). This request was met by her

employer with a mailed form dated September 9, 1992 declaring she

had been placed on a one year (unrequested), unpaid leave (CR 55,

p. 23-24). As the end of this leave approached Petitioner requested,

through her union, to meet and confer to discuss accommodation for

her return to work. The county refused to meet and confer (CR 55, p.

24) resulting in defacto dismissal.

C. Accrual of a claim under the ADA follows realized damages

(losses from discrimination). These are factual questions.

Accrued losses under the ADA in this case depends upon a

finding of the timing, nature and extent of Petitioner's exclusion from

work, and a finding of her ability to work. The tests would in most

cases require personal testimony, some require expert opinion, and

some require examination of records. These are factual tests. For

example, as there was no hearing or notice of termination, when did

defacto termination occur in this case? Was it at the beginning of

plaintiff/petitioner's paid sick leave (the time determined in the

courts below)? Or was defacto termination at one of the following

later times: 1) at the time Petitioner went off paid sick leave

following her disabling injuries and onto the month of requested,

approved, unpaid, sick leave, 2) at the start, or at the anniversary of

the year of unpaid, unrequested medical leave, 3) at the end of the

year of unpaid leave, at the time of first refusal, or at the time of last

refusal to meet and confer to determine accommodation necessary

for Petitioner to resume work, 4) at the beginning date of Petitioner's

disability retirement, retirement made necessary by loss of salary, 5)

at the actual date of the last paycheck more than a year after the

initial failure to accommodate, or 6) or was defacto termination at the

beginning of disability retirement?

The tests of discrimination on the part of the employer

involves factual questions such as the reasonableness of the

requested accommodation and the reasonableness of the response to

request for accommodation. In this case the test of discrimination

also involves factual questions such as the rational for keeping the

office workplace in a continually toxic state, the allowance of others

without disability to work off-site by connected computer, and the

timing, nature and extent of employer's response if any.

A cause of action ripens when there is damage, and if more

than one instance of damage, at some point along the trail of damage.

Claims under the American's with Disabilities Act (ADA) 42

U.S.C.S § 12111-12131 et. seq. ripen at some point when

discriminatory acts taken in violation of the act, or obligations under

the act not taken, result in losses of a job, wages, benefits or other

losses.

d. Recent Cases in the Second Circuit Address Effective Dates of

the ADA, Coverage of the ADA, and Whether Coverage is a

Question of Law or Fact.

Smith v. United Parcel Service of America, Inc. 65 F.3d 266

(2nd Cir. September 8, 1995) is in conflict with the ruling in this

case.

The Appellate Court's Memorandum siates: “The District

court found that Jensen could not file a claim under the American's

with Disabilities Act, 42 U.S.C.S. §§ 12101—12213, ("ADA")

because the ADA, which is not retroactive, took effect on July 26,

1992, and Jensen stopped work on July 1, 1992. . . . Jensen

stopped work prior to the ADA's effective date. Thus, we affirm the

district court's finding."

The Second Circuit addressed this issue directly September 8,

1995 in a case published days before this ruling. “Limitations period

for bringing claim under Americans with Disabilities Act begins to

run on date employee receives definite notice of termination

representing employer's official position.” /d. (Emphasis added.)

Thus. effective notice of termination is required to begin the tolling

period. No such employer notice is found in the record of Jensen v.

Santa Clara County as there was none.

The Second Circuit also addressed whether effective dates and

coverage of the Act are questions of law or fact: "Fact question as to

whether employer's statements to employee constituted definite

notice of termination representing employer's official position, as

would commence running of limitations period for American's with

Disabilities Act claims, precluding summary judgment." /d. In

Smith (1) the acts of the employer and thus coverage of the ADA,

and (2) establishing fact of date of notice of termination is for a jury.

The employee Smith was disabled from 1988, alleged non

accommodation by his employer from that time forward, and was

eventually terminated. His last day of work was May 27, 1992,

before the ADA went into effect for private employers. Coverage of

the Act hinged on date of actual, official notice of termination, not

date of onset of disability or last date present at work. Summary

judgment in favor of his employer was vacated and the case

remanded for a jury trial by the Second Circuit, setting precedent on

the above issues.

