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Mestre v. Ford

California Court of Appeals, First District, Fifth Division
Mar 27, 2008
No. A119097 (Cal. Ct. App. Mar. 27, 2008)

Opinion


JULIO MESTRE, Petitioner and Appellant, v. NATHANIEL FORD, SR., Executive Director of the San Francisco Municipal Transportation Agency, et al., Respondents. A119097 California Court of Appeal, First District, Fifth Division March 27, 2008

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. CPF-06-506696

NEEDHAM, J.

Petitioner Julio Mestre was terminated from his position as a bus driver for respondent San Francisco Metropolitan Transportation Agency (MTA) based on his commission of a sexual battery while on duty. He filed a grievance to challenge his termination, which proceeded through the required levels of administrative review and was ultimately denied by respondent Nathaniel Ford, Sr., the Executive Director of MTA. Petitioner sought a writ of administrative mandamus under Code of Civil Procedure section 1094.5, arguing that (1) the grievance should have been granted based on MTA’s failure to comply with the time limits for the Step 4 level of administrative review; (2) he was denied procedural due process; and (3) no substantial evidence supported a finding that petitioner had committed the acts of which he was accused. We affirm the trial court’s order denying the petition.

BACKGROUND

Petitioner was employed as a bus driver for MTA and is a member of the Transport Workers Union of America, Local 250-A. The relationship between union members and MTA is governed by a Memorandum of Understanding (MOU), which describes the procedure for resolving disciplinary actions taken by MTA against its transit worker employees and employee grievances filed in response thereto.

The MOU establishes four levels of administrative review for an employee grievance. When the grievance is a challenge to a proposed disciplinary dismissal from employment, it must be initiated at Step 3, at which point a hearing is conducted by the Deputy General Manager of Human Resources. If the employee is unsuccessful at that level of review, he or she may appeal to Step 4, which requires an arbitration hearing before an impartial hearing officer, who must issue a written decision. MTA’s Executive Director must then accept, modify or reject the arbitrator’s recommendation.

Paragraph 315 of the MOU describes the procedure for a Step 4 review as follows: “The Union or the grievant may, at any time within seven (7) days after the mailing of the Step 3 decision, appeal from such decision to the impartial hearing officer by filing written notice of the appeal with the Deputy General Manager, Human Resources or designee and impartial hearing officer, except where the appeal is from a proposed disciplinary dismissal, in which event the appeal must be initiated within one (1) day of the Step 3 decision. The impartial hearing officer shall conduct a hearing on the grievance or grievances submitted to him/her within ten (10) days after receipt by him/her, except when the grievance involves a proposed disciplinary dismissal. . . in which event the hearing shall begin within ten (10) calendar days. . . .” Under paragraph 316 of the MOU, “The hearing officer’s report shall contain a factual summary of the grievance or grievances, the evidence, and his/her decision. The MTA Executive Director shall exercise his/her discretion in accepting, modifying or rejecting the recommended decision.”

Petitioner was suspended from work after he failed to return to his shift on July 2, 2004. He was placed on unpaid administrative leave so that MTA could investigate allegations that he had sexually molested a patient at Laguna Honda Hospital while on duty. MTA notified petitioner that it intended to dismiss him from his position. A hearing under Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly) was held before Operations Manager Mary Travis-Allen, who recommended dismissing petitioner from employment. Petitioner appealed this decision and, after several continuances, received a Step 3 hearing on January 25, 2005.

On February 2, 2005, the Step 3 hearing officer issued a decision upholding the recommendation that petitioner be dismissed from his employment. On February 4, the union filed a notice of appeal on petitioner’s behalf seeking a Step 4 hearing. On March 11, 2005, MTA Human Resources Manager Michael Casey wrote to petitioner’s counsel listing six possible dates for the Step 4 arbitration. Counsel wrote back, arguing that MTA was required to grant petitioner’s grievance because it had not commenced the Step 4 hearing within ten days, as required by the MOU. Counsel relied on paragraph 315 of the MOU, which provides, “The impartial hearing officer shall conduct a hearing on the grievance or grievances submitted to him/her within ten (10) days after receipt by him/her, except when the grievance involves a proposed disciplinary dismissal . . . in which event the hearing shall begin within ten (10) calendar days.” Under paragraph 309, “If management fails to meet the time limits at any point in the procedure, the grievance will be granted.”

MTA refused to grant the grievance on this basis and disputed the timeliness of petitioner’s Step 4 appeal. Eventually, the parties agreed to proceed to a Step 4 hearing at which MTA would not contest the timeliness of petitioner’s appeal and the hearing officer would decide whether the failure to hold a hearing within ten days required the granting of the grievance.

