Guillermo v. Los Angeles County Dept. etc. CA2/5

Filed 12/1/20 Guillermo v. Los Angeles County Dept. etc. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MARICELA GUILLERMO, B296925
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS159674)
v.
LOS ANGELES COUNTY
DEPARTMENT OF HEALTH
SERVICES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
Rosen Marsili Rapp, Howard Z. Rosen, Amanda Pitrof,
for Plaintiff and Appellant.
Hausman & Sosa, Jeffrey M. Hausman, Larry D.
Stratton, for Defendant and Respondent.
__________________________
In 2012, the Los Angeles County Department of Health
Services (the Department) terminated appellant Maricela
Guillermo’s employment. Guillermo successfully petitioned
the trial court for a writ of mandate, and the court ordered
that she be reinstated and compensated pursuant to Los
Angeles County Code section 6.20.100 (section 6.20.100).
Guillermo was awarded back pay, which she received as a
lump sum, and because of the lump-sum nature of the
payment, incurred an additional tax liability of $226,862.
Guillermo requested that the trial court award her a “gross-
up” to neutralize the tax increase.1 The trial court denied
the motion, concluding that section 6.20.100 does not
authorize such an award.
On appeal, Guillermo contends that, pursuant to
section 6.20.100, the Department must compensate her for
the increased tax liability she incurred through no fault of
her own. The Department contends that we lack jurisdiction
to hear Guillermo’s appeal, but that, even if the court’s order
is appealable, section 6.20.100 does not authorize a gross-up
award to compensate Guillermo for tax consequences over
1 A “gross-up” is an award to a prevailing employee of
an additional sum of money to compensate for the increased
tax burden created by a back pay award made in a lump
sum.
2
which it has no control (and which have changed over the
years).
We agree with Guillermo that we have jurisdiction over
the appeal. However, we affirm the trial court’s order,
because we conclude that section 6.20.100 does not permit a
trial court to award a wrongfully terminated employee a
gross-up payment.
FACTS AND PROCEDURAL BACKGROUND
In April 2009, the Department hired Guillermo in the
position of Pharmacy Services Chief II. On September 14,
2012, the Department discharged Guillermo based on her
“insubordination and refusal to follow instructions” as well
as her “failure to maintain confidentiality.” She appealed to
the Civil Service Commission (the Commission).
After an administrative hearing, the hearing officer
found that Guillermo was “‘not a model, but in general, a
problem as well as a problematic employee who tends to go
rogue in performing her duties, nonetheless, [the
Department] failed to present evidence sufficient . . . to meet
[the] preponderance of the evidence [standard]’ necessary to
support a discharge.” The hearing officer concluded that
“‘[w]hile the Department failed on technical grounds to
support its disciplinary action of discharging [Guillermo],
nevertheless it was successful in clearly establishing that
[Guillermo] was an extremely difficult employee to manage[,]
and . . . an out-of-control employee . . . . [T]he Hearing
3
Officer is compelled to recommend that [Guillermo] be
reinstated to employment with the Department without any
back pay and not necessarily to her former position as
Pharmacy Services Chief II.’” On October 7, 2015, the
Commission sustained the discharge, stating: “‘The
Department was successful in clearly establishing that
[Guillermo] was an extremely difficult employee to manage
and that she marches to the beat of her own drum. The
portrait of [Guillermo] as an out-of-control employee
persuades the Commission to sustain the Department.”
On December 22, 2015, Guillermo petitioned for writ of
administrative mandate. On January 31, 2017, the court
remanded the matter to the Commission to “make additional
findings or clarify the findings on which it relied to reach its
decision to discharge” Guillermo.
On November 29, 2017, following remand proceedings,
the Commission reinstated Guillermo, and imposed a 30-day
suspension.
On January 19, 2018, the trial court entered judgment
granting the writ of mandate, and ordering the Department
to reinstate Guillermo without loss of seniority and to
compensate her pursuant to section 6.20.100, with interest
thereon at a rate of 7 percent per annum from the date of her
discharge, September 12, 2012, through the date of payment.
The trial court further ordered the Department to provide
Guillermo with “all of the fringe benefits that she would
have had but for her termination until her reinstatement
less the period of her 30-day suspension . . . .”
