Superior
Court Finds Department Failed to Extend Officer’s Probationary Period
Michael
A. Morguess
Lackie & Dammeier LLP
Javier
Retamoza began working as a police officer for the city of Corona on
September 18, 2001. The city has a one-year probationary period for its
new officers, and Retamoza’s was scheduled to end on September 17,
2002. As a medic in the reserves for the Air Force, Retamoza was put on
active status in late December 2001, requiring him to report to March
Air Force Base (Riverside, CA). He provided his initial active duty
orders to his employer.
The
city of Corona’s personnel rules provide that the city may, “at its
discretion,” extend a probationary period for extended absences. As
Retamoza received renewed orders, he provided them to his superiors at
the city of Corona.
In
October 2002, Retamoza was given notice of an internal affairs interview
related to his active duty status, and related claim for special
supplemental pay the city provides to reservists who are called up to
active duty. In November
2002, two months after his probation ended, and while still on
active status, Retamoza received notice of his termination.
After
receiving the termination notice, Retamoza’s attorney, Dieter C.
Dammeier of Lackie & Dammeier, LLP, requested the scheduling of the
usual proceedings following termination (i.e., a Skelly hearing,
an administrative appeal, etc.) It
was believed that Retamoza was somehow terminated in connection with the
previous internal affairs interview. The city responded that Retamoza
was not found guilty of any misconduct, was still on probation when
terminated, and that he was let go for failure to satisfactorily
complete the probationary period; therefore, stated the city, he was not
entitled to any proceedings whatsoever, including a liberty interest
hearing. Retamoza never received any notice that his probation was
extended, and that the city ever exercised its discretion to extend his
probation.
With
support from LDF, I filed a Petition for Writ of Mandate, asking the
court to issue a writ compelling the city to reinstate Retamoza as a
permanent employee, along with back pay and other benefits. The petition
focused on the city’s failure to provide any evidence of an extension
of probation, or notice to Retamoza of the extension of probation.
The
city responded with the declaration of the Human Resources director, who
conceded that no written notice had been sent out concerning the
extension of probation. The
city argued that since it was not known for exactly how long Retamoza
was going to be on active duty, it could not know for how long to extend
his probation. The HR director also stated that she had had two phone
conversations with Retamoza during which she claims to have told him
that his probation “would be” extended. Thus, argued the city, given
the circumstances and the city’s notice to Retamoza that his probation
would be extended, the city acted within its authority.
At
the hearing on the petition, Riverside Superior Court Judge Gloria
Connor Trask pressed the city for some evidence that it actually did
extend the probationary period at any time. The judge wanted the “who,
what, where, and when” of the probation extension and offered the city
an opportunity to provide a supplemental declaration providing this
information. Concerned that the city would just give the judge what she
wanted, I asked the judge for permission to take the Human Resources
director’s deposition instead of just allowing her to prepare a
supplemental declaration. The judge granted this request.
I
took the HR director’s deposition. The director claimed that all
extensions of probation are in writing, but she was unable to provide
any documentation extending Retamoza’s probation, even though she also
claimed that she did extend his probation prior to his original
probationary period ending. When asked if she had told Retamoza that his
probation already was extended during any of her two supposed phone
conversations with him, the HR director stated that she did not. In
short, the HR director could not provide any objective evidence, other
than her claim, that Retamoza’s probation had been extended.
The
deposition transcript was submitted to the court along with supplemental
briefing. When the parties returned to court, the judge noted that she
still had no evidence before her that the city ever extended
Retamoza’s probation. The judge disagreed with the city’s argument
that notice that the probation “would be” extended was sufficient,
and the judge found Retamoza to be a permanent employee of the city of
Corona. The judge ordered that a writ issue, compelling the city to
provide him with the proper administrative appeal rights due a permanent
employee.
This
case has not entirely concluded. Upon issuance and service of the writ,
and return of the matter to the city, it will be up to the city to
respond to the writ, which may include compliance with the writ by
providing an administrative appeal based upon whatever disciplinary
charges it chooses to bring, if any, against Retamoza, and then carrying
the burden of proving those charges and justifying the level of
discipline at the administrative appeal.
About
the author: Michael A. Morguess is an attorney with Lackie &
Dammeier LLP, his practice focuses on labor-relations litigation in
state, federal and appellate courts.
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