Barber v. CA State Personnel Bd. ( 2019 )

See dissent
Filed 5/17/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PATRICK BARBER,
Plaintiff and Appellant, E068719
v. (Super.Ct.No. CIVRS1108683)
THE CALIFORNIA STATE OPINION
PERSONNEL BOARD,
Defendant and Respondent;
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Real Party in Interest and
Respondent.
APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,
Judge. Affirmed.
Altshuler Berzon and Jeffrey B. Demain and Danielle E. Leonard for Plaintiff and
Appellant.
California State Personnel Board, Alvin Gittisriboongul, Chief Counsel and
Dorothy B. Egel for Defendant and Respondent.
Janie H. Siess for Real Party in Interest and Respondent.
1
I.
INTRODUCTION
This is plaintiff and appellant Patrick Barber’s second appeal in this case and
raises an issue of first impression.1 Upon remand from Barber’s first appeal (Barber I),
defendant and respondent, the California State Personnel Board (SPB), awarded Barber a
lump sum back pay award, which resulted in Barber incurring increased income tax
liability. SPB denied Barber’s motion for recovery for increased tax liability. The trial
court upheld SPB’s decision and denied Barber’s petition for writ of mandamus. Barber
appeals the denial of his writ petition and motion for increased tax liability recovery.
Barber contends he is entitled to recover damages for incurring increased tax
liability because his increased tax liability was caused by real party in interest and
respondent, California Department of Corrections and Rehabilitation (CDCR),
improperly terminating his employment. Barber argues that awarding him such relief is
consistent with the remedial statutory purpose of Government Code section 19584,2 of
making an improperly terminated employee whole by restoring the employee to the
financial position he or she would otherwise have occupied had employment not been
wrongfully interrupted. We disagree. Barber is not entitled to increased tax liability
1
Barber’s first appeal was decided in the unpublished decision, Barber v.
California State Personnel Board (Oct. 24, 2014, E057014 [nonpub.opn.] (Barber I)).
2
Unless otherwise noted, all statutory references are to the Government Code.
2
recovery under section 19584 or to such recovery as equitable relief, because such relief
is not statutorily authorized. We therefore affirm the judgment denying such an award.
II.
FACTS AND PROCEDURAL HISTORY
We incorporate the undisputed facts summarized in Barber I, regarding Barber’s
employment history leading to his employer, CDCR, serving Barber with a notice of
adverse action and terminating him in April 2009. The notice of adverse action notified
Barber that he was dismissed from his position as a parole agent for alleged violations of
section 19572 (inexcusable neglect of duty, dishonesty, discourteous treatment of the
public or other employees, and behavior either during or outside of duty hours of such a
nature to cause discredit to the appointing authority or the person’s employment). SPB
and the trial court concluded that CDCR’s termination of Barber was proper. Barber
appealed (Barber I).
On October 24, 2014, in Barber I, this court reversed the trial court’s decision
upholding Barber’s termination, and ordered the trial court to issue a peremptory writ of
mandate directing SPB to set aside its decision sustaining CDCR’s dismissal of Barber
and award him “any other relief to which he is entitled.” This court concluded that the
notice of adverse action did not provide Barber with sufficient notice of the workplace
rules he allegedly violated or the specific manner in which the violation occurred. We
therefore held in Barber I that, “[w]ithout that notice, he was deprived of his due process
3
right to prepare an effective defense against the charge and to argue the appropriate
punishment.”
SPB issued a resolution setting aside its previous April 2011 decision, and ordered
CDCR to reinstate Barber and pay Barber all back pay and benefits that would have
accrued had he not been terminated in April 2009. SPB further directed that if the parties
were not in agreement on the amount of Barber’s salary and benefits recovery, the matter
was to be referred to the chief administrative law judge (ALJ) for a hearing. In April
2015, Barber was reinstated, and began working again and receiving salary and benefits.
Although as of October 2015, CDCR paid Barber approximately $500,000 in back
pay (over $450,000 in back pay and over $230,000 in benefits), in January 2016, Barber
submitted a request for additional recovery under section 19584 and a hearing. Barber
asserted that, “due to the large lump sum back pay payment [Barber] received in 2015, he
is now faced with a significantly greater tax burden than if he had been receiving his
salary on a yearly basis and paying his taxes accordingly.” Barber maintained that, as a
consequence, CDCR had a duty to return Barber to the condition he would have been in
had he not been dismissed and, as such, CDCR should reimburse Barber for his increased
tax liability from being paid a lump sum back pay award.
At a prehearing/settlement conference, Barber and CDCR disagreed on whether
Barber was entitled to additional reimbursement of wages to cover Barber’s increased tax
liability. The ALJ instructed the parties to brief the issue of whether Barber’s increased
tax liability was compensable under section 19584.
4
A. Motion to Allow Increased Tax Liability Recovery
In May 2016, Barber filed a motion to allow recovery for increased tax liability
under section 19584 as an element of back pay. The Los Angeles Police Protective
League joined Barber’s motion as amicus curiae and filed a supporting amicus brief and
reply. Barber asserted in his motion that the purpose of section 19584 is to make a
wrongfully terminated employee whole. Barber argued that, in making him whole,
CDCR was required to pay him for incurring approximately $145,000 in increased tax
liability, caused by receiving the lump sum back pay award.
Barber noted that, “[p]rior to 1986, it was not uncommon for courts to disallow the
award of increased tax liability in lump sum awards due to the availability of the
averaging provisions of the Tax Code which eliminate nearly all of the excess liability
that would otherwise result from a lump sum award. [Citation.] The 1986 Tax Reform
Act, P.L. 99-514 (1986), however, repealed the income averaging provision of the old
Revenue Code leaving all those receiving a lump sum award to suffer the consequences
of additional tax liability.” As a consequence, the Equal Employment Opportunity
Commission (EEOC) and National Labor Relations Board (NLRB) have awarded
compensation for increased tax liability resulting from lump sum back pay awards arising
from discrimination claims. Barber argued that CDCR was required to pay him
compensation for his increased tax liability because he would not be made whole without
such recovery.
5
CDCR argued in its opposition that section 19584 does not authorize
compensation for increased tax liability; SPB did not have jurisdiction to award
compensation for increased tax liability; Barber failed to cite any supporting binding case
law; and federal NLRB and EEOC case law does not support Barber’s position because
Barber’s case does not involve discrimination and there is a split of nonbinding federal
authority on whether damages for increased tax liability are recoverable.
B. June 2, 2016, Hearing on Motion for Increased Tax Liability Recovery
On June 2, 2016, an ALJ heard, telephonically, Barber’s motion for increased tax
liability recovery. No witness testimony or evidence was presented. Counsel for Barber
and CDCR presented oral argument. Barber, through his attorney, argued that section
19584 provided for back pay “salary,” in furtherance of making an employee whole after
being wrongfully terminated. Barber’s attorney acknowledged there was little, if any,
state case law on the issue and section 19584 did not include any specific language
authorizing broad equitable relief, as is included in Title VII of the Civil Rights Act.
Barber’s attorney argued that, nevertheless, the intent of section 19584 is to allow for
such relief. Barber’s attorney noted that Barber’s claim was unusual because he received
back pay for six years of salary. Usually, back pay is for a relatively short period of time,
resulting in minimal increased tax liability. In addition, counsel argued that, before tax
laws changed in 1986, receiving a lump sum back pay award was not a problem.
6
CDCR’s attorney argued section 19584 did not allow for increased tax liability
recovery because such relief is not salary or benefits. Counsel further argued the federal
case law Barber relied on is inapplicable because it is founded on federal law which,
unlike section 19584, contains language expressly allowing for broad equitable relief.
CDCR’s attorney stated that the legislature could amend the statute to allow for such
relief or it could be provided for in the memorandum of understanding, which currently
does not provide for increased tax liability recovery. The ALJ took the matter under
submission and issued a written decision on June 16, 2016.
