Filed 9/8/17
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                            (Sacramento)
                                                ----




CALIFORNIA CORRECTIONAL PEACE                                      C078723
OFFICERS ASSOCIATION,
                                                            (Super. Ct. No. 34-2013-
                 Plaintiff and Appellant,                  80001524-CU-WM-GDS)

        v.

DEPARTMENT OF CORRECTIONS AND
REHABILITATION et al.,

                 Defendants and Respondents.



     APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Reversed with directions.

       California Correctional Peace Officers Association, Daniel M. Lindsay and
Charlotte Martinez; Benedon & Serlin, Douglas G. Benedon and Wendy S. Albers for
Plaintiff and Appellant.

      Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney
General, Julie L. Harlan, Deputy Attorney General, for Defendants and Respondents.




                                                 1
       The California Correctional Peace Officers Association (the Association) brought
a grievance on behalf of correctional officer Sammie Gardner, alleging a violation of his
rights under the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) (38 U.S.C. §§ 4301 et seq.). The grievance proceeded through the four-step
process set forth in the memorandum of understanding (MOU) between the Association
and the California Department of Corrections and Rehabilitation (Corrections). At the
fourth step, a hearing before the Department of Personnel Administration (Department),
the Department granted the grievance. When Corrections refused to comply with the
Department’s decision, the Association petitioned for a writ of mandate (Code Civ. Proc.,
§ 1085) to compel compliance, the enforcement provided for in the MOU. The trial court
denied the petition, adopting Correction’s position, first raised in the trial court, that the
Department lacked jurisdiction to decide the grievance because the State Personnel Board
(SPB) had exclusive jurisdiction over appointments and the employment status of civil
service employees and the foundation of the Department’s decision was the finding that
Gardner was an employee of Corrections in November 2001.
       The Association appeals, contending the grievance at issue is not under the
exclusive jurisdiction of the SPB because it is not a merit-based grievance. We agree.
We conclude the grievance at issue did not implicate the merit principle, set forth in the
California Constitution, and therefore the SPB did not have exclusive jurisdiction. The
MOU expressly provided that a grievance based on a reemployment USERRA claim, the
claim actually decided, be appealed to the Department. Further, by acquiescing in the
grievance procedure used, Corrections forfeited any claim that it was the wrong
procedure. We reverse the judgment.
                                           FACTS
       In August 2011, the Association filed a grievance on behalf of Sammie Gardner.
The grievance stated that Gardner had applied for a position with Corrections in 2000
while he was on active duty with the United States Air Force. Gardner received two job

                                               2
offers from Corrections, one in July 2001 and one in November 2001. Gardner began
separation from service in about August 2001.
       After and because of the terrorist attacks of September 11, 2001, Gardner was
reinstated to active duty and was unable to report to Corrections for the November 2001
academy. Gardner reported his unavailability to a Corrections sergeant and was told to
report at the end of his tour of duty and that he would be assigned to the next academy.
Gardner was released from duty in December 2002 and reported to Corrections. He was
told there was a hiring freeze in effect and that he would need to reapply. Corrections
hired Gardner in 2005. There had been a Corrections academy in November 2003, which
Gardener had not been able to attend because according to Corrections he was not an
employee.
       The grievance alleged that Corrections had violated USERRA by withholding
employment from Gardner due to his military service. 1 As the “Rule,” it cited USERRA,
Government Code section 19775.18, and two provisions of the MOU relating to
USERRA. The grievance set forth two “scenarios” that applied to Gardner. First, if
Corrections withdrew the employment offer due to Gardner’s military status, it violated
USERRA by discriminating against him due to his military status (the discrimination
claim). Second, if Corrections did not withdraw the offer, then Gardner accepted it and
Corrections had a duty to re-employ him upon return from military duty (the




1 Corrections complains that “Gardner sat on his claims for ten years.” As the trial court
noted, the issue of the timeliness of the grievance was not raised. The MOU requires
raising the grievance with the employee’s supervisor within 21 days of the violation or
reasonable knowledge thereof. While USERRA has no statute of limitations, a USERRA
claim is subject to the defense of laches. (Rogers v. City of San Antonio (5th Cir. 2004)
392 F.3d 758, 773; Miller v. City of Indianapolis (7th Cir. 2002) 281 F.3d 648, 653-654.)

