Filed 12/10/13 Smith v. Orange Unified School Dist. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


PAMALA SMITH,

     Plaintiff and Appellant,                                          G048333

         v.                                                            (Super. Ct. No. 30-2012-00545841)

ORANGE UNIFIED SCHOOL DISTRICT                                        OPINION
et al.,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, Linda S.
Marks, Judge. Affirmed.
                   Law Office of Steven Bassoff and Steven B. Bassoff for Plaintiff and
Appellant.
                   Parker & Covert, Jonathan J. Mott and Steven Montanez for Defendants
and Respondents.


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              Plaintiff Pamala Smith filed a petition for writ of mandate pursuant to Code
of Civil Procedure section 1085, challenging her layoff from her position as a Senior
Secretary, arguing she had seniority over two other employees whom, she claimed, had
been improperly reclassified. The trial court ruled in favor of defendants Orange Unified
School District and the Board of Education of Orange Unified School District, finding
plaintiff did not exhaust her administrative remedy by timely filing a grievance and failed
to rebut an arbitrator’s ruling her grievance was filed untimely.
              Plaintiff asserts she had no administrative remedy and thus was not
required to file a grievance and also that defendants breached their statutory duty in
reclassifying the two employees.
              The trial court correctly ruled plaintiff had an administrative remedy, i.e.,
filing a grievance, and her failure to timely exercise it barred a remedy pursuant to her
writ petition. Consequently we affirm the judgment.
                          FACTS AND PROCEDURAL HISTORY
              Plaintiff as an employee of defendants is a member of the California School
Employees Association (Union) and subject to a collective bargaining agreement (CBA).
The CBA includes provisions describing guidelines for determining seniority and setting
out layoff procedures.
              Plaintiff was first employed by defendants in March 1993. In January 2007
she was promoted and classified as a Senior Secretary. She remained in that position
through June 29, 2010, when she was laid off from that classification, and was given the
position of Instructional Assistant, which resulted in a decrease in pay. On the day she
was laid off plaintiff attended a meeting where Jamie Brown, the Executive Director of
Human Resources, provided information regarding seniority and explained who was laid
off based on seniority.
              At the time plaintiff was laid off two other employees, Ellen Gomez and
Doreen Kearns, each classified as a Senior Secretary, retained their positions, despite the

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fact they had attained that classification after plaintiff. After inquiring from defendants
and the Union, plaintiff learned that each woman had been reclassified as a Senior
Secretary and retained seniority based on their original respective hire dates. Both had
been hired before plaintiff and thus were and are senior to her despite the fact she had
become a Senior Secretary before either of them.
              The CBA provides that grievances must be filed within 30 days of the
member’s knowledge of the act giving rise to the grievance. On September 20, 2010
plaintiff filed two grievances with defendants, which stated that 33 employees, including
Gomez and Kearns, “were given adjusted dates of entry for time worked in another lower
job classification” and apparently “promoted to higher job classification[s]” without
complying with several provisions of the CBA, “result[ing] in an erroneous seniority list
for numerous job classifications.”1 On October 20 defendants rejected the grievances for
several reasons, including untimeliness.
              In November, the Union, on plaintiff’s behalf, inquired as to the basis for
reclassification and provided that information to plaintiff in December. Plaintiff then
filed a second grievance on December 17. That grievance stated the purported
reclassification of Kearns was in fact a promotion, in violation of the CBA. It sought to
have Kearns’s date of entry as a Senior Secretary changed. Plaintiff also asked to be
restored to her position as Senior Secretary. Defendants denied that grievance as well
because, among other things, it was time barred.
              In February 2012, plaintiff filed the petition for writ of mandate that is the
subject of this appeal. Plaintiff relied on Education Code section 45101, subdivision (f)
(45101(f)), which defines reclassification. She alleged this section imposed substantive
duties on defendants to properly reclassify employees. The petition pleaded the
reclassifications of Kearns and Gomez did not fall within the definition of reclassification

       1  Plaintiff does not direct us to the actual grievance in the record. She cites to an
arbitrator’s subsequent award, discussed below, that quoted the grievance.

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and were, in effect, promotions. With a reclassification, the seniority of Gomez and
Kearns related back to their original hire dates whereas had they been promoted, seniority
would commence with the date they assumed their Senior Secretary positions. According
to the petition, at the time she was laid off plaintiff actually had seniority over Gomez
and Kearns based on the dates each became a Senior Secretary. Plaintiff sought a writ
ordering defendants to “rescind the reclassifications” of Gomez and Kearns, “restore
[her] seniority” and reinstate her as a Senior Secretary, and reimburse her for back salary
and benefits.
                Shortly after the writ petition was filed plaintiff’s second grievance went to
binding arbitration. The parties stipulated the sole issue was whether the December 2010
grievance had been timely filed. In a lengthy written opinion the arbitrator concluded it
was not. Based on evidence presented he found plaintiff knew or should have known
facts sufficient “which gave rise to” the December grievance more than 30 days prior to
its filing.
                In connection with the petition for writ of mandate, after taking evidence
and hearing argument, the court denied the petition. It found the claim was barred
because plaintiff failed to exhaust her administrative remedies by timely filing a
grievance pursuant to the CBA.
                The court also ruled section 45101(f) did not impose any substantive duties
but was merely a definition. It noted plaintiff did not “challeng[e] the constitutionality or
legality of” that statute but questioned her layoff based on a miscalculation of seniority,
arguing she had seniority over other employees in her classification and one of them
should have been laid off instead of her. The court found this claim was encompassed by
the grievance procedure.
                The court explained that to the extent the arbitration fulfilled the
requirement to file a grievance, the arbitrator found plaintiff’s grievance was untimely.
Plaintiff failed to demonstrate that decision was incorrect. Finally, the court ruled it did

