APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed. (Super. Ct. No. SCVSS146864).
The opinion of the court was delivered by: Gaut J.
CERTIFIED FOR PUBLICATION
This appeal concerns the proper method for calculating leave deductions for 73 days of missed work for an injured school bus driver, Donna Haynes. A classified school employee is entitled to receive several kinds of compensation and leave when injured or ill: workers' compensation benefits (Lab. Code, § 4653); 60 days of industrial and illness leave (§ 45192); sick leave (§ 45191); vacation leave (§ 45197); and a form of leave called "differential leave." (§ 45196.) Under the so-called 100-day rule of section 45196, in addition to other forms of leave, an employee is entitled to receive differential leave at half pay for up to 100 days.
The California School Employees Association (CSEA) and Haynes, petitioners and respondents on appeal (petitioners), contend that the Colton Joint Unified School District and the school board (collectively Colton) improperly deducted both vacation leave and differential leave under section 45196 concurrently.
Colton appeals from a judgment granting the writ petition. We agree with petitioners and the superior court that Colton could not deduct vacation leave and differential leave concurrently.
2. Factual and Procedural Background
The facts are generally undisputed except for a slight disagreement about when Haynes received workers' compensation benefits. Haynes was employed as a school bus driver for Colton. On May 10, 2004, she injured her knee. She had surgery on May 31, 2005. She was absent for various periods between May 12, 2005, and July 16, 2006, during which time she received workers' compensation benefits. The CSEA contends Colton, while collecting Haynes's workers' compensation benefits, miscalculated her vacation leave and differential leave.
Two leave periods are at issue. Petitioners do not contest the calculations made for the initial 60 days of industrial and illness leave (§ 45192) between May 12, 2005, and September 11, 2005, or for the leave period between May 31, 2006, and July 14, 2006, when Colton deducted sick leave (§ 45191) of one-third day and differential leave of one day at half-pay.*fn2 (§ 45196.) The two periods for which petitioners do question the deductions are the leave period of 67 work days between September 12 and December 18, 2005, and another six days for the winter school break between December 19 and 30, 2005.
Between September and December 2005, for each of the 67 work days absent, Haynes assigned her workers' compensation benefits of two-thirds of a day's pay to Colton. Colton then deducted one-third of a day of Haynes's accrued vacation, and paid her for one full day. During that time, Haynes had no sick leave. Additionally, Colton deducted differential leave, an additional day at one-half pay under section 45196, meaning that Colton charged Haynes the equivalent of two days of leave while paying Haynes for only one day. Colton's declarant, James Downs, asserted Colton had the right under the collective bargaining agreement, articles 12.2.8 and 12.7.6, to deduct differential leave concurrently while deducting vacation leave and while receiving Haynes's workers' compensation benefits.
The parties disagree about the deductions made for the six days of the December 2005 winter break. In the writ petition and her supporting declaration, Haynes avers that she received two-thirds of her pay in workers' compensation benefits, which she assigned to Colton, and Colton deducted one full vacation day and one day of differential leave, making the amount of deductions two and two-thirds days of leave for each of the six days.
In its opening appellant's brief, Colton contends Haynes did not receive workers' compensation benefits for the six days of winter break because it was a mandatory vacation for employees. Colton asserts it deducted one full vacation day and one day of differential leave for each day. In their respondents' brief, petitioners cite the record to show that Haynes did receive workers' compensation for the six days in December. Colton does not attempt to refute this point.
CSEA and Haynes did not file a grievance under the collective bargaining agreement. Instead, they filed the petition for writ of mandate seeking to compel Colton to recalculate Haynes's leave deductions. Colton demurred on the grounds that petitioners had failed to exhaust their administrative remedies by not pursuing the grievance ...