In Jensen v. Santa Clara County, Jensen's last day was June 30,

1992 but she did not know this was to be her last day. Instead she

was given one month requested unpaid medical leave and then put on

a year's unpaid and unrequested medical leave. The county refused

to meet & confer at the approaching end of the leave. No letter of

termination was ever received. Almost a year and a half later,

Petitioner had to retire on disability in order to establish a small

income. She received her final check (with a year's gap in pay)

almost a year and a half after her last work day. (Excerpt of Record,

Vol.I, Ex. 6, pp 22-24 (CR 55)) Here all defendant's discriminatory

acts which fall within the scope of the ADA, the one year

unrequested and unpaid medical leave, the outright refusal to meet

and confer, and the defacto termination took place after the effective

date of the ADA for public agencies (Jan. 26, 1992) and for

employers in general (July 26, 1992). The ADA does not provide

remedy for the workplace injury and disability itself, only for

discrimination on the part of the employer after disability.

The U.S. Court of Appeals Court memorandum cited Burfield

v. Brown, Moore, Flint, Inc., 51 F.3d 583, 588 (Sth Cir. 1995). This

case too hinges on determination of the date of actual notice of

dismissal. Thus both cases here cited, though decided differently on

the facts, determined coverage of the ADA from the actual notice of

termination.

S Due Process is Required Before Termination.

Without meet and confer process, hearing of any kind, or

notice Petitioner was terminated. “Where protected interests in

public employment are at stake, predetermination hearing is required

by due process clause ...." Cronin v. Town of Amesbury, U.S.C.S.

Constitutional Amendment 14. 895 F.Supp. 375, 376, July 25, 1995.

"Due Process Clause requires that public employee's post term

hearing be held at a meaningful time." U.S.C.S. Const. Amend. 14.

Cronin, Op Cite at 376.

f. It is an Abuse of Discretion for a Judge to Assuming the

Fact Finding Role of the EEOC in the First Instance and the

Jury and the Last.

When Congress has set up a particular administrative

process preliminary t» the court process, as in the case of the

American's with Disabilities Act, and the agency assigned, the

EEOC in this case, has been assigned a specific fact finding

role and has found elements of discrimination, defacto

termination, and timeliness, and has issued a right to sue letter

following their investigation, can a federal judge, who has not

conducted an investigation and himself is not assigned a fact

finding role, rule "failure to state a claim" on timeliness, as

here?

In summary, as to the ADA causes of action in Jensen v. Santa

Clara County there was no pre or post termination hearing or notice.

lhe County's discriminatory acts, refusal to meet and confer, refusal

to discuss accommodation, the defacto taking of Petitioner's job, all

fell within the effective date of the Act. The EEOC Right to Sue

Letter (Excerpt of Record, Vol. Ill, Ex. 21 (CR 55)) presents a new

deadline. This deadline was met with the filing of the First Amended

Complaint February 24, 1994 (Excerpt of Record, Vol. 1, Ex. 6, CR

55.) Thus Petitioner requests the Court rehear and reverse the ADA

ruling in accord with Smith, Op. Cite, Cronin, Op. Cite, and Badih,

Op. Cite., and the Appellate court's own citation, Burfield v. Brown,

Moore, Flint, Inc., Op. Cite, (on principle).

2. It is an Abuse of Discretion to Overlook the Claims Made

Under the Statutes and California Established Policies for A

Removed Case.

a. An action for wages is allowed in California, as is a tort action

for loss of employment wnen the loss contravenes established

fundamental public policy.

In California "|a]n employee is entitled to maintain such a tort

action [or employment contract action] "where an employer's

discharge of |the] employee contravenes the dictates of fundamental

public policy. [Citations]" Badih v. Myers, Cal.Rptr.2d 229, 231

(Cal.App. | Dist. July 20, 1995), building on Rojo v. Kliger (1990)

52 Cal.3d 65, 89, 276 Cal.Rptr. 130, 801 P.2d 373. Fundamental

public policy is clearly established by the American's with

Disabilities Act, 42 U.S.C.S § 12101, purpose (p. xi), and the similar

state Gov. Code §§ 12940, (p. xvii), prohibiting employment

discrimination against disabled persons. Fundamental public policy

is clearly established to protect whistle blowing activity by Calif.

Government Code § 53296-53298.5, Calif. Labor Code §§ 1102.5-

1105, and 6310.

Employer may be held liable in tort for terminating an

otherwise “at will" employee if the termination violates public

policy, since otherwise the threat of discharge could be used to

coerce wrongdoing, or taking other action harmful to the public weal;

... Nagy v. Whittlesey Automotive Group (1995 Cal App 4th Dist.)