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not have jurisdiction to decide whether plaintiff was entitled to recover back pay and
benefits.
                                       DISCUSSION
              Plaintiff disputes the trial court’s ruling that her real complaint centers on
her layoff. She instead focuses on what she claims is the wrongful reclassification of
Gomez and Kearns. She argues a challenge to reclassification does not fall within the
purview of the CBA and thus she was not required to file a grievance. We disagree.
              Plaintiff’s basic complaint is that she should not have been laid off because
she had or should have had more seniority than Gomez and Kearns. Seniority and layoffs
are covered by Article 14 of the CBA.
              Article 14, section 14.210 of the CBA states: “Whenever a classified
employee is laid off, the order of layoff within the class shall be determined by length of
service. The employee who has been employed the shortest time in the class, plus higher
classes, shall be laid off first.” Class within that section means classification. (CBA, Art.
14, § 14.221.) Section 14.300, paragraph 3 provides: “For layoff purposes, seniority will
be determined by entry date within that classification or related predecessor
classification.” In addition, there is a detailed scheme in the CBA to calculate which
employees are to be laid off, in what order, and how layoffs are carried out. (CBA, Art.
14.)
              Article 4, section 4.100 of the CBA defines a grievance as “an allegation by
a unit member regarding a violation or misapplication of the specific provisions of [the
CBA] when such application or violation has adversely affected the unit member.” If a
member claims a provision of the CBA has been “violat[]ed or misappli[ed]” to his or her
detriment (ibid.), the member must file a written grievance “[w]ithin . . . 30 days of when
the grievant knew or reasonably should have known of the act or omission which gave
rise to the grievance . . . ” (CBA, Art. 4, § 4.210).



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               Here, plaintiff did not file her grievances until September and December
2010, well after her layoff in June. Defendants denied the first grievance as untimely and
plaintiff did not question that ruling. The arbitrator found the December grievance was
not timely filed. Plaintiff did not challenge this decision in the trial court or on appeal.
               Where a collective bargaining agreement includes a grievance procedure, a
party must avail of it before filing an action. (Farahani v. San Diego Community College
Dist. (2009) 175 Cal.App.4th 1486, 1496.) Exhaustion is “a procedural prerequisite to
judicial action. [Citations.]” (Ibid.) The finding of untimeliness is the equivalent of a
failure to file a grievance at all. This bars plaintiff’s writ petition.
               Plaintiff claims her challenge is to the alleged improper classification of
Gomez and Kearns. She points to language in section 4.100 of the CBA that exempts
from the grievance process “[a]ctions to challenge or change the policies, regulations or
other matters outside of [the CBA],” which states “review must be taken under separate
processes.” Plaintiff claims reclassification falls within this exemption, thus relieving her
of a duty to file a grievance. But her action is not a challenge to policies outside the
CBA.
               Plaintiff relies on section 45101(f), which defines reclassification as “the
upgrading of a position to a higher classification as a result of the gradual increase of
duties being performed by the incumbent in such position.” Plaintiff claims this section
imposes a substantive duty on defendants to reclassify employees in accordance with the
definition. Although not clearly articulated, plaintiff argues defendants violated that duty
when it reclassified Gomez and Kearns as Senior Secretaries because they had not
performed any of the duties of that position before their reclassifications.
               But section 45101(f) is merely a definition. There is nothing in the
language of the statute to suggest it imposes substantive duties. The title of Education
Code section 45101 is “Definitions.” The first sentence of the section states:



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“Definitions as used in this chapter.” Plaintiff fails to cite any authority that a definition
imposes a duty, either in general or in this particular case.
               The testimony of Brown, the human resources director, that defendants
were required to comply with section 45101(f) when reclassifying employees does not
affect our decision. The meaning of a statute is a legal question. (Western States
Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 437.) And, in deciding
it, we are not bound by the opinion of a witness.
               In sum, because plaintiff’s challenge was to her layoff based on seniority,
an issue covered by the grievance procedure set out in the CBA, and plaintiff failed to
timely file such a grievance, she did not exhaust her administrative remedy and thus has
not satisfied the prerequisite to filing her writ petition.
                                        DISPOSITION
               The judgment is affirmed. Defendants are entitled to costs on appeal.




                                                    THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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