Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. David P. Yaffee, Judge, Los Angeles County Super. Ct. No. BS102260.
Dan Mariscal, in pro. per., for Plaintiff and Appellant.
Martin & Martin, Areva D. Martin, Chike G. Onyia, and Jenny J. Rim for Defendant and Respondent and for Real Party In Interest and Respondent.
CHAVEZ, J.
Plaintiff and appellant Dan Mariscal (plaintiff) filed an unfair employee relations practice claim against the City of Los Angeles Department of Public Works (the Department) for purportedly denying him a promotion in retaliation for engaging in protected activity. Plaintiff alleged that he was denied certification as an eligible candidate for a supervisory position because of his activities as a union shop steward representing employees in grievance claims against the Department. Plaintiff further alleged that article X, section 1010(f) of the Los Angeles City Charter (City Charter) required the Department to certify him for the position because his name appeared on a list of eligible candidates at least three times. The City of Los Angeles Employee Relations Board dismissed plaintiff’s claim. Plaintiff petitioned for administrative mandamus and asked the trial court to interpret section 1010 (f) of the City Charter to require plaintiff’s certification. The trial court denied plaintiff’s petition, and this appeal followed.
We affirm the judgment.
BACKGROUND
Plaintiff is a full time employee of the Department, where he has worked for the past 16 years. For at least 14 years, plaintiff has been a shop steward for the Service Employees International Union, Local 347, and has represented employees in grievances, disciplinary actions, and unfair employee relations practices claims. Plaintiff took and passed the Personnel Department’s examination for a street services supervisor position three times, and was placed on a list of eligible candidates each time.
In June 2005, the Department requested the certification of eligible candidates to fill eight vacancies. The Certification Unit of the Personnel Department certified 15 names from the list of eligible candidates pursuant to section 1010 of the City Charter. Fifteen eligible candidates were considered, and the Department filled all eight vacancies.
Los Angeles City Charter, article X, section 1010 provides in part: “(a) Three Highest Whole Scores. The appointing authority of a department shall notify the board when one or more classified positions are to be filled. The general manager of the Personnel Department shall certify to the appointing authority the names and addresses of those eligibles having the three highest whole scores on the register for the class to which the positions belong. The appointing authority shall fill the positions from the names certified by the general manager within 60 days from the date of certification. Certified test scores shall be made public. [¶] . . . [¶] (c) Extra Certifications. If there are sufficient eligibles available, the general manager of the Personnel Department shall certify at least five names and addresses more than the number of positions to be filled. If there are less than five available eligibles more than the number of positions to be filled within a range of three whole scores, the general manager of the Personnel Department shall certify the names and addresses of all available eligibles within such additional number of whole scores as necessary to provide a minimum of five available eligibles more than the number of positions to be filled. [¶] . . . [¶] (e) Order of List. Whenever the general manager of the Personnel Department certifies the names and addresses of eligible candidates, the names shall be listed in the order of the whole scores achieved, except that within the range of each single whole score the names of eligibles shall be listed in random order.”
The 15 eligible candidates certified by the Department received scores ranging from 103 to 99 – one with a score of 103, three with a score of 102, three with a score of 101, five with a score of 100, and three with a score of 99. Plaintiff received a score of 90. Plaintiff, along with 27 other eligible candidates, did not receive certification.
A. Administrative Proceedings
On October 18, 2005, Plaintiff filed an unfair employee relations practices claim against the Department, claiming he was denied certification in retaliation for his activities as a union shop steward. Plaintiff further alleged that the Department’s failure to include him in the certification process violated section 1010(f) of the City Charter, which states: “(f) Certification at Least Three Times. Each candidate, unless he or she is sooner appointed, or otherwise lawfully ceases to be a candidate, shall be certified for appointment in the class for which he or she is eligible not less than three times.”
Plaintiff’s claim was heard by the Employee Relations Board for the City of Los Angeles (the Board) on December 19, 2005. Plaintiff argued at the hearing that section 1010(f) of the City Charter required the Department to certify plaintiff for the supervisory position. Plaintiff also argued that the Department had knowledge of his protected union activities, and that the failure to certify him for the promotion was in retaliation for engaging in those activities.
The Department argued that the Civil Service Commission for the City of Los Angeles is responsible for promulgating rules interpreting article X of the City Charter, and that the Department of Personnel is responsible for enforcing those rules. The Department maintained that plaintiff’s claims regarding section 1010(f) of the City Charter should be directed to those agencies. With regard to plaintiff’s unfair employee relations practices claim, the Department argued that plaintiff had presented no evidence of retaliation.
At the hearing, Board members asked plaintiff whether section 1010(f) of the City Charter had been interpreted to permit certification of an eligible candidate regardless of the candidate’s ranking on the list of eligible candidates. Plaintiff responded that there had been no interpretations of section 1010(f), but that the “natural meaning” of the words required certification of persons whose name had appeared on a list of eligible candidates at least three times. The Board dismissed plaintiff’s claim.