4
In June 2018, the Department reinstated Guillermo,
and the following month, paid her $655,849.96 in back pay
and $180,691.27 in interest, most of which relates to years
prior to 2018.
On November 9, 2018, Guillermo filed a motion in the
trial court for an order directing the Department to
compensate her for the excess tax liability she incurred as
the result of the lump-sum reinstatement payments. As
authority to make such a compensation award, the motion
relied solely on section 6.20.100, which provides: “In the
event an employee is reduced, suspended and/or discharged,
and upon appeal the civil service commission or a court
having jurisdiction does not sustain such reduction,
suspension and/or discharge, the employee shall be entitled
to his base rate of salary, vacation and sick leave as if such
unsustained reduction, suspension or discharge had not been
invoked. However, in no event shall an employee be entitled
to any salary or credit for vacation and sick leave for any
period of time covered by a suspension which is sustained or
for any period of time waived by an employee as a condition
to the granting of a continuance of his civil service or judicial
hearing.” Based on the calculations of a CPA and expert in
tax planning and preparation, Guillermo contended her
federal and state tax liability was $226,864 greater than the
amount she would have paid in each tax year had she not
been discharged.
In a written order filed on February 19, 2019, the trial
court denied the motion for excess tax liability
5
compensation, concluding that the “express language of the
ordinance says nothing about payment of tax liability. Even
as modified by the phrase ‘as if such unsustained . . .
discharge had not been invoked,’ the terms ‘base rate of
salary,’ ‘vacation,’ and ‘sick leave’ cannot reasonably be
interpreted to include payment of tax liability.”
Guillermo appealed to this court on April 15, 2019.
DISCUSSION
This Court Has Jurisdiction
The Department contends that we lack jurisdiction to
hear the appeal because Guillermo’s post-judgment motion
seeking gross up relief neither enforced nor stayed the trial
court’s judgment, and she did not file her appeal until
approximately 15 months after the judgment was entered.
We disagree.
Code of Civil Procedure section 1097 authorizes a trial
court to “make any orders necessary and proper for the
complete enforcement” of a writ of mandate. It is a “‘well
settled rule that the court which issues a writ of mandate
retains continuing jurisdiction to make any orders necessary
and proper for the complete enforcement of the writ.’
[Citations.]” (King v. Woods (1983) 144 Cal. App. 3d 571,
578.) Code of Civil Procedure section 904.1, subdivision
(a)(2), in turn, permits an appeal from an order to enforce a
6
judgment. (Lakin v. Watkins Associated Industries (1993) 6
Cal. 4th 644, 651–652.)
The Department relies on APRI Ins. Co. v. Superior
Court (1999) 76 Cal. App. 4th 176 (APRI), which holds that a
trial court loses jurisdiction to reconsider its ruling after
entry of judgment. (Id. at p. 180.) APRI is inapposite. The
trial court did not reconsider its ruling in this case.
Guillermo’s motion for relief could not have been made until
the Department determined the amount of her back pay;
accordingly, the motion was an effort to enforce the
underlying writ of administrative mandate under Code of
Civil Procedure section 1097. The trial court had
jurisdiction to hear the motion, and the notice of appeal,
which was filed within 60 days of the court’s order, was
timely. (Cal. Rules of Court, rule 8.104(a)(1)(B) & (C).) We
have jurisdiction to hear the appeal.2
Section 6.20.100 Does Not Permit Gross Up Awards
Guillermo received her back salary payment from the
Department in a lump sum in 2018, which pushed her into a
2 The Department also argues that Guillermo failed to
file a Government Code claim in connection with her motion.
The argument is simply another version of the primary
jurisdictional argument—that the motion for a gross-up was
an attempt to modify rather than to enforce the judgment.
Because we conclude that the motion was a lawful attempt
to enforce the judgment under section 6.20.100, the
argument necessarily fails.
7
higher tax bracket than would have applied if she had been
paid the salary over each of the years to which a particular
back pay amount applied (2012 to 2018). As a result, she
suffered greater tax liability than she would have if she had
been paid over time as an employee. She argues that section
6.20.100 requires that she be paid as if her termination had
not occurred—i.e. the Department must compensate her to
cover the additional tax liability. We reject Guillermo’s
contention, because the plain language of the ordinance does
not authorize gross up payments.