                                            3
reemployment claim).2 Under either scenario, the grievance asserted that “Gardner is
eligible for employment effective November 2001.”
       As remedies for the USERRA violation, the grievance sought remuneration for all
merit salary increases Gardner would have received had he not been deployed;
recalculation of his time worked, including overtime; credit for all leave credit as if he
had not been deployed; recalculation of his seniority status; recalculation of his
retirement to reflect a November 2001 start date; and any remedies “deemed just, proper
and mutually agreed upon.”
       Article six of the MOU provided a procedure for certain grievances. Merit system
appeals, under the jurisdiction of the SPB, were not grievable under the MOU. Merit
system appeals included merit complaints and equal employment opportunity (EEO)
complaints. The grievance procedure was first an informal discussion with the
employee’s supervisor, two steps of formal appeal to Corrections, and for certain
grievances, including those under section 10.17 (leave for military service), an appeal to
the Department. If the Department responded to the grievance by providing a remedy for
the alleged violation, the Association could enforce the remedy by filing a writ of
mandate pursuant to Code of Civil Procedure section 1085. If the Association was not
satisfied with the decision, “only the [Association] may appeal the decision to binding
arbitration.”
       Section 10.17 of the MOU addressed absences for duty in the uniformed services.
It made reference to USERRA and stated that for California employees, USERRA was
supplemented by Government Code sections 19770 through 19786. Section 10.17 set
forth a summary of the relevant duties and obligations of both employers and employees



2 Corrections took the position that Gardner rejected the employment offer when he
advised that he could not attend the academy due to his military service. Corrections
argued that due to this rejection there was no discrimination or duty to rehire.

                                              4
under the law. It summarized the law as to the required advance notice of military leave,
the required military leave, sick leave during military service, and the time limits for
reporting back to work after military service.
       The parties utilized the article six grievance procedure without objection.
Corrections denied both of Gardner’s formal appeals (steps two and three). The
grievance then went to the Department.3 In March 2012, the Department granted the
grievance and found Gardner eligible for seniority, retirement, and salary advancement
credit as if he had reported to work for the November 2001 academy. The Department
found “an employment relationship existed between Officer Gardner and [Corrections]
when a bona fide job offer was made in 2001. This relationship afforded him certain
protections under USERRA.”
       In late October or early November 2012, Corrections sent Gardner a check in the
amount of $15,000, as a “good faith payment.” Gardner was told he might have to give
the money back because a Corrections attorney had decided Corrections was not going to
abide by the Department’s decision. In a series of communications in March through
May of 2013 between attorneys for the Association and Corrections, Corrections
indicated it did not intend to comply with the Department’s decision.
       The Association petitioned for a writ of mandate in superior court to compel
Corrections to comply with the Department’s decision. In response, for the first time,
Corrections alleged that the Department lacked jurisdiction for the order because the SPB



3 Effective July 1, 2012, the Department was abolished by a reorganization plan that
created the Department of Human Resources (DHR). The duties and functions of the
Department were transferred to the DHR. The DHR is vested with the duties, purposes,
responsibilities, and jurisdiction exercised by the SPB as its designee with respect to the
SPB administrative and ministerial functions. The reorganization plan eliminated certain
functions of the SPB relating to investigating and hearing complaints of discrimination in
the civil service. (Gov. Reorg. Plan No. 1 of 2011, § 88, oper. July 1, 2012, Stats. 2012,
ch. 360, § 69.)