47 Cal.Rptr.2d 395.

b. Petitioner's right to proceed under California Government

Code § 12940 cause of action was not addressed in the memorandum

or order of either court below.

As to the state discrimination claims, Calif. Gov. Code §

12940 (p. xvii) was in full effect at all times during the

discrimination of the county. The Calif. Department of Fair

Employment and Housing issued a right-to-sue letter dated January

26, 1994. The First Amended Complaint is dated February 24, 1994.

This State act was in effect and covers discrimination for

disability before the ADA came into effect. It contains a one year

statute with allowance for additional time up to three months when

needed. Petitioner's complaint relating to discrimination by defacto

termination for disability, and all processes and filing deadlines were

met in the first Amended Complaint. Remedies under this section

are non exclusive remedies. The right to proceed under these

sections is a right of all Californians who have experienced such

discrimination (except here).

3. CONSTITUTIONAL CAUSES OF ACTION:

When government and governmental actors step outside of

their proper role and instead violate the very statutes they have

responsibility to enforce, and where these violations cause Petitioner

damaging loss of personal bodily privacy, and where these violations

cause loss of the right to defend life and liberty and obtain safety,

California Constitutional rights are properly alleged whether or not

federal statutes and the federal constitution are cited as well or

separately. California Constitutional rights and U. S. Constitutional

rights under the California Civil Code § 52.1 (b)

a. Immunity statutes and Worker's Compensation may not bar

action under Civil Code § 52.1, this act a newer. separate, and

specific remedy.

Where county government and certain employees are

responsible to protect persons from the unnoticed exposure to toxic

substances by enforcement of notice and duty to care in the use of

toxic substances, these requirements firmly part of the Calif. Food &

Agriculture Code §§ 12977, 12978, 12982, 12985, 12991, 14002.

14003, 14011, (p. xix-xxi), Labor Code §§ 6400-6408 (p. xxiii), and

Calif. Code of Regulations, Title 3 § 6618, p. xxiii, and where these

county defendants/respondents instead concealed their actions and

caused illegally mixed toxic substances to be applied without notice

in the workplace and public building during working hours, injuring

workers including petitioner, and where, after county defendants

knowingly made persons ill, they then stepped up their reckless and

negligent applications on the same day persons were injured, known

to be injured, and they continued these unnoticed, negligent acts for

another two weeks, in violation of duty to care and duty to enforce

those same statutes, and in violation of an explicit meet and confer

bargain, and where Petitioner's is disabled by these acts, Petitioner's

constitutional rights were violated.

These facts are set forth in Plaintiff's Complaint and First

Amended Complaint,. California self executing Constitutional

sections are stated. Acts in violation of these sections are stated, and

implementing California Civil Code Sections are stated in

Petitioner's Complaint.

Petitioner stated a cause of action for violations of the State

Constitutional right to physical privacy and the Constitutional right

to protect her health through the California Constitution and

California Civil Code § 52.1. “Rights guaranteed by this

Constitution are not dependent on those guaranteed by the United

States Constitution."--Article 1, § 24, California Constitution (p.

xiii).

The unnoticed and deliberate use of substances which have

been declared by the State of California to be chemicals little

understood but suspected to be extremely hazardous to people and

listed for that reason in the Calif. Code of Regulations, Title 3 §

6198.5, as here, is nothing short of chemical experimentation of

unwitting people, and reckless endangerment. The chemicals that

were routinely used are found on this list. They are breathed in and

absorbed through the skin and be cannot be fully removed nor their

effects be avoided by a person in a workplace setting. This is an

insidious coercive invasion of privacy, as insidious as surreptitious

drugging of any other type.

There is overriding public purpose in protecting the privacy

of one's body from another's broadcast use of toxic substances--an

overriding public purpose in upholding a privacy right to not be

placed in a position where the body will unknowingly absorb toxins.

California statutes and regulations are intended to provide protection

for this very interest. However when public agencies themselves,

who have obligations to uphold this interest are themselves

deliberately violating the statutes and regulations and surreptitiously

causing exposure to restricted toxins, and endangering the life and

health of employees and the public in the process, Constitutional

causes of action should be a recourse.

"The right of privacy is expressly protected under Cal.