The Step 4 arbitration hearing was held on July 10, 2006, before arbitrator Alexander Cohn. Petitioner submitted the MOU and the disciplinary administrative record, the parties having stipulated that the latter documents would be considered solely to establish the procedural history of the case, and not to prove the substance of the charges. MTA called two witnesses: Regina Aguirre, an eyewitness to the sexual battery of which petitioner was accused, and MTA Operations Manager Mary Travis-Allen, who had presided over petitioner’s Skelly hearing and had recommended his dismissal from employment.

Aguirre testified that she was a bed patient at Laguna Honda Hospital on July 1, 2004, and was sharing a room with M.H. Sometime between 11:00 and 11:45 a.m., a man in a uniform walked into the room and began to touch M.H.’s breasts, legs and thighs. He continued for about 40-45 minutes, during which time Aguire was unable to get the attention of any nurses. When M.H.’s caregiver arrived later that evening, Aguirre told him what had happened and he reported the incident to police. An officer came to the room the next day to take Aguirre’s statement, during which time the same man returned to the room. Aguirre identified him and he was arrested.

Travis-Allen testified that on July 1, 2004, petitioner was on duty and was on paid “standby” between 10:17 a.m. and 11:00 a.m. She had recommended petitioner’s discharge based on her review of a police report containing a statement by petitioner in which he admitted being present at Laguna Honda Hospital at about 10:45 a.m.

In addition to the evidence presented at the arbitration hearing, MTA filed a post-hearing brief informing the arbitrator that petitioner had pled no contest to misdemeanor sexual battery and was placed on probation on July 15, 2005. (See Evid. Code, § 452, subd. (d).)

The arbitrator issued a decision recommending that petitioner’s grievance be granted. The decision concluded that while the merits were “clear and obvious under a preponderant evidence standard,” the MOU required granting the grievance as a sanction for failing to hold the arbitration within ten days of petitioner’s appeal. The Executive Director of MTA rejected this recommendation and issued a decision upholding the dismissal of petitioner from his position.

Petitioner challenged the Executive Director’s decision by filing a petition for writ of administrative mandamus in superior court. The court denied the petition and rejected a subsequent motion to vacate the denial of the writ.

DISCUSSION

Timeliness of Step 4 Hearing

We first consider petitioner’s argument that the Executive Director should have granted his grievance because the Step 4 arbitration was not conducted within mandatory time requirements established by the MOU. Because the procedural facts are undisputed and the issue involves the proper application of a contractual provision in the MOU, the issue is one of law that we review independently. (Carrey v. Department Of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.)

Petitioner claims that under the MOU, MTA was required to commence the Step 4 arbitration within 10 days of receiving his notice of appeal from the Step 3 review on February 4, 2005, yet it did not even contact him about scheduling a hearing until March 11. Petitioner notes that under the MOU, “The time limits in the grievance procedure will be strictly adhered to,” and “If management fails to meet the time limits at any point in the procedure, the grievance will be granted. . . .” (¶ ¶ 306, 309.) MTA responds that even assuming the time limits in the MOU are mandatory, the Executive Director has the discretion to excuse a failure to comply under paragraph 316, which provides, “The MTA Executive Director shall exercise his/her discretion in accepting, modifying or rejecting the recommended decision.”

In support of his argument that noncompliance with the 10-day period requires a granting of his grievance, petitioner relies primarily on case law discussing the differences between “directory” and “mandatory” statutory time limits. Stated simply, a time limit is “mandatory” if its breach invalidates the resulting action; it is “directory” if it does not. (Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 99.) Provisions establishing time limits for acts to be done in an administrative context are generally considered to be directory, rather than mandatory and jurisdictional, unless a contrary intent is clearly expressed. (Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 207.) Thus, a time limit is usually treated as directory unless a consequence or a penalty is provided for the failure to comply. (Ibid.)

The MOU does provide for penalties when either MTA or a grievant violates its time provisions. We will assume without deciding that this renders the time limits mandatory, at least insofar as they apply to the parties to the grievance. But the 10-day time limit for conducting a Step 4 arbitration is not placed on the parties, it is placed on the hearing officer designated to conduct the arbitration. Paragraph 315 of the MOU provides: “The impartial hearing officer shall conduct a hearing on the grievance or grievances submitted to him/her within ten (10) days after receipt by him/her except when the grievance includes a proposed disciplinary dismissal, in which event the hearing shall begin within ten (10) calendar days.” (Italics added.) The impartial hearing officer is not an MTA employee, and we cannot impute to MTA the ability to control the hearing officer’s schedule. This is not a case subject to the penalty clause set forth in paragraph 309 of the MOU, which requires the granting of an employee’s grievance “[i]f management fails to meet the time limits at any point in the procedure. . . .” (Italics added.) We therefore reject the premise on which petitioner relies to claim that the 10-day period for holding an arbitration was mandatory and that its violation required the granting of his grievance.

