California Court of Appeals, Second District, Eighth Division
Certified for publication Order attached 3/5/14
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC467130, Elihu M. Berle, Judge.
Lackie, Dammeier & McGill, Michael A. McGill and Michael A. Morguess for Plaintiffs and Appellants.
Jones Day, Elwood Lui, Christopher Lovrien, Kerry C. Fowler and Peter E. Davids for Defendants and Respondents.
BIGELOW, P. J.
Plaintiffs David Esparza, Alan Mark, Anthony Mora, and Irene Redd were peace officers employed by the Los Angeles County Office of Public Safety (OPS). The Los Angeles County Board of Supervisors voted to dissolve OPS and merge its functions with that of the Los Angeles County Sheriff’s Department. Plaintiffs each had the opportunity to apply for deputy sheriff positions, but did not meet the Sheriff’s Department’s qualifications. As a result, Plaintiffs were offered lower paying positions with the Sheriff’s Department. Plaintiffs brought suit, alleging they were improperly terminated or demoted. The trial court sustained the demurrer and we affirm.
OPS was formed in 1998 when the County of Los Angeles (County) consolidated the peace officer departments in the Department of Parks and Recreation, the Department of Health Services, and the Department of Internal Services. OPS officers were “limited” purpose peace officers who were tasked with “enforcement of the law in or about properties owned, operated or administered” by the County. (Pen. Code, § 830.31, subd. (a).) OPS officers carried firearms “only if authorized, and under the terms and conditions specified, by their employing agency.” (Ibid.)
In 1998, a class of OPS officers sued the County for racial discrimination in Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805 (Frank). Though the Frank plaintiffs received a jury verdict in their favor, the Court of Appeal found there was insufficient evidence to establish a prima facie case of racial discrimination and overturned the verdict. (Frank, supra, at pp. 820-822.)
In 2009, the County Board of Supervisors voted to merge the OPS with the Sheriff’s Department after consideration of a 2007 feasibility study. The Board of Supervisors voted four to one to adopt the following recommendation:
“For economic reasons, approve the consolidation of the Office of Public Safety (OPS) duties and functions into the Sheriff’s Department and eliminate OPS effective June 30, 2010; direct County Counsel to prepare an ordinance authorizing the consolidation of OPS’ duties and functions; and designate the Sheriff’s Department as the agency responsible for providing all law enforcement and security services within the County; and take the following related actions: (Chief Executive Office, Sheriff’s Department, and Office of Public Safety)
“Approve the Phase II Study of OPS which involves the Sheriff’s Department examining Phase I estimates in greater detail and an evaluation of OPS personnel; “Direct the Acting Director of Personnel to implement a workforce reduction plan consistent with Civil Service Rules and Board policy, based on the elimination of OPS, to absorb existing OPS staff into the recommended budgeted positions in the Sheriff’s proposed plan which includes offering sworn positions in the Sheriff’s Department to qualified County Police Officers; and offering non-sworn positions to County Police Officers who do not qualify for sworn positions;
“Approve an exemption from the County hiring freeze in order that the Sheriff’s Department and other County departments may absorb non-sworn employees, wherever possible, who do not have specific positions identified under the Sheriff’s proposed plan; employees will be placed in the Sheriff’s Department or other County departments on an equivalent or comparable vacant position, wherever possible, contingent on meeting departmental qualifications and standards.”
Plaintiffs brought suit against the County, the Sheriff’s Department, the Los Angeles County Board of Supervisors, and the Los Angeles County Civil Service Commission, alleging that the “vast majority” of OPS officers were terminated or given lower-paying non-sworn jailer positions under a variety of pretexts after the merger. Plaintiffs alleged, “[b]ased on information and belief, Plaintiffs were retaliated against and discriminated against because of their participation in the Frank lawsuit, or because of their association with their coworkers who were employed by [OPS].” Plaintiffs alleged the following pretexts were used to demote each of them to the position of custody assistant within the Sheriff’s Department, accompanied by a substantial reduction in pay:
A “hired gun” performed Esparza’s psychological fitness for duty examination with the intention of failing him. Esparza immediately consulted with a “noted” police psychologist, who found him fit for duty, but “the County refused to hire Plaintiff Esparza as a deputy sheriff.”
Mark’s application to be a deputy sheriff was rejected because of his moderate colorblindness. Mark alleged that he had a “moderate red/green deficiency” that had not impaired his ability to perform his duties as a security officer at the University of Southern California, a reserve police officer for the Los Angeles County Park Patrol, a reserve federal police officer for the Department of Defense at the Long Beach Naval Station, or an OPS peace officer. He received a letter from a county medical director, Dr. Robert Goldberg, stating that his vision test results were “consistent with at least moderate color vision impairment” and accordingly, Mark “[did] not meet the guidelines for the classification of Deputy Sheriff, which specify that ‘anything more than minor hue impairment is disqualifying.’ ” Dr. Goldberg acknowledged Mark’s past service for OPS, but explained that, unlike the Sheriff’s Department, OPS did “not have color vision as an essential requirement.”
Mora did not qualify for a position as a deputy sheriff because he failed the background investigation for reasons of “Financial Irresponsibility and Judgment.” Mora alleged that his financial irresponsibility resulted from his attempt to have his mortgage modified. The County had assured him his financial problems would not be grounds for disqualification.
Redd was also disqualified from a position as a deputy because she failed the background investigation. The stated reason was “Prior Law Enforcement Termination, Integrity and Judgment, ” which meant she was “being terminated for cause, based on disciplinary reasons.” Nothing further was alleged regarding Redd’s disqualification. Plaintiffs also complained that at the time of the merger, Mark, Mora and Redd were over forty years old and were terminated due to their age. They alleged, that “a majority of the over-40-year-old [OPS] peace officers were not retained as deputies sheriff for the [Sheriff’s Department].”
Plaintiffs alleged 12 causes of action. The first cause of action asserted a claim for retaliation in violation of the California Fair Employment and Housing Act (FEHA) for Plaintiffs’ participation in opposing the County’s racial discrimination and adverse employment practices. (Govt. Code, § 12900 et seq.) Plaintiffs Mark, Mora, and Redd claimed age discrimination under FEHA in the second cause of action, alleging that “Defendants’ decision to dissolve [OPS] operated to exclude members of Plaintiffs’ protected group-employees over the age of 40.” Plaintiffs Esparza and Mark claimed disability discrimination and failure to accommodate in violation of FEHA in the third and fifth causes of action, asserting that Esparza’s failure to pass the psychological fitness-for-duty examination and Mark’s color-blindness reflected disabilities or perceived disabilities. All Plaintiffs claimed in the fourth and sixth causes of action that the County violated FEHA by failing to prevent discrimination and by making non-job related inquiries. The first six causes of action were alleged against the County and no other defendant.
In addition to the six FEHA-based causes of action, Plaintiffs alleged six causes of action against both the County and the Sheriff’s Department for violations of the Public Safety Officers Procedural Bill of Rights Act (POBRA). (§ 3300 et seq.) Plaintiffs alleged the Board of Supervisor’s vote to eliminate OPS and the Sheriff’s Department’s refusal to hire Plaintiffs as deputy sheriffs constituted “demotions” and “punitive actions” without the procedural protections POBRA guaranteed. Plaintiffs also alleged that the Sheriff’s Department violated POBRA by requiring Plaintiffs to go through the standard application process for deputy sheriff positions, which included full background checks and polygraph examinations.
Lastly, Plaintiffs sought a writ of mandate against “all Respondents, ” alleging Respondents had a duty to provide Plaintiffs with administrative appeal hearings before “discharging” them from ...