C. SPB’s June 16, 2016, Ruling on Barber’s Motion
The ALJ stated in its June 16, 2016, written decision that section 19584 does not
mention recovery for increased tax liability. Furthermore, the terms “salary,” “benefits,”
and “‘special salary compensations’” do not encompass payment for increased tax
liability. The ALJ also considered and rejected the proposition that SPB had broad
equitable authority to make Barber whole, when section 19584 does not provide tax
liability relief. The ALJ concluded SPB was not vested with statutory or equitable power
to make Barber whole, beyond those remedies provided within the bounds of the
legislative framework and parameters established by the state Legislature in the State
Civil Service Act (§ 18500 et seq.). The ALJ recognized that section 19582, subdivision
(a) of the State Civil Service Act provides authority for SPB to make Barber whole, but
concluded such authority is limited by the statutory authority granted to SPB in section
19584. The ALJ noted that SPB did not have broad equitable authority to award tax
7
relief, unlike federal courts’ broad equitable powers to allow offsets for federal tax
consequences arising from awards under Title VII, including the ADEA3 and ADA.4
The ALJ concluded there was no case law supporting Barber’s contention that SPB had
authority to award him recovery for increased tax liability. The ALJ therefore found that
SPB was not vested with statutory or equitable power to make Barber whole, beyond
remedies provided within the bounds of the legislative framework and parameters
established by the state Legislature in the State Civil Service Act. Accordingly, SPB
denied Barber’s motion for increased tax liability recovery.
D. Barber’s Writ Petition Challenging SPB’s Denial of His Motion
On August 5, 2016, Barber filed in the trial court a verified petition for writ of
mandate under Code of Civil Procedure sections 1085 and 1094.5, challenging SPB’s
ruling denying him increased tax liability recovery. Barber included copies of his tax
returns and tax tables for 2004 through 2015. Barber alleged that SPB erred in denying
his motion for increased tax liability recovery under Government Code section 19584.
Barber argued that the language in Government Code section 19584, stating “‘other
special salary compensations, if sufficiently predictable,’” should be construed as
permitting recovery for increased tax liability. Barber also argued that his increased tax
3
Age Discrimination in Employment Act (ADEA). (29 U.S.C. §§ 216(b),
623(a)(1).)
4
Americans With Disabilities Act (ADA). (42 U.S.C. §§ 12101-12213, 2000e-
5(g)(1).)
8
liability was a “‘predictable’” loss in actual back pay. Barber further asserted that the
purpose of Government Code section 19584 was to make the reinstated employee whole
and SPB had failed to do so by denying him tax liability recovery. Lastly, Barber
asserted that California public employees should have the same rights to recovery for
increased tax liability as private and federal employees. CDCR filed an answer to
Barber’s writ petition, and SPB filed opposition.
E. June 16, 2017, Trial Court Hearing on Barber’s Writ Petition
On June 16, 2017, the trial court heard oral argument on Barber’s writ petition.
Barber, in propria persona, argued that his tax documentation showed that his total tax
liability, had he received his annual salary during the six years he was dismissed from
employment, would have totaled about $5,300, whereas his tax liability on his lump sum
award is $161,000. He therefore must pay approximately $155,000 more in income tax.
Barber said he made about $110,000 a year. As a consequence of his lump sum award,
he was taxed at the highest rate, incurring $171,000 in state and federal taxes. Barber
argued that his increased tax liability was not speculative relief. It could be calculated
with sufficient accuracy. Barber added that he should not have to pay increased tax
liability caused by CDCR wrongfully terminating him. Barber argued he should be made
whole and should not be deprived of recovery for increased tax liability, when NLRB and
EEOC claimants, and civilian employees making ADA and Department of Fair
Employment and Housing claims can recover such relief. Barber noted that he did not
submit his tax return documentation to the ALJ at the hearing on his motion for increased
9
tax liability recovery because the ALJ told him not to because his motion solely
concerned a legal issue, and the ALJ was not going to address factual issues.
CDCR’s counsel responded that NLRB and EEOC decisions are inapplicable
because they do not involve administrative law, and Barber’s case does not involve
discrimination. CDCR’s attorney further argued that whether Barber incurred increased
tax liability was speculative because Barber lacked sufficient evidence proving his claim.
In addition, CDCR’s attorney argued that section 19584 does not include language
allowing for increased tax liability recovery, and there is no supporting case law.
The trial court noted that both parties agreed there was no California case law
directly on point. The trial court further noted that Barber’s increased tax liability was
ascertainable and that, if recoverable as a matter of law, the court could remand the
matter to the ALJ for a hearing on the factual issue of the amount recoverable. The trial
court took Barber’s writ petition under submission and later that day denied it.
The court stated in its minute order that Barber “concedes that there is no binding
authority under California case law.” The court further stated: “The language of Section
19584 is clear in that increased tax liability is not an element of compensable salary or
benefits under the code. If the legislature wanted to include that item, it could have
clearly stated so in the statute. This Court is disinclined to do so. Cases applying section
19584 opine that an item is only compensable when it is of the same general nature or
class of benefits. Tax liability is not a benefit, it is the opposite.” Barber filed a notice of
10
appeal of the June 16, 2017, order. On July 6, 2017, the trial court entered judgment
denying Barber’s writ petition.5
III.
STANDARD OF REVIEW
The parties agree this appeal concerns the purely legal issue of first impression, of
whether Barber can recover increased tax liability damages under section 19584 or as
equitable recovery for a constitutional due process violation.
“Our state Constitution contemplates that SPB shall be the forum in which civil
service disciplinary cases are first adjudicated.” (Alameida v. State Personnel Bd. (2004)
120 Cal.App.4th 46, 57.) SPB is the state administrative agency that initially adjudicated
Barber’s dismissal and award of back pay and benefits. SPB is “‘“created by, and derives
its adjudicatory power from, the state Constitution. (Cal. Const., art. VII, §§ 2
[membership and compensation of board], 3 [‘(a) The board shall enforce the civil
service statutes and, by majority vote of all its members, shall . . . review disciplinary
actions’]. . . .) Under that constitutional grant, [SPB] is empowered to ‘review
disciplinary actions.’ In undertaking that review, [SPB] acts in an adjudicatory capacity.
‘The [SPB] is an agency with adjudicatory powers created by the California
Constitution.’ [Citation.] As such [SPB] acts much as a trial court would in an ordinary
judicial proceeding. Thus, [SPB] makes factual findings and exercises discretion on
5
This court construed Barber’s notice of appeal to have been taken from the
July 6, 2017, judgment.
11
matters within its jurisdiction.”’” (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th
1, 13.)
SPB’s decision may be reviewed in the trial court by filing a petition for a writ of
administrative mandate, which may be brought only “for the purpose of inquiring into the
validity of any final administrative order or decision . . . .” (Code Civ. Proc., § 1094.5,
subd. (a); see also State Bd. of Chiropractic Examiners v. Superior Court (2009) 45
Cal.4th 963, 974.) “‘“On review the decisions of [SPB] are entitled to judicial deference.
The record must be viewed in a light most favorable to the decision of [SPB] and its
factual findings must be upheld if they are supported by substantial evidence.”’” (Fisher
v. State Personnel Bd., supra, 25 Cal.App.5th at p. 13.) “Where, as here, an appeal from
administrative mandamus proceedings presents questions of law, our review is de novo.”
(Alameida v. State Personnel Bd., supra, 120 Cal.App.4th at p. 52; see also Pollak v.
State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.)
IV.
PRINCIPLES OF STATUTORY CONSTRUCTION
In his appeal, Barber challenges the trial court’s and SPB’s interpretation of
section 19584. Both the trial court and SPB construed section 19584 as not allowing
recovery for increased tax liability caused by Barber receiving a lump sum back pay
award. Our review of the trial court’s ruling requires this court to interpret section 19584
de novo. (Department of Corrections & Rehabilitation v. State Personnel Bd. (2014) 227
Cal.App.4th 1250, 1256 (Martin).) We are thus required to apply an independent
12
standard of review to the issue of statutory construction raised in the instant appeal.