                                              5
has exclusive jurisdiction over appointments and employment status. Further,
Corrections contended the Department’s decision was too vague to implement.
       After allowing supplemental briefing, the trial court denied the petition. It found
the Department exceeded its jurisdiction in determining that Gardner was an employee of
Corrections in November 2001.
       The Association appealed.4
                                      DISCUSSION
                                              I
                Employment Rights of Members of the Uniformed Services
       A. USERRA
       USERRA was enacted “to encourage noncareer service in the uniformed
services”; to minimize disruption caused by service in the uniformed services “by
providing for prompt reemployment” “upon [] completion of such service”; and “to
prohibit discrimination against persons because of their service in the uniformed service.”
(38 U.S.C. § 4301, subd. (a).) “USERRA was enacted to protect the rights of veterans
and members of the uniformed services. [Citation.] Much of USERRA is devoted to
establishing ‘reemployment’ rights for persons who are absent from their jobs due to
service in the uniformed services. [Citations.] Additionally, USERRA prohibits
employers and prospective employers from discriminating and retaliating against service
members based on either their military service or their assertion of entitlement to rights
under USERRA. [Citation.] Because of USERRA’s compelling purpose, ‘it must be
broadly construed in favor of its military beneficiaries.’ [Citations.]” (Quick v. Frontier
Airlines, Inc. (D.Colo. 2008) 544 F.Supp.2d 1197, 1206-1207.)



4 Because we are asked to decide only the question of whether the Department had the
authority to issue its decision, we express no opinion on whether the decision itself is
correct.

                                             6
       USERRA provides both an anti-discrimination provision and a reemployment
rights provision. Under the anti-discrimination provision, “A person who is a member of,
applies to be a member of, performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion, or any benefit of
employment by an employer on the basis of that membership, application for
membership, performance of service, application for service, or obligation.” (38 U.S.C.
§ 4311, subd. (a).) Under this provision “an employer may not discriminate in hiring
based on a prospective employee’s unavailability due to his obligation to perform
military service.” (McLain v. City of Somerville (D.Mass. 2006) 424 F.Supp.2d 329, 335-
336 [violation of USERRA not to hire as police officer applicant who could not be
available for police academy due to service in the Army].)
       Under the reemployment provision of USERRA, “[A]ny person whose absence
from a position of employment is necessitated by reason of service in the uniformed
services shall be entitled to the reemployment rights and benefits and other employment
benefits of this chapter [] if—(1) the person . . . has given advance written or verbal
notice of such service to such person’s employer; (2) the cumulative length of the
absence . . . by reason of service in the uniformed services does not exceed five years;
and (3) . . . the person reports to, or submits an application for reemployment to, such
employer . . . .” (38 U.S.C. § 4312, subd. (a).)
       USERRA provides for jurisdiction in state court for an action to enforce rights
under USERRA against a state as employer. (38 U.S.C. § 4323, subd. (b)(2); Townsend
v. Univ. of Alaska (9th Cir. 2008) 543 F.3d 478, 482-483.) That jurisdiction, however, is
not exclusive. USERRA claims may be resolved in nonjudicial settings. (Garrett v.
Circuit City Stores, Inc. (5th Cir. 2006) 449 F.3d 672, 678 [USERRA claims subject to
arbitration].)



                                              7
       B. California Law on Military Leaves
       California law also provides for periods of military leave for employees. (Gov.
Code, §§ 19770 et seq.) Prior to the reorganization plan that eliminated the Department,
Government Code section 19770 provided: “Both the [SPB] and the [Department] have
responsibilities for carrying out certain provisions of this chapter as provided in
subdivision (b). [¶] (b) The [SPB] is responsible for the provisions of this chapter
pertaining to civil service examinations, list eligibility, appointments, reinstatements,
probationary periods, and status. The [Department] is responsible for the provisions of
this chapter on eligibility for military leave and the effect of these leaves on the
employee’s salary, vacation, sick leave, and seniority.” (Stats. 2002, ch. 60, § 2.)
       As to prospective employees, the law provides “a person in recognized military
service whose name was high enough on an employment list to be available for
certification for possible permanent appointment to a position while he or she was in the
armed forces of the United States shall retain his or her place on the list for three years
following the date of his or her release from military service . . . .”5 (Gov. Code,
§ 19775.4.) The Civil Service Act (Gov. Code, §§ 18500 et seq.) prohibits any
discrimination on the basis of medical condition, mental disability, or physical disability
(Gov. Code § 19702, subd. (a)).6 Beginning in 2014, the Fair Employment and Housing



