Plaintiff was injured on the job, and a healthcare provider concluded he should be medically retired. However, Defendant denied Plaintiff’s application for disability retirement. Plaintiff sued, alleging a single cause of action for FEHA disability discrimination. The trial court granted summary judgment for Defendant because disability requirement did not qualify as a term, condition, or privilege of Plaintiff’s employment, and FEHA was not the “appropriate statutory vehicle” for pursuing Plaintiff’s claim. Plaintiff appealed.

The Court of Appeal affirmed the summary judgment against Plaintiff. Citing Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 10 1150, 1162, it held that denial of disability retirement does not affect a current employee and thus is not an adverse employment action under FEHA.  Furthermore, under Green v. State of California (2007) 42 Cal.4th 254, Plaintiff was not a “qualified individual” under FEHA because he could not perform his essential job duties. While the Court of Appeal agreed the trial court erred in suggesting Plaintiff could have filed a writ of administrative mandamus directly, it held this error did not warrant reversal. The court noted that Plaintiff could have appealed the denial to an administrative law judge and then, if necessary, filed a writ. The court rejected Plaintiff’s argument that mandamus was inadequate due to the lack of attorney’s fees.

Full opinion

Plaintiffs, train dispatchers, sued Defendant for unpaid wages. After a Berman hearing where their claims were denied, they prevailed in a bench trial. The trial court awarded them $200,000 in attorney’s fees and costs. Defendant appealed, arguing that § 98.2(c) only authorizes fees against unsuccessful appellants.

The Court of Appeal affirmed the award of fees and costs, following Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363. It rejected Defendant’s argument that the superior court proceeding was a continuation of the administrative remedy, finding it to be an independent “action” or “civil action” under §§ 218.5, 226, and 119. The court distinguished this case from Sampson v. Parking Service 2000 Com, Inc. (2004) 117 Cal.App.4th 212, where the employee prevailed at the Berman hearing and the employer unsuccessfully pursued a trial de novo. It also declined to consider dicta from Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 and OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111 in support of Defendant’s arguments.

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Plaintiff, a deputy sheriff with a history of misconduct, was placed on leave in 2015 pending the results of Defendant’s investigation. In 2017, Defendant attempted to discharge him, but the trial court granted Plaintiff’s petition for writ of mandate, finding the statute of limitations had expired. Defendant reinstated Plaintiff but assigned him a less desirable position. Despite scoring high on the sergeant’s exam, Plaintiff was not promoted. He again petitioned for writ of mandate, alleging Defendant improperly relied on the time-barred 2015 investigation. The trial court denied the petition, rejecting Plaintiff’s argument that a burden-shifting test should apply and ruling that Plaintiff’s evidence was insufficient to establish liability. Plaintiff appealed.

The Court of Appeal affirmed. Plaintiff argued the trial court should have applied the McDonnell Douglas framework because confidentiality agreements hindered his ability to prove his case. The court rejected this argument, finding Plaintiff did not allege discrimination and that his situation was not analogous to discrimination. The court also noted that Plaintiff did not seek discovery on the issue, had access to circumstantial evidence, and that applying the McDonnell Douglas framework to similar matters would be contrary to the public interest.

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Plaintiff, an LAPD officer, refused to sign a notice acknowledging a city ordinance requiring employee compliance with its COVID-19 vaccination policy and notified supervisors of her refusal to be vaccinated. She was relieved of duty pending an administrative hearing then terminated. Plaintiff filed for writ of mandate. The trial court found that Plaintiff’s refusal to test for COVID-19 did not violate the conditions of her employment, because Defendant required employees to pay for the testing in violation of Lab. Code § 2802. The trial court also found Plaintiff was entitled to back pay due to Defendant’s Skelly violations. However, the trial court upheld Plaintiff’s termination, ruling that her refusal to be vaccinated or sign the Notice violated her employment conditions. 

