Earley v. City of L.A.
| Decision Date | 22 January 2020 |
| Docket Number | B296279 |
| Parties | DAWN EARLEY, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS171715)
APPEAL from judgment of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Law Offices of Gregory G. Yacoubian and Gregory G. Yacoubian for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Chief Civil Litigation Branch, Blithe S. Bock, Assistant City Attorney, and Paul. L. Winnemore, Deputy City Attorney, for Defendants and Respondents.
Following an administrative hearing on a three-count personnel complaint, Dawn Earley was discharged as a peace officer from the Los Angeles Police Department (Department). Earley appeals from a judgment denying in part her petition for writ of administrative mandate. The petition sought an order directing the City of Los Angeles (City) and its then-Chief of Police, Charlie Beck, to set aside Earley's termination. The trial court upheld the misconduct findings in count 1 for unauthorized absences, and in count 3 for refusing to submit to an investigative interview. The court remanded the matter to reconsider on an appropriate penalty based on its findings in counts 1 and 3.1 Earley contends count 1 is barred by the applicable statute of limitations, and count 3 is based on an invalid order. For the first time on appeal, she also contends her discharge is invalid because the Department failed to follow a mandatory process.
We conclude count 1 is not barred by the statute of limitations, and count 3 is based on a valid order. Finally, we deem Earley's new argument forfeited for her failure to raise it below. We affirm.
Earley was employed by the Department as a senior lead officer. In 2002, Earley developed dermatitis after she took medications for work-related injuries. Although the Department fully compensatedEarley for her work injuries as part of a 2008 workers' compensation settlement, it did not impose work restrictions or contemplate future time off. The Department subsequently provided Earley accommodations that included a front desk assignment.
In June 2015, Lieutenant Shawn Gregory called Earley after discovering she had accrued significant unaccounted sick time. After initially refusing to provide information, Earley later submitted a series of notes from her dermatologist. None of the notes reported any kind of medical condition or work restriction. After Gregory called her again, Earley stated she could not come into work due to a skin condition and prior back and knee injuries. Gregory informed Earley that the paperwork she submitted was inadequate, and she needed to submit a completed injury status report. The record contains 11 injury status reports from July 2015 to July 2016; outside of notating "avoid contact [with] public" in three of the eleven reports, Earley's dermatologist never specified a work restriction.
In October 2015, Earley's commanding officer, Captain Donald Graham, determined Earley was being documented as "Absent without Leave." An absence without leave, which signifies an officer's absences are unapproved and unpaid, constitutes actionable misconduct. Earley admits she consistently failed to report for duty between October 2015 and January 2017.
On October 27, 2015, the Department sent Earley a correspondence letter informing her that she had fully exhausted her sick time, and her absences were unauthorized.
Graham ordered a misconduct investigation into Earley's ongoing absences. To determine why Earley continued to absent herself from duty, her supervising officer, Sergeant Robert Grant, called Earley on March 23, 2016, and issued her a direct order to submit to an investigative interview by March 31, 2016. During the call, Grant attempted to make reasonable accommodations for the interview, but Earley informed him she would not submit to an interview because she was "not medically able to do it" based on the information contained in her doctor's notes. In response, Grant stated there was no compelling reason for her not to participate in an interview, and her failure to comply would constitute insubordination, which is considered serious misconduct. Earley never made herself available for an interview prior to, on, or after March 31, 2016. Instead, her dermatologist submitted a letter the day of the interview stating Earley could not give an "Intelligent Interview" because her "medications cause drowsiness and dry mouth."
Having concluded his investigation, Grant found Earley's absences between February 8 and September 8, 2016 to be unjustified. He also found Earley failed to comply with direct orders to return to work and submit to an interview. Based on these findings, and because Earley was a senior officer, Graham found that Earley's misconduct had a "tremendous detrimental impact on . . . command."
On December 1, 2016, the Department filed a three-count complaint against Earley. In count 1, the Department alleged that"[b]etween February 8, 2016 and September 8, 2016, [Earley] failed to report for [her] scheduled duty assignment, as required." Count 3 alleged that "[o]n or about March 31, 2016, [Earley] failed to submit to administrative interviews after being ordered to do so."
The Board of Rights (Board) convened to adjudicate the complaint on August 28, 2017. After pleading not guilty to each count, Earley moved to dismiss count 1 based on the one-year statute of limitations set forth under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.),2 and the Los Angeles City Charter (Charter). Earley argued count 1 accrued on October 28, 2015, when she failed to return to work after receiving an order to return to duty, and was untimely because the Department filed the personnel complaint on December 1, 2016.3 After denying the motion, the Board reviewed 38 exhibits and heard testimony from 12 witnesses.
Graham testified that Earley did not report for work between February 8 and September 8, 2016, and did not request leave without pay, which would have prevented any alleged misconduct. In her own testimony, Earley agreed she had responsibilities as a full duty, senior peace officer without medical restrictions, and was required to submit paperwork to authorize her leaves of absence.
One of the exhibits admitted into evidence was Special Order No. 7 (Special Order), which provides, inter alia, that "[a]ny employee with permanent medical restrictions may request a permanent reasonable accommodation to perform the essential job functions of his or her civil service classification." The Special Order covers employees who have been injured on or after August 1, 2006, and commences upon an employee providing a physician's note listing any permanent medical restriction. Tim Sands, a workers compensation expert who testified on Earley's behalf, stated that "[a]nother way that [Earley] could have been handled is through the inner [sic] active process, which is [the] Special Order." In closing arguments, Earley's advocate echoed Sands's testimony when he said the Department "could have started the process as Tim Sands said."
A majority of the three-member Board found Earley guilty on all three counts.4 In light of the Board's recommendation, the Chief of Police discharged Earley from her position on September 7, 2017.
Three months later, Earley filed a petition for writ of administrative mandate seeking reinstatement. In her supporting motion, Earley stated she had "two primary arguments against this action." In her first argument, Earley reasserted that count 1 wasbarred by the one-year statute of limitations, which she argued accrued no later than October 28, 2015, the day after the Department issued her a return to work order, which she conceded she consistently breached. In her second argument, Earley contended count 3 was "invalid as a matter of law" because she could not commit an act of insubordination as an off-duty and off-payroll officer. As a remedy, Earley sought reinstatement. Following her request for reinstatement, Earley relied on the language in the Special Order by stating that "[i]f it then appears to [the Department], through competent medical evidence, that she is unable to perform [her] duties, and the City's Pension Board determines she is unable to perform those duties due to her work-related injury, it should move to award her a service-connected disability pension."5
The Department opposed the petition, and Earley filed a reply. At the hearing on her petition, Earley modified her argument in count 3, stating the City "beared [sic] the responsibility to affirmatively put [Earley] on notice that she would be compensated," which she claimed did not happen.
In its ruling and judgment, the court upheld the findings in counts 1 and 3. As to count 1, the court found that under the continuous accrual doctrine, each unjustified absence beginning in February 8, 2016, was independently actionable and timely under the one-year statute of limitations. As to count 3, the court found Earley was anactive employee at the time of the order, and her refusal to submit to an investigative interview...
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