Const., art 1 § 1. In re Duncan (1987, 2nd Dist.) 189 Cal.App.3d

1348, 234 Cal.Rptr 877. Statutory provisions limiting Medi-Cal

funding for abortions undermine the right of privacy guaranteed

under Cal. Const., art I § 1, in that they threaten not only a woman's

interests in life, health, and personal bodily autonomy, but also her

right to decide for herself whether to parent a child. Committee to

Defend Reproductive Rights v. Myers (1981) 29 C3d 252, 172

Cal.Rptr 866, 625 P.2d 779, 20 ALR4th 1118. Thus California

Constitutional privacy involves both the physical "self" (physical

autonomy) and the autonomy of personal choice in the status and

risk taking of the body. With cr ae toxic application those

choices are not available and physical autonomy is taken.

b. _ California Constitutional causes of action were not addressed

by either court below. The language of the Cause of Action titles

and text of the complaint was overlooked,—an abuse of judicial

discretion.

The Appeals Court's Memorandum: “The district court

correctly determined that Jensen has not cited to any constitutional or

statutory provision which has been violated. Her claimed freedoms

to eat, work, read, embrace one's children, and be free from puzzling

illness, while desirable, are not protected by any federal statutory or

eS:

constitutional provisions." Jensen v. Santa Clara County,

Memorandum at 5. (Emphasis added) Jensen claimed through

California State Constitution and California statutes that clearly set

forth the right of Californians to privacy, liberty, substantive due

process, freedom not to be foreclosed from work (liberty rights),

eared seniority in her work (property rights), actual freedom from

coercive invasion of her body by toxic substances (freedom and

privacy), Excerpt of Record, Ex. 6, pp 18-20, CR 55, and CR 1,

Complaint and First Amended Complaint.

Cc. California Civil Code § 52.1(b) is intended to ensure these

rights, separate and apart from all other statutes and claims.

This case was filed in state court and removed by defendant's.

The Court of Appeal's Memorandum does not address the California

Constitutional rights taken. Thus Plaintiff requests the Supreme

Court review and address the obligation of the federal court in a

removed case to either address state constitutional issues or to return

the state issues to state court.

If the federal court does not recognize the California

Constitution or statutes defendant's can, with a single act of removal

to federal court, take away the California Constitutional rights of a

plaintiff, who dares to assert a federal cause of action. The U.S.

Constitution Article III, conferring the powers on the federal courts,

does not give such broad and sweeping power to nullify state

constitutions and laws to federal courts.

If the federal court system wished to ignore a state's

Constitution and laws, the federal court should have returned the case

to the state forum in which it had been filed, or at least returned those

parts which arise from state Constitution and acts.

d. Cases in conflict with this decision set forth Due Process

Fourteenth Amendment Rights in Employment.

Petitioner was ordered by the district court to remove federal

constitutional causes from her original Complaint. This removal is

not in accord with new cases. New case law directly addresses Due

Process rights under the Fourteenth Amendment: "Due process

clause requires that public employee's post termination hearing be

held at a meaningful time." Cronin, Op. Cite., 376. In Jensen v.

Santa Clara County there was no post termination hearing. There is a

Due Process Fourteenth Amendment right implicated in the taking of

a person's job without hearing, and a right to "work" at one's job, at

the least a Due Process right not to have one's job taken without

notice, hearing, or just cause, /d. Cotnour v. University of Me. Sys.

(1994, CA | Me) 35 F 3d 6 reiterates the right to an explanation of

the evidence against a tenured professor and a right to a termination

hearing.

e. _ Constitutional property rights in one's job arise in various ways

and in this case there is a property interest arising from civil service

seniority.

There is a "protected property interest" in one's job and it's

taking without hearing or cause, Cronin, Id. “First, because he can

only be dismissed for just cause pursuant to Mass.Gen.L ch.31 § 41,

Cronin has a protected property interest in continued employment."

Cronin, Op. Cite., 383, citing Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548

(1972). Just as Cronin had a protected property interest in his

employment (requiring due process protection), Jensen had seniority

in her civil service job and thus a property interest requiring due

process protection. Property rights are protected under 42 USCS §

1983 and § 1343 (3) and can be redressed by suit. Hofferber v. First

Nat. Bank (1977, WD Okla) 437 FSupp 788.

f. Where a governmental employer disables a worker by a long

series of surreptitious wrongful acts, and then terminates the worker

who has been made otherwise unemployable by imposed

uninsurability and imposed physical limitations, constitutional liberty

interest is infringed.

