Jones v. Omnitrans

• Decision Date: 23 December 2004
• Docket Number: No. E035295.,E035295.
• Parties: Jeffrey JONES, Plaintiff and Appellant, v. OMNITRANS, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

22 Cal.Rptr.3d 706

125 Cal.App.4th 273

Jeffrey JONES, Plaintiff and Appellant, v. OMNITRANS, Defendant and Respondent.

No. E035295.

Court of Appeal, Fourth District, Division 2.

December 23, 2004.

Review Denied April 13, 2005.^*

Castle, Petersen & Krause, LLP, Temecula, Dabney B. Finch, Wildomar, and Robert W. Krause, Temecula, for Plaintiff and Appellant.

Ronald D. Reitz, County Counsel, and Carol A. Greene, Deputy County Counsel, for Defendant and Respondent.

OPINION

McKINSTER J.

Jeffrey Jones appeals from a judgment of dismissal entered after the trial court sustained Omnitrans's demurrer to Jones's petition for writ of mandate, without leave to amend.

Jones contends that he was deprived of his constitutionally protected property interest in continued employment with Omnitrans, a public transit agency, without due process of law because Omnitrans dismissed him and refused to afford him a posttermination hearing to contest his dismissal. He contends that the memorandum of understanding (MOU) between Omnitrans and his union, which provided for a multistep grievance procedure in which only the union could request arbitration, is unenforceable because it waives the individual employee's right to due process in violation of California decisional law. Omnitrans contends, however, that the grievance procedure satisfies due process requirements, even though it vests the union with the exclusive authority to decide whether to request arbitration.

We conclude that the grievance procedure satisfied the requirements of due process and that the petition therefore failed to state a cause of action. We affirm the judgment.

DISCUSSION

Standard of Review

On appeal from a dismissal entered after an order sustaining a demurrer to a petition for writ of mandate, we review the order de novo, determining independently whether the petition states a cause of action as a matter of law. (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869, 13 Cal.Rptr.3d 420.) We give the petition a reasonable interpretation, reading it as a whole and viewing its parts in context. We deem to be true all material facts that were properly pled, as well as all facts that may be inferred from those expressly alleged. (Ibid.) We also accept as true all recitals of evidentiary facts contained in exhibits attached to the petition. (Satten v. Webb (2002) 99 Cal.App.4th 365, 375, 121 Cal.Rptr.2d 234.) We interpret the petition's allegations liberally, with a view toward substantial justice between the parties. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7, 77 Cal.Rptr.2d 709, 960 P.2d 513.) If the facts alleged by the petitioner state a cause of action under any possible legal theory, we will order the demurrer overruled. (City of Morgan Hill v. Bay Area Air Quality Management Dist., supra, 118 Cal.App.4th at p. 870, 13 Cal.Rptr.3d 420.)

An essential element of a cause of action for mandamus is the existence of a clear, present and usually ministerial duty upon the part of the respondent. (Code Civ. Proc., § 1085; Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, 28 Cal.Rptr.2d 617, 869 P.2d 1142.) A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists. (Transdyn/Cresci JV v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752, 85 Cal.Rptr.2d 512.) The existence of a duty allegedly arising from the constitutional guarantee of due process is a question of law decided de novo on appeal. (Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 22, 83 Cal.Rptr.2d 481.)

Factual Background

Jones's petition alleged that he was employed by Omnitrans, a local public transit agency, as a coach operator. On July 23, 2002, Omnitrans dismissed Jones for misconduct involving a verbal altercation with a security guard. Jones requested arbitration of his dismissal. Jones's union, Amalgamated Transit Union Local 1704, declined to take the matter to arbitration. Jones requested that Omnitrans proceed with the arbitration in spite of the union's refusal, but Omnitrans refused. Omnitrans concluded that because the union declined to pursue arbitration on Jones's behalf, Omnitrans was without the authority to engage in arbitration and would be in violation of the MOU if it did so.

