Cippollini v.
Filed 11/7/13 Cippollini v. County of Ventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
JOSEPH R. CIPOLLINI,
Plaintiff and
Respondent,
v.
COUNTY OF VENTURA,
Defendant and Appellant.
2d Civil No.
B243955
(Super. Ct.
No. VENC100395800)
(Santa
Barbara County)
An employee is a member
of a union whose collective bargaining
agreement provides that the union may submit a grievance to
arbitration. Here we conclude that this
provision does not preclude the employee with a statutory grievance against his
employer from filing a judicial action.
The County
of Ventura (County) appeals from an
order denying its petition to compel arbitration of Joseph R. Cipollini's
claims for retaliation, harassment and discrimination under the California Fair
Employment and Housing Act (FEHA). (Gov.
Code, § 12940 et seq.) We conclude
that Cipollini is not bound to arbitrate his claims under the terms of a
memorandum of agreement (MOA) between the County and his bargaining
representative, the Ventura County Deputy Sheriffs' Association (Association),
because the MOA does not provide for a clear and unmistakable waiver of Cipollini's
right to a judicial forum for his statutory
discrimination claims. We
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
In 1990, Cipollini was
an investigator for the Ventura County District Attorney's office. The Association entered into an MOA with the
County governing Cipollini's conditions of employment.
In April 2011, Cipollini
filed a complaint against the County for retaliation, harassment, disability
discrimination, and other claims pursuant to the FEHA. He alleged the County also harassed him
because he testified for co-workers in his co-workers' sexual harassment claim
against the County.
In its answer to Cipollini's
complaint, the County asserted 15 affirmative defenses, none of which invoked
an agreement to arbitrate. It conducted
written discovery, moved for summary judgment, and entered into stipulations
concerning the trial date.
In July 2012, the County
filed a petition to compel arbitration of Cipollini's claims, citing a
provision of the MOA. Article 30 of the
MOA sets forth a "Grievance Procedure." A "grievance" is defined to include
employee disputes over the terms of the MOA or "a complaint of illegal
discrimination because of the charging party's . . . sex, [or] physical
disability . . . ."
(MOA, § 3003.) The grievance
procedure begins with an informal complaint and then entails a three-step
formal complaint process. (MOA,
§ 3006.) "A grievance
unresolved in the steps enumerated above may
be submitted to arbitration by the Association by submitting a letter
requesting that the grievance be submitted to arbitration to the Director-Human
Resources within fourteen (14) calendar days after the Department Head renders
a decision." (MOA, § 3007(A),
italics added.) The MOA provides that
the decision of the arbitrator "shall be final and binding upon the
County, [the Association] and the employee affected, subject to judicial
review." (MOA, § 3007(D).) It also provides that "[a]t any step of
the grievance procedure the employee may represent himself . . . ." (MOA, § 3004.)
The trial court denied
the petition to compel arbitration because the arbitration provision was
unilateral and permissive and did not clearly and unmistakably waive Cipollini's
right to a judicial forum for his statutory discrimination claims. The court did not decide Cipollini's
alternative argument that the County waived arbitration by participating in
litigation for more than a year.
DISCUSSION
Upon petition of a
party, the trial court shall compel arbitration if it determines that an
agreement to arbitrate the controversy exists, unless the petitioner has waived
the right to compel arbitration. (Code
Civ. Proc., § 1281.2.) Strong public
policy favors arbitration and courts will indulge every intendment to give
effect to an agreement to arbitrate. (
Cal.4th 1, 9.) The policy in favor of
arbitration applies to arbitration provisions in collective bargaining
agreements, and contractual claims are generally presumed arbitrable. (Posner
v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 180; Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 434.) This presumption does not apply, however,
when an employee seeks to litigate a statutory claim. The arbitration provision for such claims
must be "particularly clear."
(Wright v. Universal Maritime
Service Corp. (1998) 525 U.S. 70, 79; Vasquez,
at p. 434.) An employee is bound to arbitration as the
exclusive forum for statutory claims only if the union "clearly and
unmistakably" waived his or her right to a judicial forum. (14 Penn
Plaza LLC v. Pyett (2009) 556 U.S.
247, 274 (14 Penn Plaza);
We consider de novo the question
whether an agreement to arbitrate exists.
(Molecular Analytical Systems v.
Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707.) We conclude that the provision that an
unresolved grievance "may be submitted to arbitration by the Association"
is not a clear and unmistakable agreement to arbitrate Cipollini's statutory
claims against the County.
The MOA in the instant
case is unlike the MOA in
247. In 14 Penn Plaza, a union clearly and unmistakably waived employee
rights to a judicial forum for federal statutory age discrimination claims with
this language: "claims made
pursuant to Title VII of the Civil Rights Act [and] the Americans with
Disabilities Act . . . shall be subject to the grievance and arbitration
procedure . . . as the sole and exclusive remedy for violations." (Id. at
p. 252.)
