Opinion
D058123
12-21-2011
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, et al., Plaintiffs and Respondents, v. VISTA UNIFIED SCHOOL DISTRICT, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. 37-2009-00057592- CU-PT-NC
APPEAL from a judgment of the Superior Court of San Diego County, Thomas Nugent, Judge. Affirmed.
Debra Gil and her union, California School Employees Association (CSEA), filed a petition for writ of mandate requesting that Gil's former employer, Vista Unified School District (the District), be ordered to pay her $6,412.07 in statutory industrial accident leave benefits for the time when she was on leave due to a work-related injury. She claimed that while she was on industrial accident leave, the District wrongfully withheld these benefits by placing her on unpaid administrative leave due to the expiration of a certificate needed for her job as a school bus driver. The trial court granted Gil's writ petition, finding that the expiration of her bus driver certificate did not bar her from receiving the industrial accident leave benefits.
Challenging the court's ruling on appeal, the District argues (1) Gil was required to exhaust her internal remedies under the parties' collective bargaining agreement before filing a court action, and (2) Gil is not entitled to the industrial accident leave benefits because she was suspended from her employment. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Gil began working for the District as a school bus driver in 1989. On April 18, 2008, she was involved in a bus accident during the course of her employment. She filed a workers' compensation claim and began receiving workers' compensation benefits equal to about two-thirds of her normal salary. The industrial accident leave benefits which were not paid to Gil are set forth in the Education Code and approximate the remaining one-third of her normal salary.
School bus drivers are required to have a valid school bus driver certificate, and Gil's certificate was set to expire on April 29, 2008. Three days after Gil's accident, on April 21, 2008, the District's transportation director sent Gil a letter stating that her certificate was due to expire on April 29; she needed 10 or more hours of training to be eligible to test for renewal of the certificate; there were no open positions to which she could be demoted; and a dismissal recommendation would be sent to human resources.
Two days later, the District's human resources director sent Gil a letter stating that her last day of paid administrative leave would be April 28, 2008 (the date her school bus driver certificate would expire), and that effective April 29 she would be on unpaid administrative leave pending reinstatement of her certificate. She was advised of the campus location where she could attend the bus driver class.
After receiving these communications, Gil apparently satisfied some, but not all, of the requirements to renew her school bus driver certificate. On July 23, 2008, the District's transportation director sent Gil a letter giving her a "grace period" until August 15, 2008, to renew the certificate. The letter stated that if she did not complete the renewal by that date, she could take a voluntary demotion to a transportation assistant (if there was an opening); otherwise, dismissal would be recommended. On December 22, 2008, the District's human resources coordinator sent Gil a notice of intent to dismiss her because her bus driver certificate had expired on April 28, 2008, and had not been renewed.
During the time period of these communications from the District concerning her school bus driver certificate, Gil had not been released by a doctor to return to work and she remained on industrial accident leave.
On December 23, 2008, CSEA sent the District a letter protesting its action of placing Gil on unpaid administrative leave without following the required due process procedures. CSEA requested that the District pay Gil the industrial accident leave benefits owed to her under the relevant collective bargaining and Education Code provisions.
On December 27, 2008, Gil requested a Skelly hearing on the District's notice of intent to dismiss her. However, she was still not released to return to work, and she subsequently decided to retire. On January 6, 2009, she sent the District a notice stating that she was retiring effective January 10, 2009. Based on Gil's decision to retire, the District cancelled the Skelly hearing and did not continue with the termination process.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
On January 9, 2009, the District denied CSEA's request for payment of the leave benefits to Gil.
On February 2, 2009, CSEA and Gil filed a public entity claim against the District, stating the District had violated the Education Code by failing to keep Gil on paid status and failing to pay her the industrial leave benefits required by the Education Code from April 29, 2008, until the date of her retirement in January 2009. The District denied the claim.
For convenience, we at times refer to CSEA and Gil collectively as "Gil."
Thereafter, Gil filed a petition for writ of mandate requesting that the District be ordered to pay the leave benefits mandated by the Education Code. In opposition, the District argued that Gil's claim should be denied because she was required to exhaust the grievance and arbitration remedies in the parties' collective bargaining agreement. On the merits, the District asserted she was not entitled to the industrial leave benefits because she was no longer qualified for her job due to the expiration of her bus driver certificate.
The District also argued that her request should be denied on equitable grounds because it decided to forego the termination proceedings when she decided to retire. The trial court rejected this contention, and the District does not reiterate it on appeal.
