Friedrichs v. California Teachers Association: U.S. Supreme Court Deadlocks on Constitutionality of Public Employee Union "Agency Fees"

Just a quick word on Friedrichs v. California Teachers Association (SCOTUS 3/29/16), in which the U.S. Supreme Court appeared set to hold that forcing a public employee to pay for a union's non-political activities, such as collective bargaining, violates the employee's First Amendment rights. 

The death of Justic Scalia in February changed the calculus, and the Court announced on Monday that it is equally divided on the issue. In that situation, which we undoubtedly will see more of until Justice Scalia is replaced, the decision of the lower court stands. In Friedrichs, the Ninth Circuit held that under existing U.S. Supreme Court precedent, forcing public employees to pay such agency fees does not violate their First Amendment rights. 

The Court's per curiam opinion is here, but I'll save you the trouble of clicking on it. It reads, in its entirety: 

The judgment is affirmed by an equally divided Court.

As the poet said, "Strange days indeed." 

The SCOTUSblog page for Friedrichs is here. 

Astorga v. Retirement Board: Court Rules on Effective Date of Public Employee's Disability Retirement

Just a quick word on Astorga v. Retirement Board of the Santa Barbara County Employees Retirement System (Cal.App. 2/2/16), which concerns the effective date of a public employee's disability retirement.

Sara Astorga applied for retirement disability. To maintain health insurance pending the decision on her application, she elected to remain on the payroll and receive her accrued sick leave, vacation and holiday pay in small but regular increments.

The Retirement Board of the Santa Barbara County Employees Retirement System (Board) approved Astorga's disability retirement application. Government Code section 317241 states that a disability retirement may not commence until the day following the last day the applicant received "regular compensation." The Board determined the effective date of her retirement was the day after she received her last sick leave, vacation or holiday payment. It rejected her argument that the effective date should be calculated based on the day her sick leave, vacation and holiday pay balances would have been exhausted had she taken them in full rather than in smaller increments.

Astorga petitioned for a writ of mandate. (Code Civ. Proc., § 1094.5.) The trial court denied the petition, concluding that the Board correctly calculated Astorga's effective date of disability retirement. We affirm.

The opinion is available here. 

Oyama v. University of Hawaii: Ninth Circuit Affirms Summary Judgment in Public Employee First Amendment Case

In Oyama v. University of Hawaii (9th Cir. 12/29/15), a secondary education candidate applied to become a student teacher, a prerequisite for recommendation to the State of Hawaii’s teacher certification board. The University denied his application because he expressed opinions, among others, that "online child predation should be legal" and that "it would be fine" for a 12-year-old student to have a “consensual” relationship with a teacher.

The plaintiff filed suit, alleging that the University violated his rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment, and the Ninth Circuit affirmed, holding as follows: 

The University did not violate the plaintiff’s First Amendment rights "because its decision related directly to defined and established professional standards, was narrowly tailored to serve the University’s core mission of evaluating Oyama’s suitability for teaching, and reflected reasonable professional judgment." 

The University did not violate the plaintiff's Fourteenth Amendment Due Process rights because the University did not deprive him of a constitutionally protected interest, and even if it did, the University provided him with adequate process, advising him repeatedly of its concerns with his performance. The plaintiff was not entitled to a hearing because the decision  “rested on the academic judgment of school officials.”

The opinion is available here. 

Cal. DOJ v. CalPERS: Court of Appeal Rules on Public Employee Disability Retirement and Reinstatement Issues

Just to note this case for our colleagues who do public entity work.

