Trejo v. Cnty. of L. A.

• Decision Date: 09 June 2020
• Docket Number: B293564
• Citation: 263 Cal.Rptr.3d 713,50 Cal.App.5th 129
• Court: California Court of Appeals Court of Appeals
• Parties: Christopher TREJO, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants.

50 Cal.App.5th 129

263 Cal.Rptr.3d 713

Christopher TREJO, Plaintiff and Respondent,

v.COUNTY OF LOS ANGELES et al., Defendants and Appellants.

B293564

Court of Appeal, Second District, Division 1, California.

Filed June 9, 2020

Hausman & Sosa, Jeffrey M. Hausman, Woodland Hills, and Larry D. Stratton, for Defendants and Appellants.

Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski, Santa Monica, and Brian P. Ross, for Plaintiff and Respondent.

WHITE, J.^*

Deputy sheriff challenged his employer's practice of extending probation while investigating the deputy's claimed misconduct as violating the Los Angeles County Civil Service Rules. Trial court agreed with deputy and issued a writ of mandate directing the Los Angeles County Sheriff's Department to reinstate deputy as permanent civil service employee. We affirm, holding the plain language of the rules does not authorize the department's practice of extending probation by re-assigning deputies under investigation to administrative duty. We also agree the deputy did not fail to exhaust administrative remedies.

FACTUAL BACKGROUND

A. The Probation System for Los Angeles County Employees

As a political subunit of the County of Los Angeles (County), employment at the Los Angeles County Sheriff's Department (Department) is subject to the County's Civil Service Rules (Rules).¹ The Rules provide for an initial probationary period after the employee is appointed for County employers to evaluate prospective employees before they are hired into permanent roles. Rule 12.02(A) specifies this probationary period "shall be no less than six nor more than 12 calendar months from the date of appointment."

There are several differences between permanent and probationary employees from both the perspectives of the employee and their employer. For instance, permanent employees participate in retirement plans while probationary employees do not. But, the crucial difference between the two classes of employees which drives this appeal is that it is much more difficult to terminate a permanent employee than it is to fire an employee on probation. (See Birdsall v. Carrillo (1991) 231 Cal.App.3d 1426, 1431, 282 Cal.Rptr. 504 ["A probationary employee serves at the pleasure of the County and may be rejected from a position without a hearing or judicially cognizable good cause" (fn. omitted) ].)

In order to terminate a permanent employee, a County employer must provide a right of administrative appeal under Government Code section 3304, subdivision (b), as well as the pre-termination safeguards provided by Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 (Skelly ) in the form of a " Skelly hearing."² This is deliberate. According to the County's "Employee Handbook," "If you do not meet performance requirements and expectations, or your behavior is unacceptable, you may be released if you are a first-time probationer." (L.A. County Employee Handbook (2003) Probation, p. C-2.)

Deputy sheriffs serve 12-month probationary periods. Promotion into a permanent position is made by evaluating a deputy's performance of the five essential duties of a deputy sheriff. They are: (1) testifying in court; (2) driving a County vehicle; (3) qualifying with weapons; (4) making a forcible arrest; and (5) seizing evidence or contraband.

If a deputy sheriff is investigated for misconduct while still on probation, it is the Department's policy to place that deputy on "[r]elieved of duty status" pending the results of the investigation. Deputies placed on "relieved of duty status" may be reassigned to modified duties, such as administrative jobs, that do not involve three of the five essential duties of a sheriff, namely, qualifying with weapons; making a forcible arrest; and seizing evidence or contraband. Because deputies on modified duty do not perform all the essential duties of being a deputy sheriff, the Department has a policy in which it "extends" the 12-month probationary period for the duration of the investigation. The extension is necessary because the Department cannot fully evaluate a deputy for promotion into permanent service when the deputy on modified duty is only performing some of the essential duties of being a deputy sheriff.

The primary issue in this appeal is whether the Department's policy of "extending" the maximum 12-month probationary period by placing a deputy under investigation into an administrative job is lawful under the Rules.