“Where, as here, an appeal from administrative
mandamus proceedings presents questions of law, our
review is de novo.” (Alameida v. State Personnel Bd. (2004)
120 Cal. App. 4th 46, 52.) We employ the same rules to
interpret both statutes and ordinances. (Chaffee v. San
Francisco Public Library Com. (2005) 134 Cal. App. 4th 109,
114.) In construing [an ordinance], our task is to discern the
drafters’ intent. (Wells v. One2One Learning Foundation
(2006) 39 Cal. 4th 1164, 1190 [statutory interpretation].) We
start with the ordinance’s words, “assigning them their
usual and ordinary meanings, and construing them in
context. If the words themselves are not ambiguous, we
presume the [drafters] meant what [they] said, and the
[ordinance’s] plain meaning governs.” (Ibid.) Our role “is
simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been
omitted, or to omit what has been inserted; and where there
are several provisions or particulars, such a construction is,
8
if possible, to be adopted as will give effect to all.” (Code Civ.
Proc., § 1858.)
We again quote the language of section 6.20.100, as it
is key to the question we are asked to decide. “In the event
an employee is reduced, suspended and/or discharged, and
upon appeal the civil service commission or a court having
jurisdiction does not sustain such reduction, suspension
and/or discharge, the employee shall be entitled to his base
rate of salary, vacation and sick leave as if such unsustained
reduction, suspension or discharge had not been invoked.
However, in no event shall an employee be entitled to any
salary or credit for vacation and sick leave for any period of
time covered by a suspension which is sustained or for any
period of time waived by an employee as a condition to the
granting of a continuance of his civil service or judicial
hearing.” (§ 6.20.100.)
Guillermo argues that section 6.20.100 unambiguously
provides for a gross-up award because it entitles a reinstated
employee to her “base rate of salary . . . as if” she had not
been discharged, which necessarily encompasses tax
neutralization, where appropriate. Without a gross-up,
Guillermo would receive significantly less than the taxable
salary she would have received had she never been
discharged.
The Department contends that “base rate of salary”
refers to one part of an employee’s overall compensation—
direct monetary compensation at a monthly rate. The
Department argues that the meaning is reflected in section
9
6.26.040, the County of Los Angeles Salary Table, which lists
the monthly rates for positions that are on a one-step, two-
step, three-step, four-step, and five-step rate of
compensation. (See L.A. County Code, § 6.26.010.) The
Department asserts that the base rate of salary is unaffected
by the tax liability an employee incurs.
We agree with the Department that the language of
section 6.20.100 is unambiguous. The section lists “base rate
of salary, vacation and sick leave,” which are separate
elements of an employee’s compensation. If there were any
ambiguity in the plain meaning of “base rate of salary,” it
would be easily resolved by consulting the County of Los
Angeles Salary Table included in the Los Angeles County
Code, which lists monthly rates of monetary compensation
as “salary.”
We are not persuaded that the commonly understood
definition of “base rate of salary” renders the ensuing
phrase, “as if such . . . discharge had not been invoked,”
superfluous. “[A]s if such . . . discharge had not been
invoked” clearly sets forth the time period for which the
employee is to be paid—i.e., the period between the date of
the unsustained discharge and the date of the employee’s
reinstatement. The subsequent sentence in section 6.20.100
reinforces this interpretation, as it creates an exception for
the days that an employee is suspended or waives time
within the relevant time period. (“However, in no event
shall an employee be entitled to any salary or credit for
vacation and sick leave for any period of time covered by a
10
suspension which is sustained or for any period of time
waived by an employee as a condition to the granting of a
continuance of his civil service or judicial hearing.”) When
“salary” is read as commonly defined, there is no overlap
with the phrase “as if such . . . discharge had not been
invoked,” and full effect is given to all of the language in
section 6.20.100. (Medical Board v. Superior Court (2001) 88
Cal. App. 4th 1001, 1013 [courts are to construe language in a
manner that gives effect to all parts of a statute where
possible].)