California Department of Justice v. Board of Administration of California Public Employees’ Retirement System (Resendez) (10/13/15) --- Cal.App.4th --- discusses the following issues:

Appellant California Department of Justice (DOJ) appeals from a judgment in favor of respondents Angelita Resendez and Board of Administration of California Public Employees’ Retirement System (CalPERS) in this action concerning reinstatement to a peace officer position following disability retirement. On appeal, it is undisputed that Resendez is no longer incapacitated for duty based on the orthopedic condition that led to her disability retirement. DOJ contends: (1) in determining whether Resendez was still physically or mentally incapacitated for duty, CalPERS should have verified Resendez was not suffering from any other condition that would prevent her from meeting the minimum standards for peace officers set forth in Government Code section 10312 ; (2) DOJ does not have a mandatory duty under section 21193 to reinstate an employee that CalPERS determines is no longer incapacitated; and (3) DOJ may condition an offer of reinstatement under section 21193 on compliance with the standards of section 1031. We conclude CalPERS properly made its reinstatement determination based on the condition for which Resendez received disability retirement, DOJ has a mandatory duty to reinstate Resendez after CalPERS concludes she is no longer incapacitated, and DOJ may not require Resendez to comply with conditions prior to reinstatement. 

The opinion is available here.

Turner v. San Francisco: First Amendment Does Not Protect Employee Complaints that Are Motivated by Self-Interest, and Employee Cannot State Claim for Wrongful Termination

In Turner v. City and County of San Francisco, ___ F.3d ___ (9th Cir. 6/11/15), the plaintiff, Turner, sued the City and County of San Francisco (City), alleging that it terminated him in violation of public policy after he complained that the City improperly employed him and others as temporary exempt, rather than permanent civil service, employees. The district court dismissed the case, holding that he failed to state a claim for retaliation under the First Amendment because he had not alleged facts demonstrating that he had engaged in protected speech. Turner appealed, and the Ninth Circuit affirmed, holding that Turner's complaints were not protected by the First Amendment because they did not address a "matter of public concern." 

[A]lthough Turner’s complaint “ostensibly could invoke a matter of public concern, as it discusses civil service rules prescribed by local law, . . . Plaintiff’s voiced complaint was focused on and driven by his internal grievance.” In other words, Turner’s complaints—while potentially significant in their implications—arose primarily out of concerns for his own professional advancement, and his dissatisfaction with his status as a temporary employee.

The opinion is available here.

Lane v. Franks: Supreme Court Rules on Public Employee's First Amendment Claim

In Garcetti v. Ceballos, 547 U. S. 410 (2006), the Supreme Court of the United States held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id., at 421. Applying that rule to the facts before it, the Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected speech, and the employee could not sue his employer for alleged retaliation and violation of his Frist Amendment rights under 42 U.S.C. § 1983. Id., at 424.

In Lane v. Franks, ___ U.S. ___ (6/19/14), plaintiff Edward Lane alleged that his former employer, a public entity, terminated him in retaliation for having testified in court regarding the alleged misconduct of another employee. Lane sued under section 1983 for violation of his First Amendment rights, naming his former supervisor, Franks, in his individual capacity and his former employer's acting president, Burrow, in her official capacity.

The Supreme Court held that Lane's testimony in court was speech as a citizen on a matter of public concern and thus was protected by the First Amendment. Slip op. at 8-12. Further, the Court held that the defendants had failed to show that the government had "an adequate justification for treating the employee differently from any other member of the public" based on the government's needs as an employer. Slip op. at 12-13. Accordingly, Lane could pursue a section 1983 action against both Franks and Burrows for violation of his First Amendment rights.

The Court next considered whether Lane's action against Franks, in his individual capacity, should be dismissed on the basis of qualified immunity. The Court held that Franks was entitled to qualified immunity because he reasonably could have believed, at the time that he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. Slip op. at 13-17.

Lane v. Franks is available here.

Cornejo v. Lightbourne: Government Claims Act Presentation Not Required for Whistleblower Protection Act Claim

Cornejo v. Lightbourne (10/22/13) --- Cal.App.4th ---, addresses a number of issues arising under the California Whistleblower Protection Act (WPA). Cal. Gov. Code § 8547 et seq.

The Government Claims Act (Cal. Gov. Code § 900 et seq.) ordinarily requires a plaintiff to present a claim to a public entity before suing the entity in court, but WPA actions are not subject to this requirement. Slip op. at 5-10. State Personnel Board (Board) proceedings under the WPA fulfill every function of the Claims Act's presentation procedure, eliminating the need for the presentation procedure. Slip op. at 9. 