In reply, Gil argued she was not required to first file a grievance because she was asserting her statutory rights under the Education Code which existed independently of the collective bargaining agreement. She contended the District had no right to cut off statutory leave benefits payable to an employee who is on industrial accident leave due to the coincidental expiration of a work-related certificate. She asserted there was nothing in the Education Code making the industrial accident leave benefits contingent on the maintenance of a job certificate or license; termination of industrial leave benefits based on the expiration of a certificate would defeat the legislative purpose of providing the injured employee time to heal without loss of employment; and actions based on the nonrenewal of a certificate or license would be appropriate when the employee is able to return to work but not while the employee is on industrial accident leave.
The trial court concluded Gil was not required to file a grievance under the collective bargaining agreement before filing the court action. The court found Gil was entitled to the industrial leave benefits even though her bus driver certificate expired during her industrial leave, noting the District had "cited no authority requiring an employee on leave recovering from injuries to take efforts to maintain or renew licenses or certificates." Accordingly, the court ordered the District to pay Gil the $6,412.07 she was owed as paid leave from April 29, 2008, to January 10, 2009.
DISCUSSION
I. Relevant Law
A petitioner seeking issuance of a writ of mandate must show that a respondent has failed to perform an act despite a clear, present, and ministerial duty to do so, and that the petitioner has a clear, present and beneficial right to that performance. (Code Civ. Proc., § 1085, subd. (a); Hendrix v. Superior Court (2011) 191 Cal.App.4th 889, 893.) " 'A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.' " (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
Although the usual remedy for failure to pay wages owing to an employee is an action for breach of contract, the courts have concluded that a public employee may use mandamus procedures when the amount of the claim is fixed by law and the act of drawing and paying the warrant is a ministerial duty. (Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 198-199 (Tevis); A.B.C. Federation of Teachers v. A.B.C. Unified Sch. Dist. (1977) 75 Cal.App.3d 332, 341-342.) Further, " 'mandamus is a proper remedy where the dispute concerns the proper construction of a statute or ordinance giving rise to the official duty to pay the salary claim.' " (A.B.C. Federation of Teachers, supra, at p. 342; Tevis, supra, at p. 198; California School Employees Assn. v. Torrance Unified School Dist. (2010) 182 Cal.App.4th 1040, 1044; 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, §§ 90, 91, pp. 978-981.)
The statute invoked by Gil in her writ petition, Education Code section 45192, sets forth a detailed scheme concerning industrial accident leave payments to employees who are injured on the job. Section 45192 states that school districts must provide at least 60 working days of annual paid industrial accident leave; the leave must commence on the first day of absence; and the payments must not exceed the employee's normal daily wages when added to a workers' compensation award. (§ 45192, subds. (a), (c), (d).) When the employee has exhausted the industrial accident leave, other leave benefits (including paid sick leave and vacation leave) are then used, in an amount that does not exceed the normal daily wages when added to the workers' compensation award. (§ 45192, subd. (f).) Other sections of the Education Code specify the minimum required days of additional leave, including sick leave and vacation leave, and identify paid holidays. (§§ 45191, 45196, 45197, 45203.) Finally, section 45192, subdivision (f) provides that if the employee is not medically able to return to work when all available leaves of absence (paid or unpaid) have been exhausted, the employee shall be placed on a reemployment list for 39 months with hiring priority rights.
Subsequent statutory references are to the Education Code.
Although the District disputes Gil's right to collect industrial leave benefits, it does not dispute the accuracy of her calculations concerning the amount of money she is owed under the Education Code. Accordingly, we need not delineate her calculation method based on these statutory provisions.
Section 45192, subdivision (f) states that the school district may provide for additional leaves of absence, paid or unpaid, beyond the statutorily-mandated amounts.
II. No Requirement of Exhaustion of Internal Remedies
The collective bargaining agreement between the District and CSEA sets forth essentially the same industrial accident leave benefits as the Education Code, and provides for enforcement of its provisions through grievance and arbitration procedures. The District argues that Gil was required to exhaust her remedies under the collective bargaining agreement before she could bring a court action.
The courts have repeatedly rejected the notion that an employee is necessarily barred from enforcing statutory rights in a judicial forum unless the employee has first pursued collective bargaining remedies concerning the same or similar rights. In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 959 (Cicairos), the court concluded that although arbitration procedures may be used to resolve statutory claims if the parties so intend, an employee is not necessarily required to exhaust internal grievance/arbitration procedures before filing a lawsuit to enforce statutory rights. The Cicairos court held that even though the provisions in the collective bargaining agreement concerning the rights at issue (meal periods and rest breaks) were almost identical or even more generous than under state law, the employees were not required to first bring their claims under the grievance/arbitration provisions. (Id. at pp. 959-960.) In support of its conclusion, Cicairos noted that the rights involved nonwaivable, minimum statutory requirements, and there was no provision in the collective bargaining agreement reflecting an agreement to arbitrate alleged violations of statutory rights. (Ibid.)