(Fisher v. State Personnel Bd., supra, 25 Cal.App.5th at p. 14.) In doing so, “‘[w]e give
great deference to the agency’s interpretation of statutes affecting issues within its
administrative sphere.’ [Citation.] However, we ‘do not necessarily defer to SPB’s
interpretations of the governing statutes. [Citation.] The judiciary takes ultimate
responsibility for the construction of statutes, although according great weight and
respect to the administrative construction such as is appropriate under the circumstances.’
[Citation.]” (Martin, supra, at p. 1256.)
When construing a statute, we apply the following well-settled principles of
statutory construction. In discerning the Legislature’s intent, “‘[t]he statutory language
itself is the most reliable indicator, so we start with the statute’s words, assigning them
their usual and ordinary meanings, and construing them in context. If the words
themselves are not ambiguous, we presume the Legislature meant what it said, and the
statute’s plain meaning governs. On the other hand, if the language allows more than one
reasonable construction, we may look to such aids as the legislative history of the
measure and maxims of statutory construction. In cases of uncertain meaning, we may
also consider the consequences of a particular interpretation, including its impact on
public policy.’ [Citation.] ‘“If possible, significance should be given to every word,
phrase, sentence and part of an act in pursuance of the legislative purpose.” [Citation.]
. . . “a construction making some words surplusage is to be avoided.” [Citation.] “When
used in a statute [words] must be construed in context, keeping in mind the nature and
13
obvious purpose of the statute where they appear.” [Citations.] Moreover, the various
parts of a statutory enactment must be harmonized by considering the particular clause or
section in the context of the statutory framework as a whole.’ [Citation.]” (Martin,
supra, 227 Cal.App.4th at p. 1256.) “‘“Ultimately we choose the construction that
comports most closely with the apparent intent of the lawmakers, with a view to
promoting rather than defeating the general purpose of the statute.”’ [Citation.]” (Lee v.
Hanley (2015) 61 Cal.4th 1225, 1233.)
V.
CONSTRUING SECTION 19584
Barber agrees that increased tax liability recovery is not a benefit within the
meaning of section 19584. Instead, Barber argues that increased tax liability recovery is
“salary,” as defined in section 19584. The current definition of “salary” was added to
section 19584 by amendment in 1994 by Senate Bill No. 846 (1993-1994 Reg. Sess.)
(Senate Bill 846). (Compare Stats. 1985, ch. 1195, § 6, p. 4051 with Stats. 1994, ch. 814,
§ 4, p. 4057; see also Martin, supra, 227 Cal.App.4th at p. 1259.)
The State Civil Service Act (§ 18500 et seq.) provides for compensation of
employees who have been wrongfully discharged from state service. (Swepston v. State
Personnel Bd. (1987) 195 Cal.App.3d 92, 95 (Swepston).) Section 19584 provides, in
relevant part: “Whenever the board revokes or modifies an adverse action and orders that
the employee be returned to his or her position, it shall direct the payment of salary and
all interest accrued thereto, and the reinstatement of all benefits that otherwise would
14
have normally accrued. ‘Salary’ shall include salary, as defined in Section 18000, salary
adjustments and shift differential, and other special salary compensations, if sufficiently
predictable.”
Section 18000 provides: “The salary fixed by law for each state officer, elective
or appointive, is compensation in full for that office and for all services rendered in any
official capacity or employment whatsoever, during his or her term of office, and he or
she shall not receive for his or her own use any fee or perquisite for the performance of
any official duty.”
In addition, California Code of Regulations, Title 2, section 51.2 (regulation 51.2)
states that “(A) ‘Back pay’ means the compensation Appellant would have received from
Respondent if Appellant had not been subject to an adverse action, . . . or
termination . . . , less any compensation Appellant earned or might reasonably have
earned in private or public employment during the period the action or rejection was
improperly in effect. [¶] (B) Back pay shall not include overtime compensation that the
Appellant may have earned from Respondent during the time period that Appellant was
not working for Respondent due to the adverse action.” (Regulation 51.2, subd.
(i)(1)(A).)
Back pay serves to make an employee whole for the employer’s wrongdoing.
(Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th
1122, 1133.) “‘“The appropriate standard for the measurement of a back pay award is to
take the difference between the actual wages earned and the wages the individual would
15
have earned in the position that, but for the [employer’s wrongful conduct], the individual
would have [held].”’” (Id. at p. 1134, quoting Mason v. Association for Independent
Growth (E.D.Pa. 1993) 817 F.Supp. 550, 553-554 and Gunby v. Pennsylvania Elec. Co.
(3d. Cir. 1988) 840 F.2d 1108, 1119.) The State Civil Service Act statutes and related
regulations limit the back pay relief recoverable to lost salary and benefits. There is no
mention in sections 18000 or 19584 or regulation 51.2 of any entitlement to recovery for
increased tax benefits.
In addition to adding the definition of “salary” in section 19584, the April 1994
legislative bill amending section 19584 deleted overtime compensation as a part of “back
salary.” (Assem. Com. on Public Employees, Retirement and Social Security, Analysis
of Sen. Bill No. 846 (1993-1994 Reg. Sess.) as amended Apr. 28, 1994, p. 2; see Sen.
Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 846 (1993-1994 Reg.
Sess.) Aug. 12, 1994, pp.5-6.) The Legislature did not define what it meant by
“compensation.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1117.) “Where different words or phrases are used in the same connection in
different parts of a statute, it is presumed the Legislature intended a different meaning.”
(Ibid.) We therefore presume the words “salary” and “compensation” differ in meaning.
The Legislature included in its definition of “salary” “other special salary
compensations, if sufficiently predictable.” (§ 19584, italics added.) The common
meaning of “compensation” is “payment.” (Webster’s 10th Collegiate Dict. (1993)
p. 234.) “[C]ompensation . . . earned” means earned payment. (Martin, supra, 227
16
Cal.App.4th at p. 1257.) “Section 19584’s use of the word ‘compensation’
unambiguously sweeps broadly and encompasses all earned payments.” (Id. at p. 1258,
italics added.) Increased tax liability is neither earned nor a payment. Therefore, it is not
“salary” or “special salary compensation” within the meaning of section 19584.
We disagree with the dissent’s broad construction of the section 19548 language,
“other special salary compensations,” as encompassing gross-up recovery for increased
tax liability. The dissent does so by broadly construing the word, “compensation,” and
parsing the term from the preceding words, which limit recoverable compensation to
“special salary.” These descriptive terms preceding and modifying “compensation”
narrow the type of compensation encompassed by the language, “other special salary
compensations.”
Even though the term, “compensation,” alone, can be construed broadly to include
compensation that is not salary, we conclude the legislature intended to limit the scope of
the term used within the section 19584 definition of salary by preceding the term,
“compensation,” with the limiting terms, “special salary.” By doing so, the statute
narrows the category of recoverable compensation to income paid for work performed.
We therefore conclude section 19584, as currently written, does not allow gross-up
recovery for increased tax liability as a recoverable category of damages. Furthermore, it
is not within this court’s authority to add to section 19584 this additional category of
recoverable compensation, because it is not encompassed by the statutory language,
“other special salary compensation.”
