Volpei v. County of Ventura

Filed 11/7/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARK D. VOLPEI, 2d Civil No. B243954 (Super. Ct. No. VENC100395788) Plaintiff and Respondent, (Santa Barbara County)

v.

COUNTY OF VENTURA,

Defendant and Appellant.

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 Mark D. Volpei's claims for retaliation, harassment and discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) We conclude that Volpei 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 Volpei's right to a judicial forum for his statutory discrimination claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND In 1994, Volpei was an investigator for the Ventura County District Attorney's office. The Association entered into an MOA with the County governing Volpei's conditions of employment. In April 2011, Volpei filed a complaint against the County for retaliation, harassment, disability discrimination, and other claims pursuant to the FEHA. Among other things, he alleged that the County harassed him because he disclosed that the district attorney's office had abused its authority and violated the law. He alleged the County also harassed him because he testified for a co-worker in his co-worker's sexual harassment claim against the County. He also alleged that the County failed to accommodate his physical disability and that it violated the Public Safety Officer's Procedural Bill of Rights Act. (Gov. Code, §§ 3300-3312.) In its answer to Volpei's complaint, the County asserted 20 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 Volpei'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,