5   In rejecting the grievance at steps two and three, Corrections took the position that
Gardner’s eligibility expired July 1, 2002. Although Government Code section 19775.4
appears relevant to Gardner’s situation, as the trial court noted, the parties did not address
it.
6 A previous version of this statute prohibited discrimination on any basis set forth in
Government Code section 12940. (Gov. Code, § 19702, as amended by Stats. 2004, ch.
788, § 10, pp. 6027-6030.) It was amended in 2012 as part of the Governor’s
Reorganization Plan No. 1 of 2011 to limit the SPB’s authority to consider discrimination
claims to only those based on medical condition, mental disability, or physical disability.
(Stats. 2012, ch. 360, § 69.)

                                              8
Act (FEHA) makes it an unlawful employment practice to refuse to hire or employ a
person based on military and veteran status. (Gov. Code § 12940, subd. (a) as amended
by Stats. 2013, ch. 691, § 1.)
       The only provision of California law specifically cited in the grievance is
Government Code section 19775.18 which applies only to members “of the California
National Guard or a United States military reserve organization . . . ordered to active duty
on or after September 11, 2001, as a result of the War on Terrorism.” (Gov. Code,
§ 19775.18, subd. (a).) Since Gardner was in the Air Force, this provision is
inapplicable. The grievance, therefore, was based on violation of USERRA, not the
violation of state law.
                                             II
                                 The Parties’ Contentions
       The Association contends the trial court erred in viewing the grievance as a merit-
based claim within the exclusive jurisdiction of the SPB. It asserts neither aspect of the
grievance was merit-based. It argues the claim of discrimination based on military status
does not implicate the merit principle because it has nothing to do with Gardner’s fitness
or qualifications as a correctional officer. The reemployment claim for salary and
benefits, the argument continues, is an issue within the authority of the Department, as set
forth in former Government Code section 19770, subdivision (b). The Association
stresses that section 6.10, subd. (A) of the MOU provides that USERRA grievances
(section 10.17 of the MOU) are appealed to the Department at the fourth step of the
grievance procedure. At the very least, the Association contends, the SPB and the
Department had concurrent jurisdiction over the grievance.
       Corrections contends the Department lacked jurisdiction to decide the grievance so
its decision is void and unenforceable. It argues the reemployment claim required a
finding that Gardner was employed prior to his military leave and the SPB has exclusive
jurisdiction over appointments, including the date of appointment. It also contends the

                                             9
discrimination claim was not grievable under the MOU. First, the MOU does not
mention discrimination claims in its summary of USERRA, so section 10.17 does not
cover USERRA discrimination claims. Second, the MOU expressly exempts merit
appeals from the grievance procedure and merit appeals include all EEO complaints as
set forth in the department operating manual (DOM) which covers discrimination based
on military or veteran status. Further, Corrections argues grievances under the MOU
cannot include pre-employment claims as such claims would require an expenditure of
funds not approved by the Legislature.
                                              III
                              The SPB and the Merit Principle
       The core dispute in this case is whether the grievance, alleging a violation of
USERRA, is merit based and therefore within the exclusive jurisdiction of the SPB. To
resolve this issue, we begin with a brief discussion of the merit principle and the SPB’s
role in implementing it.
       The SPB was established to administer the merit principle of civil service
employment. (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 184 (Pacific
Legal). The merit principle is enshrined in the California Constitution: “In the civil
service permanent appointment and promotion shall be made under a general system
based on merit ascertained by competitive examination.” (Cal. Const., art. VII, § 1.) The
“sole aim” of the merit principle is to eliminate “political favoritism in the state civil
service” and “to dismantle the spoils system in this state.” (California Attorneys, etc. v.
Schwarzenegger (2009) 174 Cal.App.4th 424, 433, 434.)
       The SPB is a constitutional agency charged with overseeing civil service laws. It
“shall enforce the civil service statutes and, by majority vote of all its members, shall
prescribe probationary periods and classifications, adopt other rules authorized by statute,
and review disciplinary actions.” (Cal. Const., art. VII, § 3.) By contrast, the (former)
“[Department] has jurisdiction over the state’s financial relationship with its employees,