Because the presentation procedure does not apply in WPA cases, the Claims Act's six-month limitations period also does not apply. Slip op. at 11-12. 

A WPA plaintiff may initiate an independent judicial action after the Board's executive officer issues initial findings on a submitted administrative complaint without needing to appeal the initial findings to the Board, and such findings have no preclusive effect on any such judicial action. Slip op. at 12-13. 

The opinion is available here. 

City of Bell v. Superior Court (Rizzo): City Need Not Indemnify Former Official In Actions Alleging Theft of City Funds

Robert Rizzo deserves to have his picture in the dictionary next to the word "chutzpah." 

Robert Rizzo, the former Chief Administrative Officer of the City of Bell (City), has been sued by the City, as well as the Attorney General acting on behalf of the City, for restitution for his alleged looting of the City's coffers. He has also been criminally charged with multiple counts of misappropriation of public funds. Rizzo, by complaint for declaratory relief, seeks a judgment that the City is contractually obligated to provide him with a defense to these civil and criminal actions. We conclude that, as a matter of law, the City does not owe Rizzo such a defense. 

City of Bell v. Superior Court (Rizzo) (10/4/13) --- Cal.App.4th ---, slip op. at 2.  

The opinion is available here.  

Estrada v. City of Los Angeles: Court Issues FEHA Decision on Volunteer v. Employee Status

In Estrada v. City of Los Angeles (7/24/13) --- Cal.App.4th ---, the plaintiff was a volunteer police reserve officer who sued the City for disability discrimination under the Fair Employment and Housing Act (FEHA). The Court of Appeal affirmed a judgment for the City, holding that the fact that the City its volunteer officers with workers compensation benefits did not make them employees for FEHA purposes.  

The Court looked to the definition of "employee" contained in the regulations enacted by the Department of Fair Employment and Housing (DFEH) to implement the FEHA. The regulations define an employee as "any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written." Cal. Code Regs., tit. 2, § 7286.5, subd. (b). Slip op. at 5. 

The Court concluded that although the plaintiff was "appointed" to a volunteer position, he was not "appointed" to an employee position under the City's civil service rules. Slip op. at 11-13. The fact that the plaintiff received workers' compensation benefits as a volunteer officer did not change this conclusion. Slip op. at 13-15.  

The opinion is available here. 

City of Los Angeles v. Superior Court: City Must Arbitrate Mandatory Furloughs for Civilian Employees

The California Supreme Court has issued its decision in City of Los Angeles v. Superior Court (Engineers and Architects Assn) (6/20/13) --- Cal.4th ---, holding that the City of Los Angeles must arbitrate its decision to furlough civilian employees: 

After declaring a fiscal emergency, a charter city adopted a mandatory furlough program for its civilian employees. Many employees represented by a union filed grievances against the city, arguing that the furloughs violated duly ratified memorandums of understanding (MOUs) governing the terms and conditions of their employment. When their grievances were denied, these employees requested arbitration, and when the city refused to arbitrate, their union petitioned the superior court for an order compelling the city to arbitrate the furloughs dispute. The superior court granted the union’s petition.  

The city then petitioned the Court of Appeal for a writ of mandate, asking it to overturn the superior court’s decision. After issuing an order to show cause, and setting the matter for a hearing, the Court of Appeal granted the city’s petition. Assuming, without deciding, that the employees’ grievances are subject to arbitration under the terms of the MOUs, the Court of Appeal concluded that the city could not be compelled to arbitrate because arbitration would constitute an unlawful delegation to the arbitrator of discretionary policymaking powers that the city’s charter vested in its city council.  

To address the important issues raised by the Court of Appeal’s decision, this court granted the union’s petition for review. The issue presented in that petition is whether a charter city may arbitrate disputes over collectively bargained wage and hour provisions without unlawfully delegating to the arbitrator its discretionary budgeting and salary-setting authority. At this court’s request, the parties also briefed another issue, which is whether, under the MOUs at issue here, the city has a contractual duty to arbitrate the employee furloughs dispute.  