"|Glovernment employee's liberty interest would be implicated

if he were dismissed based on charges that imposed on him a stigma

or other disability that foreclosed his freedom to take advantage of

other employment opportunities." Cronin, Op. Cite, 383, citing

Roth, 408 U.S. at 573, 92 $.Ct. at 2707. This is exactly the case here.

Jensen was dismissed, defacto, and her physical limitations, illegally

imposed on her by County defendant's through their Due Process

deliberate due process violations (statutory notice violations),

foreclose Petitioner's freedom to take advantage of other employment

opportunities as she is virtually uninsurable and now unable to

undergo a daily risk of exposure. Liberty interest is a federal and

state constitutional issue, and was set forth in Plaintiff's complaint

(through 42 U.S.C A. §1983). (CR 1, and Excerpt of Record, Vol. II,

Ex. 20, pp 18-20, CR 55.) See pp. xii for the development of liberty

and freedom rights starting with the Declaration of Independence, the

Preamble to the Constitution, and assured by the fifth, fourteenth

amendments and woven as a dominant thread through the whole of

the amendments.

4. CALIFORNIA GOVERNMENTAL EMPLOYEE

IMMUNITY IS A QUALIFIED IMMUNITY AND DOES NOT

PROTECT GOVERNMENTAL EMPLOYEES WHO

KNOWINGLY BREAK THE LAW, THOSE WHO VIOLATE THE

CALIF. CONSTITUTION, THOSE WHO COMMIT TORTS, AND

If DOES NOT PROTECT EMPLOYEES WITH IMMUNITY

WHERE THE GOVERNMENTAL AGENCY ITSELF IS NOT

IMMUNE.

a. Cases Addressing Parameters of Governmental Employee

Immunity Conflict with the Determinations of the Courts Below.

The Memorandum of the U. S. Court of Appeals for the Ninth

Circuit: "The eight named public employees are immune from

liability for actions taken within the scope of their employment,"

citing Government Code § 820.9. (p. xvi)

"Qualified immunity protects all government officials but the

plainly incompetent or those who knowingly violated law or those

who act where law clearly proscribed the actions taken." Cronin v.

Town of Amesbury, 895 F.Supp 375, 377. (Emphasis added.)

Petitioner pled violations of California laws Food & Ag. Code §

12978, and 14011 (p. xix-xxi), Labor Code §§ 1105, and 6310 (p.

xxi), Gov. Code § 862 (p. xvi) which clearly places pesticide misuse

outside of the protection of Gov. Code § 820.9 and § 12940, for

which there is no governmental immunity, and the American's with

Disabilities Act, 42 U.S.C.S. 1201-12133, (p. xi), for which there is

no state or local governmental immunity — statutes deliberately,

repeatedly violated by County defendant's. She pled specific and

repeated actions of County defendant's clearly proscribed by law.

She pled violations of her Fourteenth Amendment due process right

over 14 years to receive actual and constructive notice of exposure to

hazardous substances from defendants. She pled that when she (and

other employees) became ill from these activities certain county

defendant's (Washington, Tokushigi, Claus), instead of ceasing them,

deliberately stepped them up. She pled when emergency medical

treatment was medically prescribed, instead of providing it according

to code and Regulation, it was withheld (defendants Finn and

Elizondo). (See Complaint, Excerpt of Record, Ex . 6, p. 27 (CR

55).)

Unlike Cronin, Op. Cite. where Cronin had some role in the

action against him, Jensen had no role. She was repeatedly

unknowingly placed in harms way due to absence of notice—Due

Process violations of law and Constitutional protections. (Excerpt of

Record, Ex. 6, CR 55). The protection of law was denied Plaintiff by

the very Government and Government employees in charge of

enforcement of the law (Wasenhove, Santa Clara Board of

Supervisors, and supervisors McKenna, Lofgren, Gonzales, Diridon,

Honda). Administrative remedies and assistance by agencies set up

to enforce the laws relating to toxic substances could not be enlisted

until knowledge of the illegal activities was discovered, long after it

was too late. Petitioner, who tried and thought she had carried out

her responsibilities for reporting, instead became the subject of a

District Attorney investigation for reporting violations. (Excerpt of

Record Ex. 6, p. 22-24, CR 55.) Defendants/Respondents clearly fall

under Cronin, Op. Cite., and within the exception of Calif. Gov.