The MOU provides for an optional informal grievance procedure and a three-step formal grievance procedure. Step 1 in the formal procedure provides that the employee may present his grievance in writing, with or without union representation, to the director of operations. The director must schedule a meeting within 15 working days of receipt of the written grievance, discuss the grievance with the employee, and respond in writing within seven working days after the meeting. Step 2 requires that if the grievance is not resolved in Step 1, the employee must submit the grievance to the CEO/general manager, again with or without union representation. The CEO/general manager or his designee must schedule a meeting within 15 days of receipt of the grievance, discuss the grievance with the employee, and issue a written response within seven working days after the meeting. Step 3, the step which is at issue in this case, states in pertinent part:

"If the grievance is not resolved in Step 2 and if the grievance is ... over a disciplinary action that resulted in ... termination, ... the employee, with the [union] representative, may request, in writing, that the grievance be referred to a Grievance Committee, made up of a representative appointed by the Agency, a representative appointed by the [union] and a third party mutually selected by the parties. The union will, in accordance with its bylaws, call for a membership vote to confirm whether or not they wish to proceed with this step of the grievance within 30 days of the request for grievance advancement. The union representative must be a member of ATU Local 1704. The third party shall be selected from a list of not more than seven (7) names furnished by the State Mediation and Conciliation Service. A separate list shall be obtained for each action pursuant to this procedure after notification has been received from the [union] to proceed with the Step 3 procedure. [¶] The Grievance Committee shall ... hold a hearing to receive testimony and submit its decision to the CEO/General Manager for implementation or further appeal." (Italics added.)

Under The Facts Alleged in the Petition, Omnitrans Had No Duty to Afford Jones a Hearing

Jones Had a Property Interest in Continued Employment

A public employee who is subject to discharge only for cause has a constitutionally protected property interest in continued employment. (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1112, 278 Cal.Rptr. 346, 805 P.2d 300; U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The property interest may be created by statute or by rules adopted by the public agency. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 207-208, 124 Cal.Rptr. 14, 539 P.2d 774; Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 950, 77 Cal.Rptr.2d 231; Mendoza v. Regents of University of California (1978) 78 Cal.App.3d 168, 173-174, 144 Cal.Rptr. 117.)

Jones's petition alleges that Omnitrans is a local public agency¹ but does not expressly allege that his employment was subject to termination only for cause. None of the exhibits to the petition expressly recites that Jones was subject to dismissal only for cause. However, exhibit 1 to the petition, the "Notice of Proposed Disciplinary Action: Dismissal" issued to Jones by Omnitrans, recites that Jones was being dismissed for a specified cause and refers to portions of the Omnitrans Personnel Policy Manual that we infer provide for dismissal upon a first violation of certain provisions. Because this exhibit supports an inference that Jones could be dismissed only for cause pursuant to the rules adopted by Omnitrans, and because Omnitrans does not contend otherwise, we conclude that, construed liberally, the petition and its exhibits sufficiently allege that Jones could be discharged only for cause (Satten v. Webb, supra, 99 Cal.App.4th at p. 375, 121 Cal.Rptr.2d 234; Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at p. 43, fn. 7, 77 Cal.Rptr.2d 709, 960 P.2d 513) and that he therefore had a constitutionally protected property interest in continued employment by Omnitrans.

The Grievance Procedure Provided Adequate Procedural Due Process

A public employee who is subject to dismissal only for cause may not be dismissed without being afforded procedural safeguards that are sufficient to satisfy the employee's right to due process. (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at p. 1112, 278 Cal.Rptr. 346, 805 P.2d 300; Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 209, 124 Cal.Rptr. 14, 539 P.2d 774.) Procedural due process requires at a minimum that the employee be given notice of the reasons for the termination, an opportunity to respond to the charges, either orally or in writing, and an evidentiary hearing at which the employer bears the burden of proving the facts supporting the decision to terminate the employment. (Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651, 656, 229 Cal.Rptr. 502, disapproved on another ground by Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at p. 1123, fn. 8, 278 Cal.Rptr. 346, 805 P.2d 300; Townsel v. San Diego Metropolitan Transit Development Bd., supra, 65 Cal.App.4th at pp. 946-950, 77 Cal.Rptr.2d 231.) The hearing may be held either before or after the employee has been discharged. (Townsel v. San Diego Metropolitan Transit Development Bd., supra, at p. 949, 77 Cal.Rptr.2d 231.)

The right to due process is a personal one, and ...