B. Mandamus Proceedings
Plaintiff filed a petition for administrative mandamus in which he alleged that the Board had abused its discretion by failing to apply the “most natural meaning” to section 1010(f) of the City Charter, and that he was denied due process and a fair hearing. After the July 10, 2006 hearing on plaintiff’s petition, the trial court concluded that plaintiff had effectively abandoned his unfair labor practices claim against the Department by failing to produce any evidence of retaliation, and that the Board’s dismissal of that claim was not an abuse of discretion. The trial court further concluded that it lacked jurisdiction to interpret section 1010(f) of the City Charter because plaintiff had failed to exhaust his administrative remedies by seeking an interpretation from the Los Angeles Civil Service Commission. The trial court denied plaintiff’s petition for writ of mandate, and plaintiff filed this appeal.
DISCUSSION
I. Standard of Review
When reviewing an administrative decision in a mandamus proceeding, the trial court exercises its independent judgment to determine whether due process requirements were met and whether the agency’s findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51.) An appellate court must sustain the trial court’s factual findings if substantial evidence supports them, resolving all conflicts in favor of the prevailing party, and giving that party the benefit of every reasonable inference in support of the judgment. (Kazensky, at p. 52.)
II. Unfair Labor Practices Claim
Plaintiff contends the trial court abused its discretion by concluding that plaintiff’s unfair labor practices claim was properly dismissed because there was no evidence of retaliation. Substantial evidence supports the trial court’s determination.
To establish a prima facie case of retaliation, “the plaintiff must show (1) he engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. [Citations.]” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) Once a prima facie case has been established, the burden then shifts to the employer to offer a legitimate, nonretaliatory explanation for its conduct. If the employer offers a legitimate, nonretaliatory reason, the burden then shifts back to the plaintiff to show that the employer’s proffered explanation is merely a pretext. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
Substantial evidence supports the trial court’s determination that plaintiff failed to establish a prima facie case of retaliation. Plaintiff failed to present any evidence of a causal link between his union activities and the failure to certify him for the supervisory position he wished to obtain. Notwithstanding the absence of a prima facie showing by plaintiff, the Department presented a legitimate, nonretaliatory explanation of its conduct – the eligible candidates certified for the position all had scores substantially higher than plaintiff’s. Plaintiff failed to demonstrate that this explanation was merely a pretext. The trial court did not err by denying plaintiff’s petition for writ of mandate with regard to the unfair labor practices claim.
III. Failure to Exhaust Administrative Remedies
Plaintiff contends the trial court erred by refusing to interpret section 1010(f) of the City Charter. He maintains that such an interpretation was necessary in order to determine whether or not he suffered an adverse employment action. The trial court denied plaintiff’s petition for writ of mandate to interpret section 1010(f) of the City Charter on the ground that plaintiff failed to exhaust his administrative remedies by seeking such an interpretation from the Board of Civil Service Commissioners.
“Under the doctrine of administrative exhaustion, the long-standing generalrule is this: ‘where an adequate administrative remedy is provided by statute, resort to that forum is a “jurisdictional” prerequisite to judicial consideration of the claim.’ [Citations.] Put another way: ‘In the context of administrative proceedings, a controversy is not ripe for adjudication until the administrative process is completed and the agency makes a final decision that results in a direct and immediate impact on the parties.’ [Citation.] . . . [¶] ‘The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).’ [Citation.] . . . [¶] The doctrine ‘is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all courts.’ [Citation.] Until an available ‘administrative procedure has been invoked and completed, there is nothing that the . . . court may review; it cannot interfere in the intermediate stages of the proceeding.’ [Citation.] For that reason, ‘the failure to exhaust administrative remedies prevents appellant from seeking relief through administrative mandamus (Code Civ. Proc., § 1094.5), which provides judicial review of final administrative proceedings.’ [Citation.]” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 274-275.)
Article X, section 1004 of the City Charter vests the Board of Civil Service Commissioners of the City of Los Angeles with the authority to “promulgate civil service rules to carry out the purposes of this Article in accordance with applicable law.” It further states: “The civil service rules shall provide for, among other subjects, examinations, leaves of absence, transfers, temporary appointments, disciplinary hearings, layoffs, and procedures for the review and appeal of determinations by the general manager of the Personnel Department with respect to the civil service provisions of the Charter.” (City Charter, art. X, . § 1004.) Rule 5, section 5.22 of the Rules of the Board of Civil Service Commissioners provides: “An eligible whose name is withheld from certification for any reason may appeal to the Commission.” Thus, the Board of Civil Service Commissioners is the proper forum for plaintiff’s claim that his name was improperly withheld from certification pursuant to section 1010(f) of the City Charter. The trial court did not err by denying plaintiff’s petition for writ of mandate for failing to exhaust his administrative remedies.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.