By contrast, the MOA
here provides that unresolved grievances "may be submitted to arbitration
by the Association." The provision
is permissive and unilateral. The
Association is not a party to the present controversy and did not submit the
grievance to arbitration. Moreover, the
MOA defines a grievance to include a "complaint of illegal
discrimination," but does not refer to the FEHA or any other statute. It does not, like the 14 Penn
discrimination claims." (
at p. 264.) Even if we construed the
grievance definition to implicitly include statutory claims, the provision that
unresolved grievances "may be submitted to arbitration by the
Association" does not clearly and unmistakably require an employee to
submit a grievance to arbitration as the "sole and exclusive remedy"
for a statutory violation. (
The County argues that
the arbitration provision applies to Cipollini (not just the Association)
because the MOA allows employees to prosecute grievances individually. (MOA, § 3004.) That Cipollini could have submitted his
claims to arbitration if the Association refused to, is beside the point. It is neither clear nor unmistakable that he
was so required. The County cites no
authority holding that a provision similar to the one here requires an employee
with a statutory grievance to submit to arbitration.
The County argues that
the word "may" has been construed in two other cases to make
arbitration mandatory. (
Cal.App.4th 520; International Assn. of
Bridge etc. Workers v. Superior Court (1978) 80 Cal.App.3d 346.) Neither case involved an employee's statutory
claims. In Ruiz, an employee was required under a collective bargaining
agreement to arbitrate defamation and tort claims that arose from the terms of
the collective bargaining agreement and were "inextricably
intertwined" with his previously arbitrated contractual claims. (Ruiz, at
p. 531.) In dicta, the court construed
the following language to be mandatory: "the matter may be referred to arbitration." (Id.
at p. 527.) But it also stated that
"Ruiz's contention that there was no mandatory agreement to arbitrate
appears to be a new argument on appeal, which is not properly addressed
here." (Id. at p. 532.)
an employer's contractual claims against a union for violating a no strike
clause in the collective bargaining agreement.
Because it did not concern statutory claims, the court did not consider
whether the provision that the employer and association "
agency mutually agreeable" was a clear and unmistakable wavier of
employees rights to a judicial forum. (
353.)
The word "may"
does not create a clear and unmistakable waiver here. It is permissive, or at least susceptible of
a permissive meaning, particularly where "shall" is used elsewhere in
the same provision. (MOA, § 3007(B)
["Arbitrator shall be selected by mutual agreement"]; § 3007(C)
["Costs of the Arbitration . . . shall be shared
equally . . . ."])
More is required to waive an employee's right to a judicial forum for
statutory claims. Even in
was "mandatory" and "binding," the individual employee's
right to a judicial forum was not waived because "grievances" were
not explicitly defined to include statutory discrimination claims. (Vasquez
v. Superior Court, supra, 80 Cal.App.4th at pp. 433-434.) The employee in Vasquez claimed that his discharge violated the FEHA. A collective bargaining provision required
"mandatory, binding arbitration" (id.
at p. 433) for disputes arising over "the interpretation or application of
any of the terms of this Agreement, including discharge." (Ibid.) Because the provision did not specifically
identify statutory discrimination claims, it did not clearly and unmistakably
waive his right to a judicial forum. (
U.S. at p. 82 [a union did not waive employee rights to a judicial forum for
statutory claims because the grievance procedure was limited to contractual
disputes].)
Similarly, in
(2013) 220 Cal.App.4th 534, our colleagues in Division Seven recently concluded
that an MOA did not clearly and unmistakably waive a health care worker's right
to a judicial forum for her FEHA claims.
The MOA did not specifically identify statutory claims and provided that
a party "may appeal the grievance to arbitration." (Id.
at p. 539.)
Cipollini's bargaining
representative did not clearly and unmistakably waive his
of contractual claims, and may have permitted Cipollini to voluntarily
arbitrate his statutory claims, but it did not unambiguously require
arbitration as the sole and exclusive remedy for his statutory discrimination
claim.
DISPOSITION
The order is
affirmed. Costs awarded to respondent on
appeal.
NOT CERTIFIED FOR
PUBLICATION.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Thomas
P. Anderle, Judge
Superior
Court County of Santa Barbara
______________________________
Law Offices of Mark
Pachowicz, APLC, Mark Pachowicz, Lanny M. Tron, Terry L. Tron, for Plaintiff
and Respondent.
Atkinson, Andelson,
Loya, Ruud & Romo, Ronald W. Novotny, Mark T. Palin, Edward C. Ho, for
Defendant and Appellant.