Paragraph 320 of the MOU provides, “The MTA Executive Director or designee and the Union shall endeavor to agree upon an impartial hearing officer to serve for an agreed period of time. Should these parties fail to reach such agreement within twenty (20) days after the execution of the agreement, then, upon the written request of either party, the American Arbitration Association shall have the authority to appoint an impartial hearing officer pursuant to its rules, who shall serve for an agreed period of time. The cost of the services of the impartial hearing officer shall be shared equally by the Union and MUNI, except that if the grievant reaches Step 4 without Union participation, the cost shall be shared by the grievant and MUNI. In the event the grievant does not desire to share in the cost, Step 4 shall be bypassed.”

We are not persuaded by petitioner’s proposed interpretation of paragraph 315 of the MOU. He argues that with most types of grievances, an arbitration must be held within 10 days of the time it is submitted to the hearing officer (“The impartial hearing officer shall conduct a hearing on the grievance or grievances submitted to him/her within ten (10) days after receipt by him/her. . . .”), but that when, as here, the grievance involves a proposed dismissal for disciplinary reasons, the hearing must be held within 10 days of the date the appeal was filed, regardless of when it was submitted to the arbitrator (“. . . except when the grievance involves a proposed disciplinary dismissal, in which event the hearing shall begin within ten (10) calendar days.”). In neither instance, however, does the MOU expressly place the duty to hold the hearing on MTA, such that the penalty clause of paragraph 309 is triggered.

Petitioner argues that even if the MOU ostensibly places the duty to timely hold the arbitration on the hearing officer, that duty should be placed on MTA in this case because MTA took the initiative in contacting the hearing officer and securing a date for the arbitration. MTA’s actions do not change the language of the MOU, which we consider for the sole purpose of determining whether management failed to meet a time limit set forth in the agreement, such that the grievance must be granted as provided in paragraph 309.

Finally, we do not agree with petitioner that MTA is estopped from arguing that the duty to set a hearing falls on the hearing officer and that paragraph 309 does not require the granting of an employee grievance when there is a failure to timely hold an arbitration hearing. It is true that MTA did not offer this interpretation of the MOU below, and did so on appeal only in response to this court’s request for supplemental briefing. However, “the rule that on appeal a litigant may not argue theories for the first time does not apply to pure questions of law.’ ” (Kramer v. Intuit, Inc. (2004) 121 Cal.App.4th 574, 578.) The interpretation of the MOU is a question of law. (Spellman v. Securities, Annuities & Ins. Services, Inc. (1992) 8 Cal.App.4th 452, 457.)

We therefore deny petitioner’s motion to bar new factual and legal theories raised by respondents, filed March 11, 2008.

Absent any violation of a mandatory time period by MTA, the Executive Director had broad discretion, under express terms of the MOU, to accept, modify or reject the arbitrator’s decision notwithstanding delays in its commencement. There was no abuse of that discretion here. Notably, petitioner presented no affirmative evidence at the Step 4 arbitration, and had previously sought a number of continuances pending the resolution of his criminal case. He has not established that the result of the arbitration would have been different if it had been held earlier. In the absence of any showing of prejudice to petitioner’s ability to present his case, we cannot say the Director acted irrationally or arbitrarily in sustaining the dismissal based on the commission of a sexual battery while on duty, and in rejecting the argument that petitioner’s grievance should have been granted because the arbitration was not timely held. (See California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 949 [discussing abuse-of-discretion standard].)

Given our resolution of this issue, we need not address MTA’s argument that the Director has the discretion to overrule even a mandatory time limit when ruling on an employee’s grievance.

Substantial Evidence

Petitioner argues that assuming MTA was entitled to reach the merits of his grievance, he should prevail because the evidence in the administrative record was insufficient to establish that he was the person who sexually battered M.H. We disagree.

When a petition for administrative mandamus involves a vested fundamental right, such as the right to public employment, “the superior court exercises its independent judgment upon the evidence disclosed in a limited trial de novo in which the court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence.” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056-1057.) On appeal, we focus on the decision of the trial court, not the agency, and review its findings for substantial evidence. (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 388, fn. 9.)

The administrative record considered by the trial court included the transcript of the Step 4 arbitration, at which Regina Aguirre was called as a witness. Aguirre testified that on July 1, 2004, she saw a uniformed man enter her room at Laguna Honda Hospital and touch her roommate H.M. on the breasts, legs and thighs. She identified the man to police the following day (July 2, 2004) and he was arrested. Aguirre did not identify petitioner as the assailant when she testified at the Step 4 hearing, but the administrative record contained a police report prepared by the officer who arrested petitioner at Laguna Honda Hospital on July 2 after he was identified by Aguirre. The report states that petitioner was the man arrested and also contained a signed statement by petitioner, in which he denied the sexual battery, but admitted visiting Laguna Honda Hospital on July 1 and 2.