We conclude, first, that arbitration of the dispute at issue here does not constitute an unlawful delegation of discretionary authority to the arbitrator and, second, that the city is contractually obligated to arbitrate the employee furloughs dispute. Thus, we reverse the Court of Appeal’s judgment. 

Slip op. at 1-2.  

The opinion is written by Justice Kennard, with Chief Justice Cantil-Sakauye and Justices Werdegar and Liu joining.  Justice Corrigan wrote in dissent, joined by Justices Baxter and Chin.  

The opinion is available here. 

Association of Orange County Deputy Sheriffs v. County of Orange: Sheriff May Prohibit Deputies Under Investigation From Accessing Their Investigative Files Until After Internal Affairs Interviews

A quick note on this case. 

In Association of Orange County Deputy Sheriffs v. County of Orange (6/12/13) --- Cal.App.4th ---, the Court of Appeal held that the Orange County Sheriff could prohibit any deputy who was under investigation for misconduct from accessing his or her internal affairs investigative file before being interviewed by an internal affairs investigator. The Court explained: 

We hold the Sheriff's order delaying access to the internal affairs investigative files until after the investigative interview was within her legal authority and not subject to meet-and-confer requirements [of the Meyers-Milias-Brown Act (MMBA), Cal. Gov. Code, § 3500 et seq.]... We also address a question the California Supreme Court expressly did not reach in [Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564], and hold a long-standing past practice of preinvestigative interview access to the investigative file, alone, does not constitute a working condition within the meaning of the MMBA.   

The trial court properly applied the test for determining whether an issue falls within the scope of representation under the MMBA as set forth by our Supreme Court.... For the reasons we will explain, the Sheriff's order did not significantly or adversely affect wages, hours, or other terms and conditions of employment within the meaning of the MMBA. Even if it did, the Sheriff's order fell outside the scope of representation because it was a fundamental managerial or policy decision that was not outweighed by the benefit to employer-employee relations that would result from bargaining about the decision. The Sheriff's order did not violate any express or implied term of the MOU. 

Slip op. at 2-3.  

The opinion is available here. 

Do v. Regents: University of California Has "Quasi-Judicial Power" Over Its Own Employment Decisions, And Substantial Evidence Test Applies On Review

In Do v. The Regents of the University of California (5/13/13, pub. 6/11/13) --- Cal.App.4th ---, the Court of Appeal affirmed a trial court order denying an employee's petition for administrative mandamus challenging his termination from the University of California.

James Do worked for the University of California as an IT professional. A conflict developed between Do and his supervisor, Richard Fletcher. Do at one point told Fletcher to "get out of my face" because he "didn't want to deck him" and "it was better than getting violent." The University terminated Do for threatening Fletcher. Do received a Skelly hearing, but the University did not change the termination decision.

After appealing his dismissal through three levels of administrative review, Do filed a petition in Superior Court for a writ of administrative mandamus, seeking reinstatement and lost compensation. The trial court denied the petition, holding the substantial evidence supported the termination decision.

The Court of Appeal affirmed, holding:

[T]he California Constitution has granted the University quasi-judicial powers regarding matters falling within its broad powers to organize and govern the university, and this includes quasi-judicial adjudication of employment rights. Such University administrative decisions are subject to review under the substantial evidence rule. 

Slip op. at 14-15.  

"In short, the University functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability." Slip op. at 16, citing Miklosy v. Regents (2008) 44 Cal.4th 876, 890. 

The trial court properly applied a substantial evidence standard to the University's termination decision. Slip op. at 21-22. Substantial evidence supported the University's decision, and the trial court did not err in denying Do's petition for administrative mandamus. Slip op. at 22-26. 

Viewing the evidence in the light most favorable to the judgment, resolving conflicts and drawing inferences in support of the judgment, we conclude that although this was a close case, as the trial court frankly acknowledged, the University provided substantial evidence from which the hearing officer could reasonably conclude that the University's personnel policies were violated.

Slip op. at 25-26. 