                                              10
including matters of salary, layoffs and nondisciplinary demotions.” (Gilb v. Chiang
(2010) 186 Cal.App.4th 444, 465.)
       Because the merit principle is “inviolate” (Pacific Legal, supra, 29 Cal.3d at p.
194), neither a statute nor an MOU may contravene it. In California State Personnel Bd.
v. California State Employees Assn., Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4th 758,
the Legislature approved three collective bargaining agreements that provided for “post
and bid” pilot programs in those bargaining units. These programs required that
permanent appointment and promotion of employees eligible for post and bid positions
be based on seniority in state service. Our Supreme Court held the post and bid programs
violated the fundamental mandate of the merit principle. (Id. at pp. 775-776.) “[W]e
conclude the Legislature may not approve collective bargaining agreements requiring that
state employers make their permanent appointments and promotions based solely on the
seniority status of employees meeting all eligibility and ranking requirements, without
allowance for comparative merit evaluations of those employees.” (Id. at p. 772.)
       In State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512,
the SPB successfully challenged four MOUs that allowed covered employees to
challenge disciplinary actions either by seeking review before the SPB or by pursuing an
alternative grievance/arbitration procedure that bypassed the SPB. Our high court found
SPB’s constitutional authority to review disciplinary actions was a “ ‘necessary
counterpart’ ” to the SPB’s power to administer the merit principle. (Id. at p. 526.) “It
would be inimical to California’s constitutionally mandated merit-based system of civil
service, which is administered by the [SPB], to wholly divest that board of authority to
review employee disciplinary actions in favor of an MOU-created review board. This is
so because a state civil service based on the merit principle can be achieved only by
developing and consistently applying uniform standards for employee hiring, promotion,
and discipline. By vesting in the nonpartisan [SPB] the sole authority to administer the
state civil service system (Cal. Const., art. VII, § 3), our state Constitution recognizes that

                                              11
this task must be entrusted to single agency, the constitutionally created [SPB]. Because
employee discipline is an integral part of the civil service system, the [SPB]’s exclusive
authority to review disciplinary decisions is a critical component of the civil service
system.” (Id. at pp. 526-527.)
       Not every grant of certain functions relating to the employment of civil service
employees to an administrative agency other than the SPB violates the merit principle. In
Pacific Legal, supra, 29 Cal.3d 168, the court rejected a facial challenge to the State
Employer-Employee Relations Act (SEERA) that provided for collective bargaining for
state civil service employees. The court further rejected the claim “that the provisions of
SEERA granting PERB [the Public Employment Relations Board] jurisdiction to
investigate and devise remedies for unfair practices are irreconcilably in conflict with the
[SPB]’s jurisdiction to ‘review disciplinary actions’ under article VII, section 3,
subdivision (a).” (Id. at p. 196.) PERB’s “more specialized and focused task” to protect
against unfair labor practices did not conflict with the SPB’s jurisdiction over disciplinary
actions to protect the merit principle. (Id. at p. 198.) The court explained that PERB and
the SPB served different, but not inconsistent purposes, and as far as possible the
respective tasks of PERB and the SPB should be accommodated. (Id. at pp. 197-198.)
       In State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d
422, three applicants who had been rejected as traffic officer cadets with the California
Highway Patrol filed complaints with the Fair Employment and Housing Commission
(FEHC) asserting discrimination on the basis of physical handicap. The SPB sought an
injunction to prevent the FEHC or the Department of Fair Employment and Housing
from exercising jurisdiction over the applicants’ claims. The trial court granted a
permanent injunction, basing “its decision on article VII of our Constitution, which it
interpreted as granting to the Board ‘exclusive jurisdiction’ over all matters involving
state civil service employees.” (Id. at p. 427.) Our Supreme Court disagreed, finding the
merit principle “is unharmed by the watchdog functions of the fair employment agencies.