Code § 820.8 (p. xvi) and thus should not be immune. Plaintiff

requests the Supreme Court consider the lower courts’ immunity

findings in light of Cronin, Op. Cite.

b. Statutory Exceptions to Public Agency Immunity

Governmental immunity for dangerous conditions of

property is provided by statute and exceptions to immunity are

also by statute (Calif. Gov. Code § 835) (p. xvi). Calif. Gov.

Code § 862 (b) (p. xvi) specifies no governmental immunity

for a public entities use of pesticides: "A public entity is liable

for injuries caused by its use of a pesticide to the same extent

as a private person..." [Emphasis added] The Law Revision

Commission Comment thereon (West): "(S)ubdivision (b)

makes clear that the standard of liability applicable to private

persons applies equally to the public entities." It is straight

forward. Public entities are not immune under Calif.

Government Code § 815 (p. xvi) for the elements of

petitioner's complaint that involve pesticide misuse, noticing,

and responsibilities following or resulting from pesticide use.

If the entities themselves are not immune can the employees

responsible be immune?

Furthermore Calif. Gov. Code § 815.6 (p. xvi)

provides that where a public entity is under mandatory duty by

an enactment to protect against particular types of injury (as

here), it is liable for failure to discharge this mandatory duty.

Section 815.6 "takes precedence over Calif. Gov. Code §

818.4 providing immunity for discretionary acts as

distinguished from ministerial acts or non discretionary acts."

Caplis v. Monterey County (1979) 158 Cal.Rptr. 395, 97

C.A.3d 249. Whether a condition is dangerous and whether

the failure to warn of the danger is proximate cause of injury

are primarily questions of fact. Buchanan v. City of Newport

Beach (1975) 123 Cal.Rptr. 338, 50 C.A.3d 221.

As there is liability for taking plaintiff's job, "Doctrine

of governmental immunity for misrepresentation does not

apply to contract action. Lundeen Coating Corp. v.

Department of Water and Power of City of Los Angeles

(App.2 Dist.1991) 283 Cal.Rptr. 551, 232 Cal.App.3d 816,

rehearing denied, review denied."

ae Members of the Board of Supervisors and other county

defendants are not exempt from liability for their acts.

Calif. Gov. Code § 835 provides public entities and

employees are liable for wrongful acts or omissions in creating

dangerous conditions of public property.

Board of Supervisors and individual Board defendants

were not sued vicariously. They were named for specific acts

and omission--setting instances of unnoticed toxic use in

motion (Tokushige, Washington, Claus, Sagers, the Board of

Supervisors, Reid); and for approving a panoply of illegal acts

including but not limited to fraudulent concealment of toxic

conditions and the damages toxic conditions were causing

county workers as a whole (Sagers, Reid, Does); employment

discrimination against worker injured by the hazardous

conditions who blew the whistle on the hazardous conditions

(Board of Supervisors, supervisors McKenna, Lofgren,

Gonzales, Diridon, Honda, Co. Exec. Reid, Dept. Head

Franklin); defacto termination of disabled worker (the County,

Reid, Franklin, Does), failure to take timely corrective actions

after notice of injuries (County Board of Supervisors,

supervisors McKenna, Lofgren, Gonzales, Diridon, Honda, Co.

Exec. Reid, Ag. Commissioner Wasenhove, G.S.A's Sagers,

Tokushige, Washington, Claus); constitutional violations (the

County, County Board of Supervisors, supervisors McKenna,

Lofgren, Gonzales, Diridon, Honda, Co. Exec. Reid, G.S.A's

Sagers, Tokushige, Washington, Claus), and other specific

wrongs and omissions as spelled out in depth and particulars in

Petitioner's complaint.

Certain county defendants were named as indispensable

parties (Franklin, Department head; Reid, Co. Exec.) in the

employment discrimination for disability causes of action.

The nature of the decisions by named county employees

and Board members, how to conduct maintenance of county

facilities, whether to adhere to the requirements of the state

Constitution, statute, code, and contract in treatment of an

employee, are ministerial, not discretionary, and thus are not

exempt under Calif. Gov. Code § 820.2 (p. xvi) which exempts

only discretionary decisions. Furthermore acts whether

supervisory, oversight, or the acts themselves which violate the

constitution, statute or regulation, as here, cannot be termed

discretionary or within the scope of public employment for the

purposes of Calif. Gov. Code § 820.2 as violation of the

Constitution, statutes or regulations is never a discretionary act

and no public employee is hired to break the law or violate

constitutional rights, indeed they take an oath not to do so.