17
We also disagree with the dissent’s view that Barber’s increased tax liability
constitutes “sufficiently predictable” salary compensation. (§ 19584.) Barber’s increased
tax liability is not “predictable.” We recognize that it is foreseeable that back pay awards
will be taxed, and there normally is no tax exemption or ability to spread tax liability
beyond the year the lump sum award is received. (Clemens v. CenturyLink Inc. (2017)
874 F.3d 1113, 1116 (Clemens); Comm’r v. Schleier (1995) 515 U.S. 323, 327; 26
U.S.C.S. § 104(a)(2) [restricting income tax exclusion for personal injury awards to those
“received . . . on account of personal physical injuries or physical sickness.”].) As a
consequence, “a lump-sum award will sometimes push a plaintiff into a higher tax
bracket than he would have occupied had he received his pay incrementally over several
years.” (Clemens, supra, 874 F.3d at p. 1116.) But at the time of the wrongful
termination, it is unpredictable as to whether this will occur, because increased tax
liability turns on a multitude of factors, including the employee’s unique financial
situation at the time the lump sum award is received, the amount of the lump sum award,
applicable tax exemptions and deductions, the employee’s previous and current tax
brackets, the past and current tax laws, and the length of time it takes to resolve the
reinstatement claim. An employee’s increased income tax burden, derived from
receiving back pay in a lump sum, is attenuated and collateral to the wrongful discharge
and reinstatement of the employee.
18
In addition to the plain meaning of the language in section 19584 not supporting
recovery for increased tax liability, the statute’s history also does not support such relief.
The court in Martin provides a detailed discussion of the history of section 19584,
enacted in 1945 and amended most recently in 1994. (Martin, supra, 227 Cal.App.4th at
pp. 1259-1261.) The history of section 19584 reflects that there has not been any
analysis, contemplation, or intent by the legislature to provide reinstated employees with
recovery for increased tax liability. Allowing such recovery would likely lead to
imposing a new unanticipated financial burden on the State and its taxpayers.
The legislative history shows that section 19584 was amended in 1994 for the
purpose of clarifying the meaning of “salary” and the scope of back pay recovery. The
Assembly Commission on Public Employees’ analysis described Senate Bill 846,
amending section 19584 as: “Defines ‘back salary’ to mean [such] compensation items
as merit salary adjustments, shift differentials and other special differentials or
compensation if the back pay is sufficiently predictable. The current version of this bill
deletes overtime compensation as a part of ‘back salary.’” (Assem. Com. on Public
Employees, Retirement and Social Security, Analysis of Sen. Bill No. 846, supra, as
amended Apr. 28, 1994, p. 2; see Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis
of Sen. Bill No. 846, supra, Aug. 12, 1994, pp. 5-6; see also Martin, supra, 227
Cal.App.4th at p. 1260.)
19
The Assembly Ways and Means Commission analysis of Senate Bill 846 added
that, “[e]xpanding the definition of benefits to include back pay for employees who win
adverse action appeals would not result in significant new costs. This would merely
codify current practice.” (Analysis of Sen. Bill No. 846, supra, as amended Apr. 28,
1994, italics added; see also Martin, supra, 227 Cal.App.4th at p. 1260.) Because
significant new costs were not anticipated, it is unlikely the Legislature contemplated or
intended that the new language defining “salary” would include increased tax liability
recovery. Otherwise, the legislative budgetary analysis would likely have mentioned the
anticipated increased cost of allowing increased tax liability recovery.
Until the final August 26, 1994, amendment of Senate Bill 846, the relevant
provisions of the bill were described by the Senate Rules Committee under the title,
“Reinstatement, ‘make whole.’” The penultimate analysis stated: “Existing law (Sec.
19584) authorizes the payment of salary and accrued interest and the reinstatement of
benefits for a time period determined by SPB. It is within SPB’s jurisdiction to make the
employee ‘whole’ based on the facts of each case. [¶] This bill would add to the ‘back
salary’ definition such compensation items as: [¶] a. merit salary adjustments, [¶] b.
shift differentials and other special differentials or compensation if the back pay is
sufficiently predictable. [¶] This bill also adds to the definition of ‘benefits,’ those
benefits provided by collective bargaining agreements, state or department rules or
practices.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 846,
20
supra, Aug. 12, 1994, p. 5; see also Martin, supra, 227 Cal.App.4th at p. 1260.)
Increased tax liability recovery was not included in the definition of “back salary.”
The Senate Rules Commission’s final bill analysis described the bill amending
section 19584 as: “Defines salary for purposes of the law concerning reinstatement of an
employee [to] include salary adjustments and shift differential, and other special salary
compensation, if sufficiently predictable.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, Unfinished Business Analysis of Sen. Bill No. 846, supra, as amended Aug.
29, 1994; see also Martin, supra, 227 Cal.App.4th at p. 1260.)
This legislative history of section 19584 does not indicate that the Legislature
intended that section 19584, as amended, include recovery for increased tax liability
arising from a lump sum back pay award. While there is mention in the analyses of
section 19584 of intent to make a reinstated employee whole by paying back pay and
benefits, the language and history of the statute do not support the conclusion that the
Legislature intended that making the employee whole included paying the employee’s
increased tax liability. Had the legislature intended to allow for such recovery, the
legislature could have expressly added it.
In effect, Barber urges this court to judicially amend section 19584 to add
recovery not provided in section 19584. “Doing so ‘invite[s] this court to legislate a
statutory amendment by implication in violation of the separation of powers. Courts
routinely construe statutes enacted by the Legislature in their role as interpreters of the
law. . . . We may not usurp the function of the Legislature by adopting an amendment to
21
the same statute by implication where no amendment was intended.’” (Blankenship v.
Allstate Ins. Co. (2010) 186 Cal.App.4th 87, 100, quoting Bullard v. California State
Automobile Assn. (2005) 129 Cal.App.4th 211, 221.) Barber’s request for increased tax
liability recovery can be more appropriately addressed by the state Legislature by
amending section 19584, or by Congress and/or the state Legislature enacting tax laws
eliminating income tax liability for lump sum back pay awards, or by the CDCR
employees’ union and the Department of Personnel Administration, through negotiations,
adding increased tax liability recovery to the memorandum of understanding covering
CDCR employees.
We conclude Barber was made whole to the extent permissible under section
19584, and SPB was not authorized to provide any additional recovery beyond that, even
if it leaves Barber with uncompensated collateral losses. Just as with lost overtime,
increased tax liability is not recoverable under section 19584. (Regulation 51.2, subd.
(i)(1)(B); Swepston, supra, 195 Cal.App.3d at p. 94.)
In Swepston, supra, 195 Cal.App.3d at page 94, the court held that the reinstated
CDCR plaintiff was not entitled to recover lost overtime. After SPB revoked the
plaintiff’s termination, the parties stipulated that the plaintiff was entitled to back salary
and vacation pay. The sole issue at the SPB hearing was whether the plaintiff was
entitled to receive overtime compensation the plaintiff would have earned during the
period of wrongful dismissal.
22
In reaching its holding, the court in Swepston explained that “historically the term
‘salary’ has been used in the State Civil Service Act to denominate compensation of a
fixed sum for all services rendered. (§ 18000.) With respect to the compensation of state
employees for work performed in excess of the normal work week, the Legislature used
the phrase ‘overtime compensation.’ (See § 19844.) We presume that ‘salary’ was
intended to have the same meaning in the State Civil Service Act wherever used.
[Citation.] Hence, as used in section 19584, salary is exclusive of ‘overtime
compensation.’” (Swepston, supra, 195 Cal.App.3d at pp. 95-96.)
The Swepston plaintiff conceded that the word “salary” as used in section 19584
did not include compensation for overtime, nor could such a construction of the word be
supported. The plaintiff also acknowledged there was no statutory provision for overtime
compensation in the statute in effect when the Swepston plaintiff was dismissed and
reinstated. Nevertheless, the plaintiff argued he was entitled to overtime compensation
under the amendment to section 19584 in 1985, which reflected “an intent to ‘make
whole’ those employees whose adverse action is revoked or modified.” (Swepston,
supra, 195 Cal.App.3d at p. 96.) The Swepston court disagreed, concluding it could not
rely on the amendatory language because section 19584 in 1985, did not apply
retroactively to the plaintiff. (Swepston, supra, at p. 97.) The Swepston court added that,
even if the court could rely on the section 19584 amendment, under the ordinary rules of
statutory construction, nothing in the amended language of section 19584 authorized SPB
to compensate for overtime.
