By J. Scott Tiedemann and Kaylee E. Feick1
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Kaylee Feick is an Associate in Liebert Cassidy Whitmore's Los Angeles office, where she provides representation and counsel to clients in all matters pertaining to labor, employment, and education law. She provides support in litigation claims for discrimination, harassment, retaliation, wage and hour disputes, and other employment matters. Kaylee can be reached at (310) 981-2735 or kfeick@lcwlegal.com.
Christopher Trejo began work as a deputy sheriff with the Los Angeles County Sheriff's Department (Department) in February 2014. Pursuant to the County's Civil Service Rules (Rules), deputy sheriffs serve a 12-month probationary period before promotion into a permanent position. The Rules also provide that a probationary period shall not last more than 12 months from the date of appointment. However, the County may stop the 12-month clock if the employee is absent from duty. The Rules allow the County to then recalculate the length of time remaining on probation "on the basis of actual service exclusive of the time away." The Rules define "actual service" as "time engaged in the performance of the duties of a position or positions including absences with pay."
In June 2014, the Department investigated whether Trejo violated the Department's use-of-force policies. Pending the investigation, Trejo was relieved of duty and reassigned to administrative duties in the records unit. In this assignment, Trejo did not perform all of the essential duties of a deputy sheriff.
In August 2014, the Department extended Trejo's probationary period because he was relieved of peace officer duties during the investigation. The Department informed Trejo that his probationary period would be recalculated upon his return to assigned duty as a deputy sheriff.
In January 2016, the Department released Trejo from probation. Although the Department's letter informed Trejo of certain appeal rights, it did not notify Trejo of any rights to a Skelly hearing or other due process procedures because it did not consider Trejo to be a permanent employee. Under California law, probationary employees are not entitled to the same due process procedures as permanent employees. Following a name-clearing hearing, the Department issued a decision confirming Trejo's termination.
Trejo filed a request for a hearing before the Civil Service Commission, asserting he was a permanent employee at the time of his termination. The Commission determined that Trejo's petition was untimely and made no ruling on whether he was entitled to pre-termination rights.
Trejo then filed a petition for writ of mandate in superior court against the County, claiming that the Department unlawfully extended his probationary period. The trial court granted the petition and ordered the County to set aside Trejo's dismissal on the grounds that he was a permanent employee entitled to...