The opinion is available here.

Guerrero v. Superior Court: Court of Appeal Reverses Order Sustaining Demurrer on Joint Employment Issues

In Guerrero v. Superior Court (Weber) (2/11/13) --- Cal.App.4th ---, the plaintiff, Guerrero, was employed to provide in-home support services (IHSS) to eligible recipients in Sonoma County (County) under the In-Home Support Services Act. Cal. Welf. & Inst. Code § 12300 et seq. She sued the County and its In-Home Support Services Public Authority (the Authority) for violation of federal and state wage law, alleging that they jointly employed her along with the individual to whom she rendered services.

The trial court sustained without leave to amend the demurrer of the County and the Authority. The Court of Appeal reversed, holding:

Although providing IHSS-funded care does not constitute employment for all purposes, the County and the Authority were Guerrero's joint employers for FLSA purposes because: (1) "their power over the employment relationship by virtue of their control over the purse strings was substantial"; (2) her wages were determined and paid by the state and its agents, the County and the Authority; (3) the County and the Authority maintained employment records on Guerrero; and (4) the County had an inherent role in in supervising the provision of services by IHSS providers such as Guerrero. Slip op. at 12-30. The Court relied heavily on Bonnette v. California Health and Welfare Agency (9th Cir. 1983) 704 F.2d 1465 (state and counties were employers under California's IHSS program) and distinguished Moreau v. Air France (9th Cir. 2003) 356 F.3d 942 (airline was not joint employer of service workers hired by outside entities for purposes of FMLA and CFRA).

Because Guerrero alleged that she "performed general household work exceeding twenty percent of her total weekly hours worked," the trial court erred in sustaining the demurrer on grounds that her job was exempt from FLSA minimum wage and overtime protections pursuant to the domestic service companionship exception. 29 U.S.C. section 213. "Determining whether or not all of the elements of the exemption have been established is a fact-intensive inquiry. The appropriateness of any employee's classification as exempt must be based on a review of the actual job duties performed by that employee." Slip op. at 30-34.

The Court rejected the concern that allowing such wage claims on a joint employment basis make the County and the Authority "liable for wages that they have no power to control."  

The IHSS program pays for specified services delivered to qualified recipients up to a maximum number of hours. Where a qualified provider delivers services other than those authorized and covered by the program or for a greater number of hours than authorized and real parties have no knowledge that such is occurring and are realistically unable to inform themselves of such, we agree it would be inappropriate to impute the recipient's knowledge to real parties so as to require real parties to pay for such services. 

However, this was a factual issue not ripe for adjudication on demurrer.  Slip op. at 34-36.

The County and the Authority were Guerrero's employers for purposes of California wage law because: (1) California's protections cannot be any less protective of employees than federal law; (2) while they did not directly hire, fire or supervise providers, through their "power of the purse" and quality control authority, the County and the Authority had "the ability to prevent recipients and providers from abusing IHSS authorizations both as to the type of services performed and the hours worked." The trial court thus erred in finding that they did not suffer or permit Guerrero to work and were not her employers.  Slip op. at 36-45. 

Public agencies are not exempt from the provisions of Wage Order No. 15-2001.  Slip op. at 45-50. 

The trial court erred in holding that the personal attendant exemption barred Guerrero's claims because whether she rendered services as a personal attendant was a question of fact. Guerrero's allegation that she spent more than 20 percent of her time performing "general household work" raised an issue of fact as to her personal attendant status under the wage order.  Slip op. at 50-52.  

The opinion is available here.  

The County and the Authority just last week filed their petition for review in the California Supreme Court. The Court last year granted review in Patterson v. Domino's Pizza (discussed here), in which the Court of Appeal held that a franshisor may be liable for a franchisee's alleged violations of the Fair Employment and Housing Act, but denied review in Aleksick v. 7-Eleven (2012) 205 Cal.App.4th 1176, in which the Court of Appeal held that 7-Eleven is not liable for allegedly failing to pay its franchisees' employees their earned wages. If I had to wager, I would say that the Court will deny review, particularly because Guerrero arises on the defendants' demurrer.  