23
Similarly, in the instant case, we conclude section 19584 does not authorize
recovery for increased tax liability resulting from a lump sum award for back pay. We
recognize that Swepston is founded on a former version of section 19584. We
nevertheless conclude that the Swepston analysis applies here, because section 19584 is
fundamentally the same as it was when Swepston was decided, with the exception of
adding, for clarification purposes, the definition of “salary.” (Swepston, supra, 195
Cal.App.3d at p. 97.)
The instant case presents even stronger justification for denying recovery for
increased tax liability, because increased tax liability is not salary or benefits, as defined
in the post-Swepston version of section 19584, amended in 1994. Rather, increased tax
liability is a collateral consequence of receiving a lump sum award, as is lost overtime
compensation. (Swepston, supra, 195 Cal.App.3d at pp. 95-98.) This court is not free to
rewrite section 19584 to add increased tax liability recovery, when such inferred intention
is not supported by the statute’s language or legislative history. (Swepston, supra, at
p. 97.)
Barber argues that even if section 19584 does not expressly provide authority for
recovery of increased tax liability damages, he nevertheless is entitled to such recovery
based on language in section 19582, authorizing SPB to “render the decision that in its
judgment is just and proper.” (Martin, supra, 227 Cal.App.4th at p. 1258.) This
language in section 19582 does not authorize SPB to exceed its statutory authority under
24
section 19584 governing the calculation of an award of back pay and benefits. (Martin,
supra, at p. 1258.)
In Martin, the plaintiffs argued that SPB’s decision rejecting an overtime offset
from the plaintiffs’ back pay award should be upheld, because section 19582 grants SPB
broad authority to do whatever is “just and proper.” The court in Martin disagreed,
concluding that “[n]othing in section 19582 permits the Board to exceed the statutory
authority granted to it in section 19584. The portion of section 19582 that [the plaintiffs]
rely upon reads: ‘Hearings may be held by the board, or by any authorized
representative, but the board shall render the decision that in its judgment is just and
proper.’ (§ 19582, subd. (a.)) The clear meaning of this provision is that even if the
hearing is held before an authorized representative rather than the Board, it is the Board
that makes the ‘just and proper’ decision.” (Martin, supra, 227 Cal.App.4th at p. 1258,
italics added.) The Martin court thus rejected the proposition that section 19582 provides
SPB with broad authority to award relief beyond the statutory constraints and authority
provided in section 19584. As in Martin, Barber is not entitled to recovery under section
19582 beyond that which is permitted under section 19584.
VI.
EQUITABLE RELIEF UNDER FEDERAL LAW
Barber argues that even if section 19584 does not authorize recovery for increased
tax liability, he is nevertheless entitled to such recovery as equitable relief under federal
and state case law, based on CDCR’s violation of Barber’s due process rights. We
25
disagree.
A. Federal Case Law Regarding Increased Tax Liability Recovery
There is a split among the federal courts as to whether a plaintiff is entitled under
federal law to increased tax liability recovery resulting from a lump sum award. In the
2017 Ninth Circuit Court of Appeals decision, Clemens, supra, 874 F.3d 1113, the
plaintiff employee prevailed on a Title VII discrimination claim. The plaintiff argued
that, in addition to back pay and benefits, he was entitled to be made whole by receiving
recovery for increased tax liability from receiving a lump sum back pay award. The
Clemens plaintiff asserted that “the taxman’s expanded cut effectively denies him what
Title VII promises—full relief that puts Clemens where he would be had the unlawful
employment discrimination never occurred.” (Id. at p. 1116.) The Clemens court
vacated the lower court ruling denying the plaintiff recovery for increased tax liability
and remanded the matter for further proceedings. (Id. at p. 1115.)
The Clemens court noted that it was not the first tribunal to consider whether to
award the plaintiff employee damages for increased tax liability. The Third, Seventh, and
Tenth Circuits “held that district courts have the discretion to ‘gross up’ an award to
account for income-tax consequences.” (Clemens, supra, 874 F.3d at p. 1116; see Sears
v. Atchison, Topeka & Santa Fe Ry. Co. (10th Cir. 1984) 749 F.2d 1451, 1456 [court
upheld award for increased tax liability, given a district court’s “wide discretion in
fashioning remedies to make victims of discrimination whole.”]; Eshelman v. Agere
Systems, Inc. (3d Cir. 2009) 554 F.3d 426, 440-441 [terminated employee, who sued
26
employer under the ADA, is entitled to award offsetting increased tax liability the
employee would incur from receiving a lump sum back pay award]; E.E.O.C. v. N. Star
Hosp., Inc. (7th Cir. 2015) 777 F.3d 898, 904 [court in race discrimination and retaliatory
employment termination lawsuit joined “the Third and Tenth Circuits in affirming a tax-
component award in the Title VII context.”].)
The Clemens court acknowledged that in Dashnaw v. Pena (D.C. Cir. 1994) 12
F.3d 1112, the D.C. Circuit rejected an award for increased tax liability. The Dashnaw
court explained: “Dashnaw also argues that the District Court should have granted him
additional compensation to help cover the higher taxes he will have to pay because he
will receive his backpay in a lump sum rather than as salary paid out over a period of
years. Absent an arrangement by voluntary settlement of the parties, the general rule that
victims of discrimination should be made whole does not support ‘gross-ups’ of backpay
to cover tax liability. We know of no authority for such relief, and appellee points to
none. Given the complete lack of support in existing case law for tax gross-ups, we
decline so to extend the law in this case. We therefore reject Dashnaw’s request for
additional compensation to cover his tax liability.” (Id. at p. 1116.)
Similarly, in E.E.O.C. v. Federal Express Corp. (M.D. Pa. 2005) 537 F.Supp.2d
700, a sex discrimination case, the federal district court noted: “No decision of the Third
Circuit authorizes the amendment of a judgment to account for negative tax consequences
that result from a lump sum award of front or back pay. Courts within the circuit are
divided on the issue. Compare O’Neill v. Sears, Roebuck & Co. 108 F.Supp.2d 443, 448
27
(E.D.Pa. 2000) (finding increased tax liability damages appropriate, and noting plaintiff
supported her request with testimony from financial consultant) with Anderson v.
CONRAIL, 2000 U.S. Dist LEXIS 15978 at *14-15 (E.D. Pa. Oct. 26, 2000)[6] (refusing
to adjust award to account for tax consequences because such amendment would be
speculative, noting plaintiff had not supported her request with any evidence) and Shovlin
v. Timemed Labeling Sys., Inc., 1997 U.S. Dist. LEXIS 2350 at *7 (E.D. Pa. Feb. 28,
1997).[7]” (Id. at p. 719.)
The Clemens court maintained that the court in Dashnaw v. Pena, supra, 12 F.3d
1112 ignored the Title VII equitable underpinnings, as well as the Tenth Circuit’s
decision in Sears v. Atchison, Topeka & Santa Fe Ry. Co., supra, 749 F.2d at page 1456,
and the Supreme Court’s reasoning in Albemarle Paper Co. v. Moody (1975) 422 U.S.
405, 408, 415-417, 436 (employees are entitled to equitable relief, including back pay, in
class action brought against employer for injunctive relief against acts violative of equal
employment opportunity provisions of Title VII of the Civil Rights Act of 1964, as
amended by the Equal Employment Opportunity Act of 1972);8 Loeffler v. Frank (1988)
486 U.S. 549, 551-554, 558 (discharged male Postal Service employee, who brought
action against Postmaster General under Title VII of the Civil Rights Act of 1964,
6
Not reported in Federal Supplement Second.
7
Not reported in Federal Supplement Second.
8
Title 42 United States Code section 2000e et seq. (1970 ed. & Supp. III).
