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California Correctional Peace Officers Association v. Department of Corrections and Rehabilitation

California Court of Appeals, Third District, Sacramento

September 8, 2017

CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiff and Appellant,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Sacramento County No. 34-2013-80001524-CU-WM-GDS, Allen H. Sumner, Judge. Reversed with directions.

          California Correctional Peace Officers Association, Daniel M. Lindsay and Charlotte Martinez; Benedon & Serlin, Douglas G. Benedon and Wendy S. Albers for Plaintiff and Appellant.

          Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Julie L. Harlan, Deputy Attorney General, for Defendants and Respondents.

          Duarte, J.

         The California Correctional Peace Officers Association (the Association) brought a grievance on behalf of correctional officer Sammie Gardner, alleging a violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C. §§ 4301 et seq.). The grievance proceeded through the four-step process set forth in the memorandum of understanding (MOU) between the Association and the California Department of Corrections and Rehabilitation (Corrections). At the fourth step, a hearing before the Department of Personnel Administration (Department), the Department granted the grievance. When Corrections refused to comply with the Department's decision, the Association petitioned for a writ of mandate (Code Civ. Proc., § 1085) to compel compliance, the enforcement provided for in the MOU. The trial court denied the petition, adopting Correction's position, first raised in the trial court, that the Department lacked jurisdiction to decide the grievance because the State Personnel Board (SPB) had exclusive jurisdiction over appointments and the employment status of civil service employees and the foundation of the Department's decision was the finding that Gardner was an employee of Corrections in November 2001.

         The Association appeals, contending the grievance at issue is not under the exclusive jurisdiction of the SPB because it is not a merit-based grievance. We agree. We conclude the grievance at issue did not implicate the merit principle, set forth in the California Constitution, and therefore the SPB did not have exclusive jurisdiction. The MOU expressly provided that a grievance based on a reemployment USERRA claim, the claim actually decided, be appealed to the Department. Further, by acquiescing in the grievance procedure used, Corrections forfeited any claim that it was the wrong procedure. We reverse the judgment.

         FACTS

         In August 2011, the Association filed a grievance on behalf of Sammie Gardner. The grievance stated that Gardner had applied for a position with Corrections in 2000 while he was on active duty with the United States Air Force. Gardner received two job offers from Corrections, one in July 2001 and one in November 2001. Gardner began separation from service in about August 2001.

         After and because of the terrorist attacks of September 11, 2001, Gardner was reinstated to active duty and was unable to report to Corrections for the November 2001 academy. Gardner reported his unavailability to a Corrections sergeant and was told to report at the end of his tour of duty and that he would be assigned to the next academy. Gardner was released from duty in December 2002 and reported to Corrections. He was told there was a hiring freeze in effect and that he would need to reapply. Corrections hired Gardner in 2005. There had been a Corrections academy in November 2003, which Gardener had not been able to attend because according to Corrections he was not an employee.

         The grievance alleged that Corrections had violated USERRA by withholding employment from Gardner due to his military service.[1] As the “Rule, ” it cited USERRA, Government Code section 19775.18, and two provisions of the MOU relating to USERRA. The grievance set forth two “scenarios” that applied to Gardner. First, if Corrections withdrew the employment offer due to Gardner's military status, it violated USERRA by discriminating against him due to his military status (the discrimination claim). Second, if Corrections did not withdraw the offer, then Gardner accepted it and Corrections had a duty to re-employ him upon return from military duty (the reemployment claim).[2] Under either scenario, the grievance asserted that “Gardner is eligible for employment effective November 2001.”

         As remedies for the USERRA violation, the grievance sought remuneration for all merit salary increases Gardner would have received had he not been deployed; recalculation of his time worked, including overtime; credit for all leave credit as if he had not been deployed; recalculation of his seniority status; recalculation of his retirement to reflect a November 2001 start date; and any remedies “deemed just, proper and mutually agreed upon.”

         Article six of the MOU provided a procedure for certain grievances. Merit system appeals, under the jurisdiction of the SPB, were not grievable under the MOU. Merit system appeals included merit complaints and equal employment opportunity (EEO) complaints. The grievance procedure was first an informal discussion with the employee's supervisor, two steps of formal appeal to Corrections, and for certain grievances, including those under section 10.17 (leave for military service), an appeal to the Department. If the Department responded to the grievance by providing a remedy for the alleged violation, the Association could enforce the remedy by filing a writ of mandate pursuant to Code of Civil Procedure section 1085. If the Association was not satisfied with the decision, “only the [Association] may appeal the decision to binding arbitration.”

         Section 10.17 of the MOU addressed absences for duty in the uniformed services. It made reference to USERRA and stated that for California employees, USERRA was supplemented by Government Code sections 19770 through 19786. Section 10.17 set forth a summary of the relevant duties and obligations of both employers and employees under the law. It summarized the law as to the required advance notice of military leave, the required military leave, sick leave during military service, and the time limits for reporting back to work after military service.

         The parties utilized the article six grievance procedure without objection. Corrections denied both of Gardner's formal appeals (steps two and three). The grievance then went to the Department.[3] In March 2012, the Department granted the grievance and found Gardner eligible for seniority, retirement, and salary advancement credit as if he had reported to work for the November 2001 academy. The Department found “an employment relationship existed between Officer Gardner and [Corrections] when a bona fide job offer was made in 2001. This relationship afforded him certain protections under USERRA.”

         In late October or early November 2012, Corrections sent Gardner a check in the amount of $15, 000, as a “good faith payment.” Gardner was told he might have to give the money back because a Corrections attorney had decided Corrections was not going to abide by the Department's decision. In a series of communications in March through May of 2013 between attorneys for the Association and Corrections, Corrections indicated it did not intend to comply with the Department's decision.

         The Association petitioned for a writ of mandate in superior court to compel Corrections to comply with the Department's decision. In response, for the first time, Corrections alleged that the Department lacked jurisdiction for the order because the SPB has exclusive jurisdiction over appointments and employment status. Further, Corrections contended the Department's decision was too vague to implement.

         After allowing supplemental briefing, the trial court denied the petition. It found the Department exceeded its jurisdiction in determining that Gardner was an employee of Corrections in November 2001.

         The Association appealed.[4]

         DISCUSSION

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