Riverside County Sheriff’s Dep’t v. Stiglitz: Cal. Supreme Court to Decide Whether Hearing Officer in Public Employee Termination Matter May Grant Pitchess Motion

On January 16, 2013, the California Supreme Court granted review in Riverside County Sheriff’s Department v. Stiglitz (Case No. S206350).  The court limited review to the following issue: 

Does the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff's department have the authority to grant a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531? 

In the underlying opinion (available here), the Court of Appeal reversed an order granting a petition for writ of administrative mandate, holding that a hearing officer in such a case has authority to to grant a Pitchess motion. 

The Supreme Court's case summary page is here.  I have added the case to our Watch List of pending cases.  

Kloeckner v. Solis: SCOTUS Issues Decision on Jurisdiction for Federal Employee Merit Systems Protection Board "Mixed Case" Appeals

The Supreme Court of the United States on Monday issued its decision in Kloeckner v. Solis. In a per curiam opinion by Justice Kagan, the Court held that a federal employee who claims that federal agency action appealable to the Merits System Protection Board violates an anti-discrimination statute should go to district court not the Federal Circuit, regardless of whether the case was decided on procedural grounds or the merits.  

More concisely stated (thanks to SCOTUSblog's Lyle Denniston):  

An employee of a federal agency who believes that she suffered a serious problem at work — like, for example, getting fired — and who is persuaded that the reason for the action was discrimination based, say, on sex or age, has a right to take the case to a specialized board with the power to decide the claim. If the worker is dissatisfied with the result at the board, she has a right to go to court.  

The decision's syllabus provides a more detailed explanation: 

The Civil Service Reform Act of 1978 (CSRA) permits a federal employee subjected to a particularly serious personnel action such as a discharge or demotion to appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). Such an appeal may allege that the agency had insufficient cause for taking the action under the CSRA itself; but the appeal may also or instead charge the agency with discrimination prohibited by a federal statute. See 5 U. S. C. §7702(a)(1). When an employee alleges that a personnel action appealable to the MSPB was based on discrimination, her case is known as a “mixed case.” See 29 CFR §1614.302. Mixed cases are governed by special procedures set out in the CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC).   

Under those procedures, an employee may initiate a mixed case by filing a discrimination complaint with the agency. If the agency decides against the employee, she may either appeal the agency’s decision to the MSPB or sue the agency in district court. Alternatively, the employee can bypass the agency and bring her mixed case directly to the MSPB. If the MSPB upholds the personnel action, whether in the first instance or after the agency has done so, the employee is entitled to seek judicial review. 

Section 7703(b)(1) of the CSRA provides that petitions for review of MSPB decisions “shall be filed in the . . . Federal Circuit,” except as provided in §7703(b)(2). Section 7703(b)(2) instructs that “[c]ases of discrimination subject to the provisions of [§7702] shall be filed under [the enforcement provision of a listed antidiscrimination statute].” Those enforcement provisions all authorize suit in federal district court. The “cases of discrimination subject to the provisions of §7702” are those in which an employee “(A) has been affected by an action which [she] may appeal to the [MSPB], and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute; in other words, “mixed cases.” 

In 2005, while an employee of the Department of Labor (DOL or agency), petitioner Carolyn Kloeckner filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in unlawful sex and age discrimination by subjecting her to a hostile work environment. Following applicable EEOC regulations, DOL completed an internal investigation and report, and Kloeckner requested a hearing before an EEOC administrative judge. While the EEOC case was pending, Kloeckner was fired. Because Kloeckner believed that DOL’s decision to fire her was based on unlawful discrimination, she now had a “mixed case.” Kloeckner originally brought her mixed case directly to the MSPB. Concerned about duplicative discovery expenses between her EEOC and MSPB cases, she moved to amend her EEOC complaint to include her claim of discriminatory removal and asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. Both motions were granted. In September 2006, the MSPB dismissed her appeal without prejudice to her right to refile by January 18, 2007. The EEOC case, however, continued until April 2007, when the EEOC judge terminated the proceeding as a sanction for Kloeckner’s bad-faith discovery conduct and returned the case to DOL for a final decision. In October, DOL ruled against Kloeckner on all of her claims. Kloeckner appealed to the Board in November 2007. The Board dismissed Kloeckner’s appeal as untimely, viewing it as an effort to reopen her old MSPB case months after the January 18 deadline.  

Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The court dismissed the complaint for lack of jurisdiction. It held that, because the MSPB dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under §7703(b)(1); in the court’s view, the only discrimination cases that could go to district court pursuant to §7703(b)(2) were those the MSPB had decided on the merits. The Eighth Circuit affirmed.   

Held: A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1) should seek judicial review in district court, not the Federal Circuit, regardless whether the MSPB decided her case on procedural grounds or on the merits. Pp. 7–14.  

(a) Two sections of the CSRA, read naturally, direct employees like Kloeckner to district court. Begin with § 7703, which governs judicial review of MSPB rulings. Section 7703(b)(1) provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit—“[e]xcept as provided in paragraph (2) of this subsection.” Section 7703(b)(2) then provides that “[c]ases of discrimination subject to the provisions of [§7702]” “shall be filed under” the enforcement provision of a listed antidiscrimination statute. Each of the referenced enforcement provisions authorizes an action in federal district court. Thus, “[c]ases of discrimination subject to the provisions of [§7702]” shall be filed in district court. Turn next to §7702, which provides that the cases “subject to [its] provisions” are cases in which a federal employee “has been affected by an action which [she] may appeal to the [MSPB],” and “alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The “cases of discrimination subject to” §7702 are therefore mixed cases. Putting §7703 and §7702 together, mixed cases shall be filed in district court. That is where Kloeckner’s case should have been, and indeed was, filed. Regardless whether the MSPB dismissed her claim on the merits or threw it out as untimely, she brought the kind of case that the CSRA routes to district court. Pp. 7–8.    

(b) The Government’s alternative view—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit—is not supported by the statute. According to the Government, that bifurcated scheme, though not specifically prescribed in the CSRA, lies hidden in the statute’s timing requirements. But the Government cannot explain why Congress would have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible. Pp. 8–13. 

The opinion is available here.  

Bullock v. Berrien: Ninth Circuit Addresses Exhaustion Requirements in Federal Employee's Disability Discrimination Action

Bullock v. Berrien, --- F.3d --- (9th Cir. 7/30/12), deals with a federal employee's duty to exhaust administrative remedies before filing a civil action for disability discrimination suit under the Rehabilitation Act of 1973.  29 U.S.C. § 701 et seq.  In short, the Court held that an employee who files an optional administrative appeal after an ALJ adjudicates her case may dismiss her appeal and file in the district court, even if she does not wait the 180 days required by the regulations.

The opinion is available here. 

Kloeckner v. Solis: US Supreme Court to Decide Jurisdiction of Merit Systems Protection Board Appeals

On January 12, 2012, the Supreme Court of the United States granted certiorari in Kloeckner v. Solis (Case No. 11-184) to decide the following issue:

The Merit Systems Protection Board (MSPB) is authorized to hear appeals by federal employees regarding certain adverse actions, such as dismissals. If in such an appeal the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case." 

The Question Presented is: 

If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

The Court's docket is here.  

Sheppard v. North Orange County Occupational Program: Minimum Wage Order Covers Public School Employees

Sheppard v. North Orange County Occupational Program (12/23/10) --- Cal.App.4th ----, 2010 WL 5188768, holds that employees of public entities are covered by the minimum wage protections of the Wage Order and may sue their employers for breach of contract when they fail to pay minimum wage. The plaintiff was employed by an entity created by four public school districts. His employer required him to spend 20 minutes of unpaid time preparing for every hour he spent teaching. He sued his employer for violation of the minimum wage law under Industrial Welfare Commission (IWC) wage order No. 4-2001 and Labor Code section 218, breach of contract, and quantum meruit. Slip op. at 1. The trial court (OCSC Judge Velasquez) sustained demurrers and granted judgment on the pleadings for the defendant.