28
alleging discriminatory discharge on basis of sex, is entitled to recover prejudgment
interest as part of back pay); and Franks v. Bowman Transp. Co., Inc. (1976) 424 U.S.
747, 750, 757, 762 (in Title VII race discrimination action, the prevailing plaintiff
employees were entitled to retroactive seniority relief under the Civil Rights Act).
(Clemens, supra, 874 F.3d at p. 1117.)
The court in Clemens agreed with the analysis of the Third, Seventh, and Tenth
Circuits, holding that the district court may, in its discretion, award an employee gross-up
damages for increased tax liability from a lump sum award. (Clemens, supra, 874 F.3d at
p. 1117.) The Clemens court rejected the employer’s argument that such monetary relief
is legal, not equitable, concluding that the argument is “wrong under Title VII case law.”
(Ibid.; see also Lutz v. Glendale Union High Sch. (9th Cir. 2005) 403 F.3d 1061, 1068-
1069 [“[B]ack pay remains an equitable remedy to be awarded by the district court in its
discretion.”]; EEOC v. Joe’s Stone Crab, Inc. (S.D.Fla.1998) 15 F.Supp.2d 1364, 1380
[Title VII sex discrimination claim, in which federal district court held that “a district
court, in the exercise of its discretion, may include a tax component in a lump sum back
pay award to compensate prevailing Title VII plaintiffs”].)
Clemens and its progeny of similarly decided federal cases allowing increased tax
liability recovery, are brought under federal legislation expressly authorizing broad
equitable relief. The federal cases include discrimination claims brought under Title VII,
against a private or federal employer. Unlike the state Legislature enacting section
19584, “Congress armed the courts with full equitable powers in Title VII cases.”
29
(EEOC v. General Tel. Co. (9th Cir. 1979) 599 F.2d 322, 334-335; accord, Clemens,
supra, 874 F.3d at p. 1116; Albemarle Paper Co. v. Moody, supra, 422 U.S. at p. 418.)
In another relatively recent federal discrimination case against the U.S. Postal
Service and postmaster general, Graham v. Brennan, (U.S. Dist. Ct., D. Ore., Sept. 26,
2017, 1:16-cv-00242-CL) 2017 WL 5505800 (Graham),9 the court upheld increased tax
liability recovery for a lump sum front and back pay award but rejected increased tax
liability recovery based on the lump sum compensatory damages award. The sole issue
was whether the Postal Service was required to reimburse the plaintiff for her increased
tax liability from receiving the lump sum award for compensatory damages. The
Graham court acknowledged the issue was one of first impression but noted that in
O’Neill v. Sears, Roebuck and Co., supra, 108 F.Supp.2d 443, which involved an ADEA
claim, the court held that the plaintiff was entitled to enhancing damages to offset tax
consequences of receiving a lump sum payment of front and back pay, but not for
compensatory damages. (Graham, supra, 2017 WL 5505800 [at p. 2] [“Plaintiff is
entitled to an award for the increased tax liability she suffered because she received her
back pay as a single lump-sum payment, as this pushed her into a higher tax bracket than
she was in during her work life.”].)
The Graham court held that “Plaintiff paid more of her salary in taxes than she
otherwise would have and, consequently, was put in a worse financial position than she
would have been in absent Defendant’s conduct. Hence, in order to make her whole,
9
Not reported in the Federal Supplement.
30
Defendant must reimburse Plaintiff for the cost of the negative tax consequences suffered
as a result of making this payment in one lump sum.” (Graham, supra, 2017 WL
5505800 [at p. 3].)
The Graham court, however, rejected the plaintiff’s argument that she was entitled
to equitable relief for increased tax liability from receiving a lump sum compensatory
damages award, because Congress mandated that the plaintiff’s compensatory damages
be treated the same as any other type of taxable income. (Graham, supra, 2017 WL
5505800 [at p. 3].) “If Congress wished there to be a difference, it would have said so, as
it did with regard to damages ‘on account of personal physical injuries or physical
sickness[.]’ 26 U.S.C. § 104(a)(2). Instead, ‘Congress explicitly decided that
noneconomic damages were to be taxable when they are attributable to nonphysical
injury and Congress placed this tax burden on the plaintiff.’ [Citation.]” (Ibid.; accord,
Chuong Van Pham v. Seattle City Light (2007), 159 Wn. 2d 527, 537; 26 U.S.C.
§ 104(a)(2).) The Graham court added that there was nothing in the judgment award
mandating the manner in which the defendant was to pay out the compensatory damages
award. Therefore, unlike the lump sum back pay award, the plaintiff had the option of
reducing her tax liability for the compensatory damages award by negotiating a payment
schedule that minimized her tax burden. (Graham, supra, [at p. 4].)
In rejecting the Graham plaintiff’s contention that she was entitled to recovery for
increased tax liability arising from her compensatory damages award, the Graham court
stated that, “while the Court may have wide discretion in fashioning an equitable award,
31
this discretion does not permit the Court to circumvent the clear intent of Congress. And,
here, as explained, Congress has decided not only to treat such damages as taxable
income but also to place the burden of paying the necessary taxes on Plaintiff.”
(Graham, supra, 2017 WL 5505800 [at p. 4].)
The federal decisions allowing for increased tax liability recovery are
distinguishable because they are founded on federal legislation that includes language
expressly allowing for broad equitable relief. Section 19584 does not include such
language. Therefore, Barber is not entitled to equitable relief, where none is authorized.
B. State Case Law Regarding Awards for Constitutional Rights Violations
Barber also cites state case law, including Ofsevit v. Trustees of California State
University & Colleges (1978) 21 Cal.3d 763, Wilkerson v. City of Placentia (1981) 118
Cal.App.3d 435, for the proposition the court and SPB have authority to award recovery
for increased tax liability as equitable relief based on CDCR’s due process violation.
These cases are neither dispositive nor on point.
In Ofsevit v. Trustees of California State University & Colleges, supra, 21 Cal.3d
763, the defendant trustees of the California State University improperly denied the
plaintiff reappointment as an untenured lecturer based on his involvement in union
organization activities, in violation of his First Amendment free speech rights. The
California Supreme Court held in Ofsevit that the plaintiff was entitled to reinstatement
and damages, including lost benefits and net loss of salary. (Id. at pp. 775-776.)
32
In discussing whether the plaintiff in Ofsevit was entitled to back pay, the Supreme
Court discussed in a footnote the public policy of making a reinstated employee whole:
“We note that a plethora of statutory provisions both in California and elsewhere
demonstrates a general policy in favor of full back pay awards even in the absence of
constitutional violations. Thus, for example, under the National Labor Relations Act,
even an at-will employee who is improperly dismissed is entitled to an award of full back
pay from the date of the improper dismissal to the date of his reinstatement. (29 U.S.C.
§ 160(c).) As the United States Supreme Court explained in NLRB v. Rutter-Rex Mfg.
Co. (1969) 396 U.S. 258, 263: ‘[T]he purpose of the remedy is clear. “A back pay order
is a reparation order designed to vindicate the public policy of the statute by making the
employees whole for losses suffered on account of an unfair labor practice.” [Citation
omitted.]’ [¶] Numerous California statutes in the Education Code and in other areas
provide for similarly comprehensive back pay remedies.” (Ofsevit v. Trustees of
California State University & Colleges, supra, 21 Cal.3d at p. 777, fn. 14.)
While Ofsevit states that public policy supports making a reinstated employee
whole by paying back pay and benefits, there is no mention of requiring payment of
recovery for increased tax liability caused by a lump sum back pay award or providing
recovery beyond back pay and benefits, which are statutorily authorized. Ofsevit v.
Trustees of California State University & Colleges, supra, 21 Cal.3d 763 thus does not
resolve the issue raised in the instant case of whether the court or SPB has equitable
authority or authority under the state and/or the federal Constitutions to award recovery
33
for increased tax liability caused by a lump sum back pay award. Likewise, the courts in
Barber and Wilkerson do not address this issue.