Plaintiff appealed, and the Court of Appeal affirmed the trial court’s judgment against Plaintiff. It held that Plaintiff forfeited her argument that she was terminated for not signing the notice, rather than for violating the ordinance, by failing to raise it at trial. Regardless, the court found her stated refusal to be vaccinated demonstrated an unwillingness to comply with the ordinance. The court also rejected Plaintiff’s argument that termination was too harsh a penalty under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, as she failed to argue her conduct was not severe or cite relevant authority. Finally, the court held that the Skelly violation did not require reinstatement, relying on Barber v. State Personnel Board (1975) 18 Cal.3d 395 and noting that Plaintiff cited no authority supporting reinstatement as a remedy for a due process violation.

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Defendant placed Plaintiff, a police officer, on leave after he was charged with sexual assault. Although a jury acquitted him, Defendant issued a Notice of Intent to Terminate Plaintiff based on its internal investigation. An arbitrator found that Defendant failed to prove the alleged violations and recommended reinstatement, but the city manager upheld the termination. The trial court then denied Plaintiff’s petition for a writ of mandate, finding the parties’ MOU gave the city manager final authority to terminate Plaintiff. Plaintiff appealed.

On appeal, the Court of Appeal affirmed the trial court’s judgment against Plaintiff, finding no due process violation. Following National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279, the court held that “The language of the MOU, if clear and explicit” should govern its interpretation. It rejected Plaintiff’s argument that the MOU required the city manager to defer to the arbitrator’s evidentiary findings, concluding this interpretation would improperly alter the agreement. 

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In 2012, Plaintiff applied for a reduced-age annuity based on estimated income. He did not inform Defendant when his actual income exceeded that estimate. In 2013, Defendant notified Plaintiff that it had recalculated his annuity based on his actual income. Defendant sent similar notices in 2014 and 2015. In 2016, Defendant demanded repayment for overpayments from August 2012 to December 2015. The Railroad Retirement Board (RRB) denied Plaintiff’s waiver request, affirming its decision on administrative appeal. Plaintiff filed a petition for review, which the Ninth Circuit granted.

The Ninth Circuit affirmed the RRB’s finding that Plaintiff was at fault for overpayments from August 2012 to June 2, 2013, because he should have reported his higher income. However, the court held that Plaintiff was “without fault” for overpayments after June 3, 2013, because Defendant continued to overpay him despite notifying him of the recalculation. The court found that requiring repayment for the period after June 3, 2013 could be contrary to the purpose of the Railroad Retirement Act, given Plaintiff’s age, health, and financial difficulties. The case was remanded to the RRB for further consideration.

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In 2014, Plaintiff hired a subcontractor for a public school construction project. In 2015, the DLSE assessed penalties on Plaintiff, finding the subcontractor failed to employ apprentices and violated § 1777.5. An administrative panel found Plaintiff knew of the violations and was liable. Plaintiff sought a writ of mandate, alleging abuse of discretion and denial of due process. The trial court denied the petition, and Plaintiff appealed.

On appeal, the Court of Appeal affirmed. It found substantial evidence supported Plaintiff’s knowledge of the violations and rejected Plaintiff’s argument that knowledge alone was insufficient for liability under § 1777.7(d). The court also rejected Plaintiff’s due process claim, finding the DLSE notices adequately informed Plaintiff of potential joint and several liability. The absence of a witness at trial did not violate due process because Plaintiff failed to enforce its subpoena or request a continuance.

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After temporarily transferring to a different department due to friction with her manager, Defendant informed plaintiff that her new position could become permanent but that her pay would be reduced. Alternatively, she could “return to the status quo at the [old position] with her same title and with her same pay” but would be subject to a “pending action” that could lead to her termination (prior to the transfer, defendant drafted a “Letter of Intent to Dismiss” but did not issue it). Plaintiff “voluntarily chose [the] lower paying position.”

Plaintiff contended she was entitled to a Skelly hearing before “having to choose between suffering a decrease in pay rate and grade (demotion) or a dismissal.” The court found, however, that it was Plaintiff’s prerogative to “risk termination and receive a Skelly hearing” or “voluntarily accept the transfer and not have a Skelly hearing… the law did not entitle her to both.” Ruling in favor of Plaintiff “would dramatically expand Skelly” because “the proposition underlying her argument [is] that employees are afforded due process as soon as an employer considers an adverse action.” The court also cited the ruling in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1115 that “due process is not required where ‘the employee ‘has voluntarily surrendered the property interest upon whose [sic] existence the procedural rights depend.’ ”

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