The Court of Appeal reversed in part and affirmed in part:

We reverse the trial court’s order granting judgment on the pleadings as to the violation of the minimum wage law claim. Sheppard alleged he was employed by a regional occupational program which was the creation of one or more public school districts through Education Code section 52301. We conclude the minimum wage provision in Wage Order No. 4 2001 applies to Sheppard’s employment with NOCROP. We hold the Legislature has plenary authority over public school districts and was constitutionally authorized to vest in the IWC, through section 1173, the power to impose the minimum wage law provision contained in Wage Order No. 4 2001 as to employees of such public school districts. (For the reasons we explain, this holding is limited to employees of public school districts.) We therefore reverse the trial court’s order granting judgment on the pleadings as to the violation of the minimum wage law claim.

We also reverse the order sustaining NOCROP’s demurrer to Sheppard’s breach of contract claim. California Supreme Court precedent establishes that a public employee has a contractual right to earned but unpaid compensation, which is protected by the State Constitution.

We affirm the order sustaining the demurrer to the quantum meruit claim because the Government Claims Act (Gov. Code, § 810 et seq.) bars the assertion of such a claim against a public entity.

Slip op. at 1. The opinion is available here.

Meal Period Laws Do Not Apply to Public Entities, Court of Appeal Holds

In California Correctional Peace Officers’ Association v. State of California (August 18, 2010, publ. September 17, 2010), the Court of Appeal held that Labor Code Sec. 512 and 226.7, which require employers to provide employees with meal periods or pay them for their missed peal periods, and Industrial Welfare Commission (IWC) Wage Order No. 17-2001, which sets wage-and-hour standards for "miscellaneous employees," do not apply to public entities.

The California Correctional Peace Officers' Association (CCPOA) contends that the State of California (the State), through the California Department of Corrections and Rehabilitation (CDCR), has violated various Labor Code provisions, as well as wage orders promulgated by the Industrial Welfare Commission (IWC), by failing to provide correctional officers with meal periods and by failing to pay for the missed wage periods. According to CCPOA, the Legislature intended that the State provide its correctional officers with meal periods as required by Labor Code section 512 and IWC Wage Order No. 17, and that the State must pay for missed meal periods as required by Labor Code section 226.7. We disagree, and affirm the trial court's determination that the subject wage and hour statutes do not apply to public employees.

Slip op. at 1. The Court followed Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729, 734-735, which rejected similar claims:

[U]nless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector. Since section[ ] ... 512 do[es] not expressly apply to public entities, [it is] not applicable here. Further, applying section[ ] ... 512 to the District would infringe on its sovereign power to regulate its workforce.

Slip op. at 2, citing Johnson, 174 Cal.App.4th at p. 733.

The Court also rejected the contention that public employees are covered by Wage Order No. 17-2001, the "catch-all order, which subsumes 'Miscellaneous Employees' who are not otherwise covered specific wage orders." Slip op. at 3.

CCPOA contends that Wage Order No. 17 applies to the CDCR's employees because
peace officers were not covered or exempted by any wage order in effect in 1997. CCPOA misreads the scope of the wage orders in effect in 1997. It is well established that public employees have been historically exempt from IWC wage orders. (See, e.g., Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 29, 273 Cal.Rptr. 615 [noting exclusion of public employees from general minimum wage order]; see also Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 166-167, 95 Cal.Rptr.2d 10 [holding public employee not entitled to overtime provisions in IWC Order No. 4].) Indeed, with two exceptions pertaining to agricultural occupations and household occupations (Cal.Code Regs., tit. 8, §§ 11140 & 11150), public employees were expressly exempted from the IWC wage orders in effect in 1997 [citations omitted]. By its terms, Wage Order No. 17 applies to “all employees not specifically exempted ” in the wage orders in effect in 1997. As public employees were exempt from all but two of the wage orders in effect in 1997, Wage Order No. 17 does not apply to CDCR employees.

Ibid. The opinion is available here.