Other courts have reached similar conclusions. (See, e.g., Tracy Educators Assn. v. Superior Court (2002) 96 Cal.App.4th 530, 538-539 (Tracy) [employee not required to use grievance/arbitration procedures in case where leave of absence rights under statutory provision were more generous than under collective bargaining provision]; Veguez v. Governing Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406, 416-417 (Veguez) [employee not required to use grievance/arbitration procedures in case where statutory provision used different calculation method for differential-pay sick leave than collective bargaining provision].)
Although in Tracy and Veguez the rights set forth in the contractual agreement were not identical to the rights provided under the statute, the Veguez court suggested this was not pivotal to its conclusion, stating: "Even if the collective bargaining agreement were identical to the statutory provisions . . . , we are not convinced [the employee] would be required to exhaust internal grievance procedures before filing a lawsuit to enforce her statutory rights. . . . However, resolution of that question can await another day." (Veguez, supra, 127 Cal.App.4th at p. 417, fn. 8.) Citing this comment in Veguez, the court in Cicairos did reach this question, and concluded the employee could in the first instance enforce the statutory rights in a judicial forum, regardless of the provision of comparable rights in the collective bargaining agreement. (Cicairos, supra, 133 Cal.App.4th at pp. 959-960; accord Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 585, 592-595 [even though collective bargaining agreement provided for rest breaks, trial court properly denied motion to compel arbitration prior to judicial resolution of statutory right to rest breaks].) As noted in Zavala, statutory rights afforded to employees " 'are independent of the collective-bargaining process. They devolve on petitioners as individual workers, not as members of a collective organization.' " (Zavala, supra, 143 Cal.App.4th at p. 593.)
We agree with the holding in Cicairos, and find it applicable here. The District has not cited any provision in the collective bargaining agreement whereby Gil agreed to use the grievance/arbitration provisions to enforce her statutory rights under the Education Code. As found by the trial court, Gil was entitled to pursue enforcement of the statutory industrial accident leave benefits in court.
Citing Tracy, the District argues that a judicial action to enforce a statutory right is only proper in the first instance if the grievance provision in the collective bargaining agreement is narrowly written so that it does not cover the employee's claim, whereas the grievance provision in the parties' collective bargaining agreement is broadly written to cover Gil's claim. We are not persuaded. Although the court in Tracy noted the language of the grievance provision (i.e., defining a grievance as " 'an allegation that the District has violated this Agreement' "), it did not characterize the language as narrow, but merely stated that the plaintiff had "made clear that its demand for [the] leave of absence was pursuant to" the Education Code. (Tracy, supra, 96 Cal.App.4th at p. 538.) In any event, other courts have recognized the employee's right to use the judicial forum in the first instance notwithstanding grievance/arbitration provisions comparable to the provision in this case. (See, e.g., Cicairos, supra, 133 Cal.App.4th at p. 960 [" 'grievance is any controversy between the Company, the Union or an employee arising out of an alleged violation of a specific provision of this Agreement"]; Zavala, supra, 143 Cal.App.4th at p. 595 [arbitration provision covers " 'all disputes or controversies arising under this agreement' "], italics omitted.)
The grievance provision in the parties' collective bargaining agreement defines a grievance as "an allegation by a unit member, group of members, or the Association who claim to be directly affected by a violation, misinterpretation, misapplication, or misimplementation of the specific provisions of this Agreement."
To support its position, the District cites cases in which court actions were dismissed based on the failure to exhaust arbitration remedies in collective bargaining agreements. These cases are inapposite because they do not involve employee actions brought to require the employer to perform a statutory duty. (See, e.g., Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 891, 894 [action dismissed for failure to pursue arbitration concerning breach of no-strike clause in collective bargaining agreement]; Johnson v. Hydraulic Research & Mfg. Co. (1977) 70 Cal.App.3d 675, 678-681 [action dismissed for failure to pursue arbitration concerning discharge of employee arising from employer's receipt of medical examination results pursuant to collective bargaining provision]; Service Employees Internat. Union, Local 1000 v. Department of Personnel Admin. (2006) 142 Cal.App.4th 866, 868-871 [action dismissed for failure to pursue arbitration concerning right to distribute union materials under collective bargaining agreement provisions].) Although the parties in some of these cases raised statutory issues, the statutory matters did not pertain to the employee's enforcement of a statutory right existing independently of the collective bargaining agreement. (See Johnson, supra, at p. 678; Service Employees Internat. Union, Local 1000, supra, at pp. 869, 875; see also California Correctional Peace Officers Association v. State of California (2006) 142 Cal.App.4th 198, 207-211.)