B. Trejo's Employment by the Department

After graduating from the academy, respondent Christopher Trejo was hired as a Deputy Sheriff Generalist on February 23, 2014. Trejo's 12-month probationary period started that day. About four months later, Trejo was involved in a use-of-force incident which triggered an investigation. The incident involved a handcuffed inmate who was kicking and pulling away from officers. This commotion attracted the attention of several officers, including Trejo. But only Trejo physically engaged with the inmate. Trejo was relieved of duty on June 20, 2014, pending an investigation into violation of use-of-force policies. He was issued a civilian identification card, relieved of his gun and badge, and no longer possessed police powers. Trejo was then reassigned to the records unit pending this investigation. The evidence before the trial court was that in this modified position Trejo did not perform the essential duties of a deputy sheriff. Trejo continued to be paid.

On August 4, 2014, the Department provided Trejo with a letter purporting to extend his statutory 12-month probation period. That letter stated: "In accordance with Civil Service Rule 12.02, your probationary period as a Deputy Sheriff, Item Number 2708, has been extended. This extension is due to your relieved of duty status. [¶] Upon your return to your assigned duties, your unit will notify Personnel Administration Bureau and your probationary period will be recalculated."

Nearly 18-months later, on January 20, 2016, the Department terminated Trejo as taking the position that he remained a probationary employee. The Department's termination letter also informed Trejo of certain appeal rights. Because the Department did not consider Trejo a permanent employee, he was not notified of any rights to a Skelly hearing or other pre-termination safeguards available to permanent County employees.

On January 29, 2016, Trejo requested a "Liberty Interest," or " Lubey " hearing, "to clear [his] name and be reinstated as a deputy sheriff." (See Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346, 159 Cal.Rptr. 440.)³ Following a hearing on August 25, 2016, the Department issued its decision confirming Trejo's termination and concluded he should not be reinstated.

Trejo then contested his termination by filing a request for a hearing before the Civil Service Commission (Commission), asserting he was a permanent employee at the time of his termination. The Department objected to Trejo's petition arguing the Commission lacked jurisdiction because Trejo was only a probationary employee. The Department also claimed the petition was untimely. The Commission agreed the petition was untimely and did not rule on the merits of whether Trejo was a permanent employee entitled to civil service pre-termination rights.

PROCEDURAL BACKGROUND

Trejo then challenged his termination by filing a petition for writ of mandate in superior court. His first amended petition, filed May 24, 2017, and the complaint operative on this appeal, alleged three causes of action: (1) a writ of mandate pursuant to Code of Civil Procedure section 1085 ; (2) a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 ; and (3) relief under Government Code section 3309.5.

The first cause of action alleged the County unlawfully extended Trejo's 12-month probationary period in contravention of rule 12.02(B).⁴ As more fully discussed below, rule 12 not only provides that the probationary period for permanent County employment may not exceed 12 months, it also authorizes a County employer to re-calculate the length remaining on a candidate's probation when the employee is "absent from duty." Specifically, when a candidate is "absent from duty," rule 12.02(B) authorizes the employer to stop the 12-month clock for the "time away." The rule also explains the method of calculation: the probationary period remaining after an absence from duty equals "actual service exclusive of the time away." (Rule 12.02(B), italics added)

The County argued Trejo was "absent from duty" when he was given his replacement administrative job because he was not performing the five essential duties of a deputy sheriff. And, since Trejo was never reinstated to a position involving carrying a gun, making arrests, and seizing evidence, he remained "absent from duty" until the day of his termination.

Trejo rightly responded by pointing out rule 12.02(B) cannot be read in isolation. He observed a key phrase in rule 12.02(B), "actual service," is a defined term found at rule 2.01. And, under rule 2.01, an employee is engaged in " ‘[a]ctual service’ " whenever that employee is performing "the duties of a position or positions including absences with pay." (Rule 2.01, italics added.)

The trial court recognized that evaluating this argument required it to interpret rules 2.01 and 12.02(B) together. Applying rule 2.01's definition of "actual service" to rule 12.02(B) implies that so long as a probationary employee is performing the duties of " ‘a position,’ whether or not it is one for which the employee was hired," the time in that other position still counted toward completion of the employee's 12-month probation. In other words, even though Trejo was performing an administrative function, he was still performing the duties of "a position," and the time in that other position must be counted toward completion of his probation. For Trejo, this meant his transfer into an...