Thus neither code sections cited (Calif. Gov. Code § 820.2 or

822.2) confer no immunity to county defendants.

Calif. Gov. Code § 862 (b) provides: "A public entity is

liable for injuries caused by its use of a pesticide to the same

extent as a private person . . ." [Emphasis added]. Individual

public officials and employees are as accountable as if they

were privately employed individuals, for injuries caused by

their use of pesticides under this section. This section post

dates the Governmental immunity sections.

immunity of employees is tied to and depends upon

public immunity. Where agencies themselves are not immune

through Calif. Gov. Code § 862 (b) employees are also not

immune.

5. STATE WHISTLE BLOWER CAUSES OF ACTION WERE

NOT ADDRESSED BY THE COURTS BELOW.

a The Memorandum of the Ninth Circuit Did Not Address

Whistle blower California Labor Code § 1102.5 et seq. (p. xxi)

Causes of Action or Government Code §§ 53296-53298.5 (b) (p.

xvii) Whistle blower Causes of Action.

b. There is an apparent conflict within the U. S. Court of Appeals

for the Ninth Circuit on the principles of this case.

On the same day this case decision was filed, the Ninth Circuit

determined in an action for retaliatory discharge, that whistle

blowing activities by public employees involved issues of material

fact. Clements V. Airport Authority of Washoe County, U.S.C.S. 9th.

No. 93- 16693, October 26, 1995, by Reinhardt, J. In that case there

had been a grievance procedure and an administrative hearing in

which there was testimony and a ruling for plaintiff's. The ruling

was appealed to the district court. The district court granted

summary judgment to defendant's. On the facts, the U. S. Court of

Appeals for the Ninth Circuit recognized whistle blowing complaint

as fact based and ruled the action for whistle blowing could go

forward.

The California Supreme Court has not only recognized whistle

blowing actions but has held that discrimination against whistle

blowing employees is contrary to public policy. Sanchez y.

Unemployment Ins. Appr. Bd. (1984) 36 Cal.3d 575, 588, 205

Cal.Rptr. 501, 685 P.2d 61 (Labor Code §§ 1102.5 (a) & (b) (p. xxi).

Even where the requirements of the whistle blowing statute are not

met to the letter, the California courts have considered these defacto

retaliatory termination cases as tort, common law and contract

actions according to their facts and pleadings because of the

important public policy issues.

The California Labor Code § 1105 allows action for damages

in whistle blowing cases: "Employee's action for damages Nothing

in this chapter shall prevent the injured employee from recovering

damages from his employer for injury suffered in violation of this

chapter." Both of the Courts below have declined to address whistle

blowing Cause of Action.

a New Cases, including those against public agencies, allow a

fort action even without exact coverage of whistle blower statutes.

but here an employer's actions contravene fundamental public policy

with no recourse.

An employee is entitled to maintain such a tort action "Where

an employer's discharge of [the] employee contravenes the dictates of

fundamental public policy. |Citations]" Badih v. Myers, Cal.Rptr.2d

229, 231 (Cal.App. 1 Dist. July 20, 1995), citing Rojo v. Klinger

(1990) 52 Cai.3d 65, 89, 276 Cal.Rptr. 130, 801 P.2d 373. Public

policy is established in the California Codes--Calif. Labor Code §

1102.5 et. seq. and Gov. Code §§ 53296-53298. 5 (b) declaring firmly

against retaliation for whistle blowing. Badih travels a developing

path of cases going back at least to Greene v. Hawaiian Dredging

Co. (1945) 22 Cal.2d 245, 157 P.2d 367. and Tameny v. Atlantic

Richfield Co., (1980) 27 Cal.3d 167, 178, 164 Cal.Rptr 839, 610 P.2d

1330, Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 699.

6, RETALIATORY DISCHARGE IS WITHOUT RECOURSE

WITHIN THE WORKER'S COMPENSATION SYSTEM.

The taking of Plaintiff's job under the circumstances of this

case is against fundamental public policy. The Worker's

Compensation Board does not have authority to reverse the loss of

plaintiff's job, only to provide compensation for her disability deficit.

Labor Code under the Labor Commissioner (§ 98.7) (p. vxiii), can

act to recover wages if the scope of the losses become apparent in 30

days, the Commissioner cannot restore a job. The section allows an

action for damages as an alternative to the administrative process

provided there. These processes, and the complaints they allow are

outside the Worker's Compensation system and have an entirely

different purpose. With dismissal from the County work force there

is no true remedy for this job loss as promised by many Codes,

rulings, and constitutional amendments, that have here been cited,

these promises apparently a cruel myth.