The California Supreme Court has granted review in a case in which the appellate court held that a union was required to exhaust collective bargaining remedies before bringing a court action to enforce a mandatory statutory right. (California Teachers Association v. Governing Board of the Salinas City Elementary School District (2010) 187 Cal.App.4th 81, review granted Nov. 10, 2010, S185651.) Absent contrary direction from our high court, we follow the principle reflected in Cicairos, Zavala, Tracy, and Veguez—i.e., that an employee may elect to enforce a statutory right in court without first exhausting collective bargaining remedies.
III. Right to Industrial Leave Benefits
Turning to the merits of the mandamus order, the District asserts it had no duty to pay Gil the statutory industrial accident leave benefits because she was suspended without pay during the relevant time period. The contention is unavailing.
The District placed Gil on unpaid administrative leave and denied her industrial accident leave benefits solely because her bus driver certificate expired while she was on leave. As delineated above, section 45192 sets forth detailed provisions governing the manner in which school districts must provide paid leave during periods of industrial accident leave. First, the school district must provide at least 60 working days of industrial accident leave pay. Upon the exhaustion of this paid leave, the district must continue to provide paid leave under other leave benefit provisions, including sick leave and vacation leave. Finally, following exhaustion of all paid and unpaid leave, the employee must be placed on a preferential rehiring list. Additionally, the statute provides that industrial accident leave periods, paid or unpaid, shall not be considered a break in the employee's service. (§ 45192, subd. (f).)
When interpreting a statute, the objective is to determine and give effect to the Legislature's purpose in enacting the statute. (Hendrix v. Superior Court, supra, 191 Cal.App.4th at p. 893.) It is apparent that the legislative intent underlying the industrial accident leave statute is to preserve the injured employee's paid status while the employee is recovering, and to preserve the injured employee's right to return to his or her job upon recovery. To permit a school district to suspend an employee, withhold industrial accident leave pay, and ultimately dismiss the employee, based solely on the fact that the employee's job-related license or certificate has expired during the period of industrial accident leave would undermine this legislative intent to extend pay and job protections to the industrially-injured employee. Indeed, there may be instances where an injured employee is physically or mentally unable to take the steps needed to renew a certificate or license because of the nature of the injuries sustained in the work-related accident.
As noted by the trial court, the District has cited no law or policy supporting an interpretation of the industrial accident leave statute to require that the employee maintain job-related certificates or licenses as a condition of receiving the statutorily-mandated leave benefits. Although the expiration of a certificate or license could impact the employee's ability to return to work upon medical release, we conclude it does not impact the employee's right to receive industrial accident leave benefits during the industrial accident leave period.
The District also argues that Gil is not entitled to mandamus relief because she resigned from her job, and accordingly she can only sue for breach of contract. We need not address this issue because the District did not raise it before the trial court, and on appeal raised it for the first time in its reply brief. Under these circumstances, we conclude the issue is forfeited. (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1064, fn. 2; Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) In any event, we note that in Tevis, supra, 43 Cal.2d at pages 192, 196, 198-199, the court permitted former employees to pursue a mandamus action for previously-accumulated statutory vacation pay. Further, unlike the circumstances discussed in the case cited by the District (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330), a right to already-accrued industrial accident leave is not contingent on the employee's right to reinstatement to his or her position. (See id. at pp. 344-345 [because backpay is dependent on reinstatement, employee who has no right to reinstatement should pursue monetary claim through damages action for breach of contract].)
In its reply brief the District additionally asserts Gil cannot challenge her suspension on appeal because she did not challenge it in her writ petition, and she cannot raise a procedural challenge to her suspension because she has now resigned. In her writ petition, Gil challenged the District's decision to place her on unpaid administrative leave, which denied her the industrial accident leave benefits. Thus, her writ petition clearly challenged her suspension—i.e., her placement on administrative leave without payment of her leave benefits. Further, the fact that she decided to retire does not alter her right to seek the leave benefits owed to her before her retirement date.
The trial court properly ordered the District to pay Gil the industrial accident leave benefits as prescribed in section 45192.
DISPOSITION
The judgment is affirmed. Appellants to pay respondents' costs on appeal.
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HALLER, J.
WE CONCUR:
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MCCONNELL, P. J.
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MCINTYRE, J.