Cippollini v. County of Ventura CA2/6

Filed 11/7/13 Cippollini v. County of Ventura CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Civil No. B243955 (Super. Ct. No. VENC100395800) 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 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