                                             12
Indeed, the principle of nondiscrimination reinforces the merit principle. The FEHA
guarantees that non-merit factors such as race, sex, physical handicap, and the like, play
no part in the appointment of civil service employees.” (Id. at p. 439.)
       In California Correctional Peace Officers Association v. State Personnel Bd.
(1995) 10 Cal.4th 1133, our Supreme Court considered Government Code section
18671.1, which requires the SPB to render a decision on a disciplinary matter within
alternative statutory deadlines and provides that if the SPB does not meet these statutory
deadlines, the employee may seek de novo review in the superior court. Our high court
held that by providing for de novo review in the superior court, the Legislature did not
violate the SPB’s constitutional authority to review disciplinary actions. The court
reasoned that since the constitutional “provision exists solely to ensure that the right to
appeal to the [SPB] exists, a statute which permits the employee to waive that right when
the [SPB] has failed to comply with the statutory time limit for decision and to seek
judicial review of an adverse action is not inconsistent with the present article VII,
section 3 of the Constitution.” (Id. at p. 1153.)
       Here, a grievance claiming violation of USERRA was appealed to the Department,
as provided in the fourth step of the grievance procedure in the MOU. 7 This grievance
procedure did not violate the merit principle. To the extent the grievance was based on
discrimination in initial hiring, it is analogous to the situation in State Personnel Bd. v.
Fair Employment & Housing Com., supra, 39 Cal.3d 422, where our Supreme Court
found the watchdog functions of fair employment agencies did not conflict with the merit
principle. “Indeed, the principle of nondiscrimination reinforces the merit principle.”
(Id. at p. 439.) Like the FEHA, the nondiscrimination provisions of USERRA guarantee



7 Corrections contends this grievance did not fall under section 10.17 of the MOU
relating to USERRA and therefore was not grievable under the MOU, an issue we discuss
in part IV, post.

                                              13
that non-merit factors such as military or veteran status “play no part in the appointment
of civil service employees.” (Ibid.) To the extent the grievance was based on a violation
of Gardner’s reemployment rights, the issue concerned his pay and benefits, an issue over
which the Department had responsibility under former Government Code section 19770,
subdivision (b). (Stats. 2002, ch. 60, § 2.) The grievance did not concern Gardner’s
initial employment, his qualifications for the job, or his eligibility based on competitive
merit evaluation. Thus, it did not implicate the merit principle. Rather, the grievance
concerned his federal reemployment rights following military service.
       Corrections contends this grievance did implicate the merit principle because the
Department determined Gardner’s employment status and the date of his appointment as
part of addressing and resolving the grievance. Corrections contends all issues relating to
appointment are within the exclusive jurisdiction of the SPB. We are not persuaded.
Corrections’ argument improperly focuses on the outcome of the decision rather than the
nature of the grievance. The gravamen of the grievance did not implicate the merit
principle because it did not concern whether Gardner’s “civil service permanent
appointment . . . [was] made under a general system based on merit ascertained by
competitive examination.” (Cal. Const., art. VII, § 1.) It was undisputed that Gardner
had completed all required examinations and was on the eligibility list and that
Corrections offered him employment in 2001. He was unable to timely report to the
academy due to an unplanned extension in his military service. The gravamen of the
grievance was that Gardener was unlawfully discriminated against and denied pay and
benefits to which he was entitled, either because he was not hired initially due to the
extension in his military service or because he was not rehired directly after completion
of his military service.
       Thus the grievance did not involve the administration of the state civil service
laws, the area where the SPB has exclusive jurisdiction. Instead, it involved the
application of federal law, USERRA. Federal law grants jurisdiction over USERRA