A police officer’s report is admissible under Evidence Code section 1280 if it is based upon the observations of a public employee who had a duty to observe facts and report and record them correctly. (E.g., Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1374-1375.) In this case, the officer’s statement in the police report that he arrested petitioner in the victim’s room at Laguna Honda Hospital was admissible to prove that fact. Additionally, party admissions contained in a police report are admissible, and appellant’s statement could be considered by the trial court for its truth. (Lake v. Reed (1997) 16 Cal.4th 448, 461.) These admissible portions of the police report identify petitioner as the man arrested in the victim’s room the day after the assault, and, when considered in conjunction with Aguirre’s testimony at the arbitration hearing, constituted compelling evidence that petitioner committed the acts alleged.

The police report also contained inadmissible hearsay that was based on the statements of third party witnesses. (See, e.g., Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205-1206.) We do not consider those inadmissible portions of the report.

Petitioner argues that the administrative record contains no admissible evidence of his identity because the parties stipulated at the Step 4 arbitration that documentary evidence from his disciplinary proceeding would be considered for the limited purpose of establishing a timeline, and not for the merits of the case. This stipulation did not purport to limit the scope of review by the Executive Director or the superior court in the mandamus proceeding. We will not construe it to limit the ability of a superior court to consider the police report when that report had been considered at proceedings prior to the Step 4 arbitration, had been relied upon by Travis-Allen in recommending petitioner’s termination, and was otherwise admissible and equally available to both parties. Nor do we agree that the superior court’s review was limited to the Step 4 arbitration itself, and should have ignored the other administrative proceedings conducted by MTA. Although petitioner argues that the consideration of other matters in the administrative record would have deprived him of notice and due process, he does not explain how he could have been prejudiced by the consideration of such documents, which were equally available to him and to MTA.

Defects in Director’s Decision

Petitioner argues that the Executive Director’s decision was procedurally flawed because it did not include specific factual and legal findings supporting his rejection of the arbitrator’s recommendation. Because this case involves a vested fundamental right requiring the trial court to independently weigh the evidence presented, we review the decision of the court rather than the administrative agency. (See Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1180-1181.) Any procedural defect in the Director’s decision is irrelevant to our analysis.

In any event, the Executive Director gave a reason for rejecting the arbitrator’s recommendation and sustaining the decision to terminate petitioner: “I agree[] with the arbitrator’s opinion that the evidence supported the finding that Mr. Mestre violated the Department’s rules and regulations as specified in the charges by inappropriately fondling an incapacitated patient at Laguna Honda Hospital while on duty and in uniform.” He also stated, “Specifically, I determined that based on the facts and circumstances that any delay in holding a hearing did not justify returning Mr. Mestre to duty, particularly given the seriousness of these charges.” Administrative findings made by a layperson “need not be stated with the formality required in judicial proceedings.” (Swars v. Council of City of Vallejo (1949) 33 Cal.2d 867, 872.)

Violation of Due Process

Petitioner contends that his right to due process was violated because the Step 4 arbitration hearing did not commence until 17 months after he filed his appeal from the Step 3 level of review. MTA’s decision to terminate petitioner proceeded through two levels of review before the arbitration, and he offers no explanation as to how the delay in a final arbitration hearing (which was required only by virtue of a contractual agreement between MTA and the union) prejudiced the outcome of the proceeding or deprived him of an opportunity to be heard.

Motion to Vacate

Petitioner argues that the trial court should have granted his motion to vacate the order denying his petition for a writ of administrative mandamus. Because the motion to vacate was based on grounds already rejected, the trial court did not abuse its discretion in denying the motion. (See National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 524.)

Attorney Fees

Our conclusion that MTA had just cause to dismiss petitioner from employment and did not abuse its discretion in doing so renders moot petitioner’s claim that he was entitled to attorney fees under Government Code section 800 based on MTA’s allegedly arbitrary and capricious conduct.

DISPOSITION

The judgment (order denying petition for writ of administrative mandamus) is affirmed. Costs are awarded to respondents.

We concur.JONES, P. J., STEVENS, J.*


Summaries of

Mestre v. Ford

California Court of Appeals, First District, Fifth Division
Mar 27, 2008
No. A119097 (Cal. Ct. App. Mar. 27, 2008)
Case details for

Mestre v. Ford

Case Details

Full title:JULIO MESTRE, Petitioner and Appellant, v. NATHANIEL FORD, SR., Executive…

Court:California Court of Appeals, First District, Fifth Division

Date published: Mar 27, 2008

Citations

No. A119097 (Cal. Ct. App. Mar. 27, 2008)