If the Los Angeles County Board of Supervisors (Board
of Supervisors) had intended for section 6.20.100 to include
payment of tax liability it would have expressly said so, or
incorporated catch-all language authorizing the court to
provide other equitable relief.3 Section 6.20.100 does not
expressly provide for a gross up or vest the court with
3 At the invitation of the court, both parties submitted
letter briefs on the significance of section 5.25.055 of the Los
Angeles County Code, which provides that a reinstated
employee receive a gross-up in connection with the Deferred
Compensation and Thrift Plan. The parties agree that
section 5.25.055 does not shed light on the interpretation of
section 6.20.100. We therefore deny the parties’ requests for
judicial notice of the legislative history of section 5.25.055
and the County’s related motion to present additional
evidence.
11
equitable powers that would permit it to award a gross up.4
Guillermo points to no authority holding that a court has the
authority to award a gross up based on statutory language
as precisely limited as section 6.20.100.5
4 We previously granted Guillermo’s request for
judicial notice of various ordinances relating to the
legislative history of section 6.20.100. We hereby deny
Guillermo’s additional request, deferred to this panel, to
take judicial notice of certain email correspondence between
appellant’s counsel and the county’s customer service center
regarding an ordinance (No. 10,034) missing from the
county’s archives.
5 Guillermo cites to authority, including Ofsevit v.
Trustees of California State University & Colleges (1978) 21
Cal. 3d 763, 777, fn. 14, for the general proposition that the
purpose of a back pay order is to make employees whole for
losses suffered as a result of unfair labor practices. This
general proposition, however, does not address the specific
issue of compensation for increased tax liability under
section 6.20.100. Guillermo relies on several federal
antidiscrimination cases that have held that a trial court has
the authority to award a gross up where a discharged
employee has been reinstated. (Clemens v. CenturyLink Inc.
(9th Cir. 2017) 874 F.3d 1113, 1115–1117 (Clemens); EEOC
v. Northern Star Hospitality, Inc. (7th Cir. 2015) 777 F.3d
898, 903–904 (Northern Star Hospitality); Eshelman v. Agere
Sys. (3rd Cir. 2009) 554 F.3d 426, 441–443 (Eshelman);
Sears v. Atchison, T. & S. F. R. Co. (10th Cir. 1984) 749 F.2d
1451, 1456–1457 (Sears).) These cases are inapposite.
Guillermo was not terminated for a discriminatory reason,
and section 6.20.100 does not authorize “any other equitable
12
As Guillermo concedes, the single California case to
which she cites that addresses gross up damages, Economy
v. Sutter East Bay Hospitals (2019) 31 Cal. App. 5th 1147
(Economy), does so in a different context. There, the Court
of Appeal held that a hospital was required to provide an
anesthesiologist with appropriate peer review procedures
and due process protections prior to terminating his ability
to practice, and that the anesthesiologist was entitled to lost
income damages for period in which the discipline he
suffered was invalid. (Id. at pp. 1156–1162.) The Economy
court further held that the anesthesiologist’s expert’s
testimony was sufficient to support award of damages for tax
neutralization. (Id. at pp. 1163–1164.) Notably, in
Economy, the hospital argued only that the evidence in
support of the trial court’s award of damages for tax
neutralization was speculative, not that an award for tax
neutralization damages was unauthorized. (Ibid.) Thus, the
appellate court did not need to address the issue before us to
resolve that matter.
relief as the court deems appropriate,” as the statutory
language implicated in those cases did. (Clemens, supra, at
p. 1115–1117 [Title VII]; Northern Star Hospitality, supra, at
pp. 903–904 [Title VII]; Eshelman, supra, at pp. 440–443
[Americans with Disabilities Act]; Sears, supra, at pp. 1456–
1457 [Title VII].) Likewise, Guillermo’s examples of gross-up
awards in the private sector for unlawful discharge under
the National Labor Relations Act (29 U.S.C. § 158(a)(1) &
(3)) do not inform the inquiry with respect to section
6.20.100.