Further "[w]Jhen a defendant has breached a duty arising out of

the [workplace] contract, rather than merely a promise set forth in the

contract, the plaintiff is entitled to tort relief" for wrongful discharge

cases. Glenn y. Clearman's Golden Cock Inn (1961) 192 Cal.App.2d

793, 797.

Even within the Labor Code Worker's Compensation is

not the Exclusive Remedy.

All portions of the Labor Code are not subject to the Worker's

Compensation system. The Labor Commission investigates wage

and dismissal cases if the issues sort out within 30 days, but these

cases may also be filed in directly in court. (See Labor Code § 98.7,

(p. xxiii) Ex 60, Ex 2, "remedy not exclusive", also see § 6311, (p.

xxi) Ex. 3 allowing "Right of action for wages.".)

7. PETITIONER COMPLIED WITH CALIFORNIA

GOVERNMENT CODE § 911.2 REQUIRING CLAIMS TO BE

FILED WITHIN SIX MONTHS.

Evidence of Compliance with Claims Act was Missed. (See

Memorandum footnote page 4.)

Defendant's at the appellate stage raised a new issue. See Ex.

of Record, Vol. III, Ex 23, CR 55, Exhibits, showing Claims were

timely filed in compliance with the Calif. Claims Act (Calif. Gov.

Code § 800 et. seq.) Also see County Board of Supervisor's date

stamp, Ex. of Record, Vol III, Ex. 23. Claims were filed in

compliance with requirements prior to filing the Complaint and all

claims were amended to and incorporated in the Complaint as filed

and the First Amended Complaint.

8. PETITIONER HAS STANDING TO ASSERT HER RIGHTS

TO HER JOB AND WAGES THROUGH THE GOVERNMENT

CODE.

California Government Code § 3503 Was Overlooked in the court's

below.

Calif. Gov. Code § 3503 (p. xvii), speaks to the right of unions

to represent their members, but "Nothing in this section shall prohibit

any employee from appearing in his own behalf in his employment

relations with the public agency." The union is permitted to

represent members but union members retain right to represent

themselves. Plaintiff's union did represent her in the lengthy

attempts to arrange a meet and confer session with defendant's. (Ex.

of Record, Ex. 6, p. 24 (CR 55)).

9. PETITIONER SHOULD HAVE STANDING TO ASSERT

AND ACTION AGAINST TRESPASSER TO SECURE THE

SAFETY OF HER PROPERTY, FREEDOM FROM

HARASSMENT AND FREEDOM FROM ACTUAL DAMAGING

TRESPASS.

Trespass and harassment are torts (Prosser and Keeton, Second

Restatement) and may also be criminal activities when toxins are

spread, as here. The essence of this cause of action was missed.

Petitioner's cause of action was brought to stop County employees

from further trespass upon her property, as they have trespassed two

times and spread toxic materials without notice. Petitioner sought to

(1) assure the safety and security of her home environment for her

own physical needs, to (2) stop the trespass upon the property of a

person already subjected to and disabled by workplace toxic

exposure by the same agency (GSA, Sagers) and (3) assert her own

right to fulfill her responsibility to assure safety to others who may

enter into her environment. Jensen should have the standing in the

state courts where this action was filed to protect the natural living

creatures, including children, who come upon on her land and to

protect her home and land from the unnoticed application of toxic

materials.

10. PUNITIVE DAMAGES SHOULD BE ALLOWED FOR

SUCH DAMAGING ACTS.

For violation of whistle blower statutes, discrimination, and

other violations of law punitive damages are allowed. Watson v.

Department of Rehabilitation (App. 2 Dist. 1989) 261 Cal.Rptr. 204,

212, Cal App.3d 1271, and should be allowed in this case where

violations are such a flagrant abuse of power and damages so great.

Otherwise the county and county actors, and the County's contractors

have less incentive to comply with the law.

CONCLUSION AND RELIEF SOUGHT

Plaintiff hereby requests that the United States Supreme

Court hear the County and County defendant issues in this case on

the points described above and review the interpretations of law,

findings and conclusions as to Santa Clara County and County

individual defendant's in this case.

Respectfully submitted FEBRUARY ___, 1996

By:

CHERIEL JENSEN

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.