The court in Wilkerson held that the plaintiff employee was entitled to
reinstatement and back pay for the city’s discharge of the plaintiff without full
substantive and procedural due process. (Wilkerson v. City of Placentia, supra, 118
Cal.App.3d at pp. 443-444.) “California courts have consistently held that a public
employee who has been deprived unlawfully of his position is entitled to recover the full
amount of the salary which accrued to him from the date of his unlawful discharge to the
date of his reinstatement.” (Id. at p. 443.) The issue of whether the plaintiff was also
entitled to recovery for increased tax liability was not raised or considered in Wilkerson.
Equitable relief also was not discussed. Wilkerson is therefore not dispositive as to
whether an employee is entitled to relief beyond that provided for in section 19584.
Under well-established rules of constitutional construction, we conclude neither
federal nor state law provides authority for awarding Barber increased tax liability
recovery. “Unlike the federal Constitution, which is a grant of power to Congress, the
California Constitution is a limitation or restriction on the powers of the Legislature.
[Citations.] Two important consequences flow from this fact. First, the entire law-
making authority of the state, except the people’s right of initiative and referendum, is
vested in the Legislature, and that body may exercise any and all legislative powers
which are not expressly or by necessary implication denied to it by the Constitution.
[Citations.] In other words, ‘we do not look to the Constitution to determine whether the
34
legislature is authorized to do an act, but only to see if it is prohibited.’ [Citation.] [¶]
Secondly, all intendments favor the exercise of the Legislature’s plenary authority: ‘If
there is any doubt as to the Legislature’s power to act in any given case, the doubt should
be resolved in favor of the Legislature’s action. Such restrictions and limitations
[imposed by the Constitution] are to be construed strictly, and are not to be extended to
include matters not covered by the language used.” (Methodist Hosp. of Sacramento v.
Saylor (1971) 5 Cal.3d 685, 691, italics added; accord, State Personnel Bd. v.
Department of Personnel Admin. (2005) 37 Cal.4th 512, 523.)
The state constitutional provision at issue here says that SPB “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, subd. (a), italics added; accord,
State Personnel Bd. v. Department of Personnel Admin., supra, 37 Cal.4th at p. 523.)
SPB’s authority is limited by the state Constitution and state statutory law. Statutory law
limits relief ordered by SPB to that which is stated in section 19584. The state and
federal Constitutions do not provide any authority to provide additional equitable or
monetary relief for increased tax liability in the instant case. Barber therefore is not
entitled to any relief beyond that which is statutorily authorized in section 19584.
We conclude, as the court in Martin did, that “[t]he federal authorities that [the
plaintiffs] cite are not pertinent here. Our task is to construe specific language in a
California statute. [The plaintiffs] do not suggest that any of these cases involved an
35
interpretation of statutory language like that in section 19584.” (Martin, supra, 227
Cal.App.4th at p. 1258.) The trial court therefore did not err in affirming SPB’s decision
denying Barber increased tax liability recovery. There is no federal or state case,
constitutional provision, or statutory law that supports awarding Barber such recovery.10
VII.
DISPOSITION
The judgment is affirmed. CDCR and SPB are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
I concur:
McKINSTER
Acting P. J.
10 We recognize Economy v. Sutter East Bay Hospitals (2019) 31 Cal.App.5th
1147, which addresses gross-up damages in a different context, was recently decided on
February 4, 2019, before oral argument on April 2, 2019. Neither party mentioned this
case during oral argument. Sutter is not dispositive because it does not involve
termination of a CDCR employee subject to relief under section 19584.
36
[Barber v. California State Personnel Board et al., E068719]
Slough, J., Dissenting.
This appeal boils down to whether we should interpret the phrase “other special
salary compensations” as allowing the California State Personnel Board (SPB) and courts
to award reinstated government employees “gross-up” back pay awards to ensure the
employees end up with the same after-tax net income they would have had if they hadn’t
been wrongly terminated in the first place. The majority says no. I disagree and write
separately to explain why.
The need for gross-up awards arises for wrongfully terminated employees who are
reinstated and recover more than a year’s salary and benefits in a lump sum. Under
current state and federal tax law, all income paid in a year, including lump sum back pay
awards, are taxed in the year the employee gets paid. Because the federal and state
income tax regimes are progressive—higher incomes are taxed at a higher rate—a large
lump sum payment can cause the reinstated employee to owe substantially more in taxes
than they would have owed had they received the same income over the course of
uninterrupted employment. (See generally, Ireland, Thomas, Journal of Legal Economics
51, Tax Consequences of Lump Sum Awards in Wrongful Termination Cases (Oct. 2010)
pp. 51-52.) As a result, such employees take home less income than they would have if
they’d never been wrongly terminated.
In this case, for example, Barber was paid all at once for six years of salary and
benefits. Though he was not permitted to put on evidence showing how much he paid, he
1
estimates he paid about $145,000 more in taxes than he would have paid had he worked
steadily through those six years and paid taxes on the income along the way. The
question we face is who bears the burden of this artifact of the tax laws, injured
employees or the government employers who wronged them? Put another way, does the
statute designed to return reinstated government employees to the financial state they
would have been in if they hadn’t been wrongfully terminated allow the award of gross-
up payments needed to accomplish that end?
Because this is a question of statutory construction, I begin with the language of
the provision governing the compensation of reinstated government employees.
“Whenever the board revokes or modifies an adverse action and orders that the employee
be returned to his or her position, it shall direct the payment of salary and all interest
accrued thereto, and the reinstatement of all benefits that otherwise would have normally
accrued. ‘Salary’ shall include salary, as defined in Section 18000, salary adjustments
and shift differential, and other special salary compensations, if sufficiently predictable.”
(Gov. Code, § 19584, unlabeled statutory citations refer to this code.)
Because “salary” is defined by the statute, we don’t apply the ordinary meaning of
the term. Instead, following the definition, we treat “salary” as having the following
components: salary as defined in section 18000, “salary adjustments,” “shift
differential,” and “other special salary compensations, if sufficiently predictable.”
Section 18000 defines salary as “[t]he salary fixed by law.” Salary adjustments are
incremental increases in salary—merit-based, automatic, or discretionary—that an
2
employee may receive within the salary range established for a position. (§§ 19829
[salary ranges]; 19832 [merit salary adjustments]; 19834 [automatic salary adjustments];
19836 [adjustments to address inequity, recruiting problems, extraordinary
qualifications].) Shift differential pay is a premium paid to employees for working
certain nonstandard and less desirable shifts. (Huntington Memorial Hospital v. Superior
Court (2005) 131 Cal.App.4th 893, 898; Vector Resources, Inc. v. Baker (2015) 237
Cal.App.4th 46, 51.)
None of these components of salary could, even arguably, extend to allow the kind
of gross-up award Barber seeks. Only the category “other special salary compensations”
may be broad enough to encompass such relief. Thus, the question we face is whether
payments to an employee to compensate them for additional taxes they’re required to pay
on a lump sum back pay award qualifies as a special salary compensation. My
disagreement with the majority reduces to a single word. They interpret “compensations”
as referring to payments an employee earns for work. Since gross-up awards are not
payments earned through work, but rather payments ordered to compensate for income
lost by operation of the tax laws, the majority concludes such awards aren’t authorized by
the statute.
I take a different view of the meaning of the word “compensations.” I believe the
word is broad enough to cover compensating the employee for work and for injuries
related to the wrongful termination. Thus, I interpret “special salary compensations” as
3
being a catchall provision that allows the SPB and courts to fashion appropriate remedies
to ensure the employee is made whole.