13
The only case in California that addresses whether a
statute authorizes the award of a gross up to a reinstated
public employee is Barber v. State Personnel Bd. (2019) 35
Cal. App. 5th 500 (Barber). There, a divided court found that,
under Government Code section 19584, an employee who
was reinstated by the State Personnel Board was not
entitled to recover the amount equal to the increased tax
liability resulting from a lump sum payment. As Barber
addressed whether gross ups were authorized under
Government Code section 19584,6 and not section 6.20.100,
it, too, is not directly on point. Significantly, however, the
court held that increased tax liability was not encompassed
in the term “salary” as used in that statute, because tax
liability “is neither earned nor a payment.” (Id. at p. 513.)
Although the plain language of section 6.20.100 clearly
conveys that compensation for increased tax liability is not
6 Government Code 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 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.”
14
contemplated, Barber’s holding lends additional support to
the Department’s arguments.7
There are policy arguments from the perspective of a
successful claimant that would support requiring the
Department to pay a gross up award and there are policy
arguments from the perspective of the Department (which
has no control over tax rules adopted by the Federal and
State governments) that counsel in favor of a contrary
conclusion. The policy debate is not for us to resolve. The
Board of Supervisors has not authorized gross up payments
in Section 6.20.100, and if the Board of Supervisors thinks a
different rule would be more just, it is the Board of
Supervisors that must change it.
7 Notably, in Barber, the dissent interpreted
Government Code section 19584’s reference to “special salary
compensations” as “being a catchall provision that allows . . .
courts to fashion appropriate remedies to ensure the
employee is made whole.” (Barber, supra, 35 Cal.App.5th at
p. 527 (dis. opn. of Slough, J.).) The dissent found the word
“compensation” “broad enough to cover compensating the
employee for work and for injuries related to the wrongful
termination.” (Ibid.) Section 6.20.100 contains no similar
catch-all category.
15
DISPOSITION
The judgment is affirmed. Respondent Los Angeles
County Department of Health Services is awarded its costs
on appeal.
MOOR, J.
I concur:
BAKER, J.
16
Guillermo v. Department of Health Services – B296925
RUBIN, P. J. concurring and dissenting:
BACKGROUND
Under Los Angeles County Code section 6.20.100 (section
6.20.100) a wrongfully discharged employee “shall be entitled to
his base rate of salary . . . as if such unsustained . . . discharge
had not been invoked.” In my view, the plain purpose of this
ordinance and the remedy of back pay in general is to make the
employee 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.) The question raised by this
appeal is whether a statute designed to compensate an employee
for losses incurred due to her wrongful termination allows a
“gross-up” award in order to accomplish that end?
The availability of a “gross-up” award gained particular
significance after the federal tax code eliminated income
averaging. (See 1986 Tax Reform Act, P.L. 99-514, § 141 (1986).)1
Income averaging had allowed taxpayers to allocate income on an
average basis over several years, rather than in a single year.
(See Schmalbeck, Income Averaging After Twenty Years: A Failed
1 Current section 6.20.00 was enacted in 1968 as section 245
and amended several times before federal income averaging was
repealed in 1986. (See Ord. 6222, § 245 (1968, added by Ord.
9577, § 19); Ord. 6222, § 245 (1972, amended by Ord. 10273,
§ 24); Ord. No. 6222, § 245 (1979, amended by Ord. 12022, § 28);
Ord. No. 6222, § 6.20.100 (1982, amended by Ord. 84-0149P, § 3.)
1
Experiment in Horizontal Equity (1984) 1984 Duke L.J. 509, 510–
512.) The amendment to the Internal Revenue Code had the
effect of “ ‘leaving all those receiving a lump sum award to suffer
the consequences of additional tax liability.’ ” (Barber v. State
Personnel Bd. (2019) 35 Cal. App. 5th 500, 507 (Barber), review
denied Aug. 21, 2019; see Polsky & Befort, Employment
Discrimination Remedies and Tax Gross Ups (2004) 90 Iowa L.
Rev. 67, 77.) Employees who thereafter received a lump sum
back pay award were not able to allocate a portion of their award
to the respective tax years when the lost earnings would have
been earned. The result was that, under a progressive income
tax system, a lump sum award likely pushes an employee into a
higher tax bracket than she would have occupied if she had
received her pay regularly over several years. (See generally
Ireland, Tax Consequences of Lump Sum Awards in Wrongful
Termination Cases, 17 J. Legal Econ. 51, 51-52 (2010).)