                                             14
claims to state courts where the employer is a state (38 U.S.C. § 4323, subd. (b)(2)), but
permits resolution of USERRA claims in nonjudicial settings (Garrett v. Circuit City
Stores, Inc., supra, 449 F.3d at p. 678). Under federal law, the SPB does not and cannot
have exclusive jurisdiction over a USERRA claim and the parties are free to select an
alternative forum for resolution of their dispute. Here the parties agreed in the MOU that
USERRA claims (at least reemployment claims) would be heard by the Department.
                                            IV
             Whether the Grievance was Covered by Provisions of the MOU
       Having determined that the California Constitution does not mandate that a claim
of violation of USERRA is within the exclusive jurisdiction of the SPB, we turn to the
question of whether the complaint was grievable under the terms of the MOU.
Corrections contends the MOU did not confer jurisdiction on the Department to decide
either the USERRA reemployment claim or the USERRA discrimination claim.
       The MOU expressly provides that a USERRA reemployment claim, a claim for
military leave under section 10.17 of the MOU, may be appealed to the Department.
Corrections contends this particular USERRA reemployment claim does not fall within
the provisions of the MOU because it requires a determination that Gardner was
employed by Corrections before his tour of duty was extended after September 11, 2001.
This requirement of an employment prerequisite does not make this claim unique or
unusual. All USERRA reemployment claims require that the claimant be an employee.
Reemployment rights under USERRA apply only to one absent “from a position of
employment.” (38 U.S.C. § 4312, subd. (a).) Applying Correction’s reasoning results in
the unworkable requirement that all USERRA reemployment grievances must first go to
the SPB for a determination that the grievant was a Corrections employee at the time of
his military leave and, if so, the claim goes to the Department for a determination of any
salary or benefits to which the grievant is entitled. Nothing in the MOU provides for this
dual track procedure for USERRA grievances.

                                            15
       As to the discrimination claim, Corrections contends that the MOU does not
mention discrimination claims in its summary of USERRA, so the MOU does not cover
USERRA discrimination claims. It argues that section 10.17 of the MOU, titled
“Absences for Duty in Uniformed Services,” covers only military leaves, not
discrimination. In addition, the MOU states that EEO complaints set forth in the DOM
are not grievable under the MOU. The DOM permits filing a complaint for
discrimination based on veteran status or military service.8
       Even if Correction’s analysis that the USERRA discrimination claim is not
grievable under the MOU is correct, it has failed to show any prejudice in submitting the
claim to the Department. Corrections argued the Department did not decide the
discrimination claim and the trial court agreed.
       Further, Corrections acquiesced in submitting both elements of the grievance to
the Department. It failed to object at any time throughout the grievance process and it
made a “good faith payment” after the Department’s decision was rendered. While
Corrections could not agree to transfer jurisdiction to the Department if the SPB had
exclusive jurisdiction because the merit principle was involved, we have found the
grievance did not implicate the merit principle. Having acquiesced to the procedure used,
Corrections has forfeited any claim, not based on constitutional mandate, that the
procedure was impermissible. (Nickerson v. Stonebridge Life Ins. Co. (2016) 63 Cal.4th
363, 374.)




8  The Association contends a discrimination claim based on military status was not the
type of discrimination claim that the SPB heard at the relevant time. It requests judicial
notice of the SPB Appeals Resource Guide and the SPB Evidentiary Hearing Process to
establish that the SPB heard only discrimination complaints based on physical disability,
mental disability, or medical condition. Because, as we explain, we need not decide this
issue, we deny the request for judicial notice.

                                            16
                                     DISPOSITION
       The judgment is reversed and the matter remanded to the trial court with directions
to issue a writ of mandate ordering Corrections to comply with the Department’s
decision. The Association shall recover its costs on appeal. (Cal. Rules of Court, rule
8.278.)




                                                       /s/
                                                 Duarte, J.



We concur:



      /s/
Blease, Acting P. J.




     /s/
Nicholson, J.




                                            17
