Burbank has argued Allen's federal lawsuit should be thrown out because he chose to challenge his termination through the city's administrative appeal process, which has not been completed, according to documents filed in U.S. District Court.
In their court filings, attorneys for the city contend Allen's federal action is “premature and should be dismissed,” or stayed until the administrative proceedings are completed.
Claypool argues that while Allen chose the administrative appeal process to challenge his termination, the decision was made almost two years ago and has yet to receive a determination.
“Dismissal of this action will send the incorrect message to government employers that they can intentionally delay an employee's administrative proceeding in order to extinguish an employee's civil case,” Claypool argues in court filings.
There is a futility exception that applies in cases where there has been hostility on the part of the decision-making body, an unreasonable delay in processing the grievance, and inadequacy of remedy, Claypool said.
In the nearly two years that Allen has waited to file his lawsuit, Claypool argued in court filings, the former detective “has had one hearing and has been denied by the city attorney's office the very documents he needs to help him defend himself at his appeal.”
In June 2010, Allen was among 10 officers who were fired when a new command staff came on board following external and internal investigations of alleged civil rights violations and officer misconduct.
U.S. District Court Judge Dolly Gee notified Burbank and Claypool this week that a decision would be made without hearing oral arguments, which were scheduled for Friday in a downtown Los Angeles.
No time frame was given for when a decision may be handed down.