Dictionaries confirm the point. Compensation means “the act or state of
compensating, as by rewarding someone for service or by making up for someone’s loss,
damage, or injury by giving the injured party an appropriate benefit.” (Dictionary.com
[as of May 13, 2019], italics
added.) It also means “something given or received as an equivalent for services, debt,
loss, injury, suffering, lack, etc.; indemnity.” (Ibid., italics added.) A dictionary
published in 1991, roughly contemporaneous with the amendment that inserted the phrase
“special salary compensations,” contains the same ideas. Compensation is “something
that constitutes an equivalent or recompense,” and recompense is “to give something to
by way of compensation (as for a service rendered or damage incurred).” (Webster’s 9th
New Collegiate Dict. (1991) pp. 268, 984, italics added.)
These definitions plainly encompass the idea of income paid for work performed
and the idea of payments made to make up for an injury. Black’s Law Dictionary agrees,
though it breaks the two meanings into separate entries. “1. Remuneration and other
benefits received in return for services rendered; esp., salary or wages . . . 2. Payment of
damages, or any other act that a court orders to be done by a person who has caused
injury to another. In theory, compensation makes the injured person whole.” (Black’s
Law Dict. (8th ed. 2004) p. 301.)
4
How do we decide which is correct in this statutory provision? I don’t believe we
need to decide. The term itself is broad and general, as the government parties
acknowledge. I conclude the plain meaning of the statute includes both senses of the
word compensation. The term is designed as a true catchall. There may be other forms
of special salary payments not captured by the specific categories of statutory salary,
salary adjustments, and shift deferential pay. The statute allows the award of such
payments, if they’re predictable. Similarly, there are remedial awards that may help
ensure a wronged employee receives the same net salary they would have received if not
terminated. A gross-up award to account for increased tax liability falls into the latter
bucket, and I believe it is a form of compensation authorized by the statute. The fact that
the term is plural—“special salary compensations”—fits neatly with this interpretation.
The majority responds by doubling down on their interpretation—literally. Their
primary argument is that the word “compensation”—which they interpret to mean only
“payment for work”—is modified by the word “salary.” The argument is somewhat
opaque, but I believe they mean to say that since “salary” means “payment for work,”
that narrows the meaning of “compensation” to “payment for work” too. (Maj. opn.
p. 17.) I find this unpersuasive, primarily because it reads the concept of salary into the
phrase twice, making the modifier—“salary”—redundant. On their interpretation,
“salary” doesn’t so much modify “compensation” as repeat it. The interpretation I prefer
doesn’t suffer the same defect. I believe the word “salary” limits the term
“compensations”—in the sense of damages received to make up for injuries—to those
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payments made to compensate for injuries to the amount an employee received in salary
payments. Since the tax laws reduce the net salary a plaintiff receives, gross-up awards
that compensate for such an injury are “special salary compensations.”
The interpretation I propose is also preferable because it effectuates the purpose of
the statute. Section 19584’s plain aim is making whole employees injured by their
employer’s misconduct or mistake. “Whenever the board revokes or modifies an adverse
action and orders that the employee be returned to his or her position, it shall direct the
payment of salary and all interest accrued thereto, and the reinstatement of all benefits
that otherwise would have normally accrued.” As our Supreme Court has recognized,
about this provision as well as other back pay provisions, “[t]he purpose of the remedy is
clear. ‘A back pay order is a reparation order designed to vindicate the public policy of
the statute by making the employees whole for losses suffered on account of an unfair
labor practice.’” (Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21
Cal.3d 763, 777, fn. 14, quoting NLRB v. Rutter-Rex Mfg. Co. (1969) 396 U.S. 258, 263.)
The legislative history, though silent on the meaning of “special salary compensations,”
confirms this purpose. “It is within SPB’s jurisdiction to make the employee ‘whole’
based on the facts of each case.” (Off. of Sen. Floor Analyses, 3d reading analysis of
Sen. Bill No. 846 (1993-1994 Reg. Sess.) Aug. 12, 1994.)
There’s no question Barber suffered a loss to his net salary because of his
wrongful termination. So, ordering a gross-up award to make up for that loss is
necessary to return him to the position he would have been in had he not been wronged.
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Interpreting the statute as allowing such an award is therefore preferable because it
advances the statute’s make-whole purpose. (Lee v. Hanley (2015) 61 Cal.4th 1225,
1233 [“‘Ultimately we choose the construction that comports most closely with the
apparent intent of the lawmakers, with a view to promoting rather than defeating the
general purpose of the statute’”].) As the U.S. Court of Appeals for the Third Circuit
explained in reaching the same conclusion under the federal employment discrimination
statute, “Our conclusion is driven by the ‘make whole’ remedial purpose of the
antidiscrimination statutes. Without this type of [tax gross-up] equitable relief in
appropriate cases, it would not be possible ‘to restore the employee to the economic
status quo that would exist but for the employer’s conduct.’” (Eshelman v. Agere Sys.,
Inc. (3d Cir. 2009) 554 F.3d 426, 442.) While section 19854’s award provision is
different than the federal statute’s provision, both provide ample room for the deciding
agency or court to consider whether a tax liability gross-up award is appropriate under the
facts of the cases before them. I believe Barber’s is a case where a gross-up award is
appropriate.
The majority complains I would expand the court’s authority by “add[ing] to
section 19584 this additional category of recoverable compensation.” (Maj. opn. at
p. 17.) This rhetoric is empty and unnecessary. It is our job as a court to interpret
statutes in a way that is true to their plain meaning and puts their purpose into effect.
(Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 449.) Where the text and the
purpose support a broad interpretation, we should follow the Legislature’s lead.
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Adopting a hyper-narrow interpretation of such a statutory provision—as the majority
does here—isn’t a recognition of the limits of our authority, but an erroneous trimming of
the statute, in this case one which leaves the purpose of the statute on the cutting room
floor.
The government respondents argue allowing gross-up awards would have far-
reaching consequences for the state budget. “The statewide implication of imprinting
upon section 19584 an obligation by State agencies to make payments to State employees
a premium or ‘gross up’ to cover those employees’ increased tax liabilities is presently
incalculable, but assuredly significant.” I’m not so sure. As I explained above, the need
for a gross-up award is likely to arise only in cases where the employee obtained a lump
sum back pay award covering a period of years, perhaps many years. While there are
such cases, Barber’s is unusual in that he was kept out of his job for six years and then
compensated for the injury in a single payment. It seems unlikely such cases are
numerous enough to cause problems for the California budget. But it’s certain that
denying gross-up awards to reinstated government employees like Barber will make a
significant impact on their individual budgets.
Finally, there’s no reason to think proving the amount of a tax liability gross-up
award will be speculative. Back pay awards are backwards looking and figuring out the
tax consequences is a technical problem, solvable within a reasonable degree of certainty.
(See Ireland, Thomas, Journal of Legal Economics 51, Tax Consequences of Lump Sum
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Awards in Wrongful Termination Cases, supra, at pp. 52-53.) As a result, such awards
are very likely to be “sufficiently predictable,” as required by the statute.
The majority disagrees tax gross-up awards would be predictable, but only by
equivocating. The point of the restriction is to bar recovery for injuries that are too
speculative from the point of view of a factfinder at trial. (Department of Corrections &
Rehabilitation v. State Personnel Bd. (2014) 227 Cal.App.4th 1250, 1264 [holding it was
sufficiently predictable a reinstated employee would have received merit salary increases
to include them in the damages for wrongful termination].) But the majority reads
“sufficiently predictable” as limiting recovery to injuries that are foreseeable by the
wrongdoer at the time they violate a plaintiff’s constitutional rights. That’s the wrong
focus entirely, and is out of keeping with the general rule in tort recovery that
foreseeability is immaterial to tort damages. (6 Witkin, Summary of Cal. Law (11th ed.
2018) Torts, § 1343, p. 649.)
Barber estimated his increased tax liability in proceedings below. However,
because neither the SPB nor the trial court adjudicated the matter, I would reverse the
order denying Barber’s writ of mandate and order the trial court to direct the SPB to hold
a hearing on the appropriate amount of a gross-up award in his case.
SLOUGH
J.
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