Over the years, the term “gross-up” has slowly crept into our
legal lexicon but is found in only one published California
appellate opinion, Barber, supra, 35 Cal. App. 5th 500.2
2 Several federal circuits have held that a district court has
the discretion to award a gross-up in Title VII suits. (See Sears v.
Atchison, T. & S. F. R., Co. (10th Cir. 1984) 749 F.2d 1451;
Eshelman v. Agere Sys., Inc. (3d Cir. 2009) 554 F.3d 426; EEOC v.
Northern Star Hospitality, Inc. (7th Cir. 2015) 777 F.3d 898; and
Clemens v. CenturyLink Inc. (9th Cir. 2017) 874 F.3d 1113.) Title
VII provides in part that “the court may . . . order . . . any other
equitable relief as the court deems appropriate.” No similar
provision is found in section 6.20.100.
2
SECTION 6.20.100
Section 6.20.100 broadly provides general authority for an
award that compensates an employee for the salary lost due to
wrongful termination. Under section 6.20.100, a wrongfully
terminated employee is “entitled to his base rate of salary . . . as
if . . . such discharge had not been invoked.” A reading of section
6.20.100 that limits an award to only an employee’s “base rate of
salary” fails to take into account the “as if” clause, essentially
rendering the latter phrase superfluous. (See People v. Arias
(2008) 45 Cal. 4th 169, 180 [“Significance should be given, if
possible, to every word of an act. [Citation.] Conversely, a
construction that renders a word surplusage should be
avoided.”].)
By couching “base rate of salary” in terms of “as if . . . such
discharge had not been invoked,” the ordinance provides for
compensation to an employee for all salary truly lost, not just her
monthly gross pay. The gross-up achieves that purpose without
creating a windfall for those wrongfully terminated employees
like appellant whose court and administrative proceedings drag
on for years. Instead, those who receive a lump sum back pay
award covering a period of years receive the same net-of-tax
salary they would have received had there been no wrongful
discharge.
The majority reads the “as if” clause differently, but the
construction I give to the ordinance effectuates the make-whole
purpose of the statute. As our Supreme Court has reminded, the
purpose of the remedy of back pay is to make the employee whole
“for losses suffered on account of an unfair labor practice.”
(Ofsevit v. Trustees of Cal. State University & Colleges, supra,
21 Cal.3d at p. 777, fn. 14.) In cases like appellant’s, without a
3
gross-up an employee is not restored to the same financial
situation as she was before termination. Instead, many
wrongfully discharged employees will effectively receive
significantly less than their base rate of salary.3
BARBER v. STATE PERSONNEL BD.
The Department relies almost exclusively on Barber, supra,
35 Cal. App. 5th 500, the only case in California that addresses
whether a statute authorizes the award of a gross-up to a
reinstated public employee. Barber concluded that Government
Code section 19584 gave no such authorization. That statute
provides, in part: “Whenever the [State Personnel Bd.] 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.” The Barber majority
concluded that the statute limited “backpay relief recoverable to
lost salary and benefits,” and construed “special salary
compensation” as referring only to “income paid for work
performed.” (Barber, supra, at pp. 513–514.) The Barber court
found that, because increased tax liability was “neither earned
3 I am not persuaded that the phrase, “as if such . . .
discharge had not been invoked” is necessary to set forth “the
time period for which the employee is to be paid—i.e., the period
between the date of the unsustained discharge and the date of
the employee’s reinstatement.” (Maj. Opn., pp. 8-9.) Without the
“as if,” the ordinance would be read temporally in the same
manner.
4
nor a payment,” a reinstated employee could not be awarded a
gross-up. (Id. at p. 513.)
The Barber court also held that a determination of
increased tax liability was not “sufficiently predictable” under the
statute because “at the time of the wrongful termination, it is
unpredictable as to whether this will occur, [as] increased tax
liability turns on a multitude of factors, including the employee’s
unique financial situation at the time the lumpsum award is
received, the amount of the lumpsum 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.” (Barber, supra,
35 Cal.App.5th at p. 514.)
Not even the majority’s litany of unpredictables could deter
Justice Slough from dissenting. Her dissent interpreted
Government Code section 19584’s reference to “special salary
compensations” as “being a catchall provision that allows . . .
courts to fashion appropriate remedies to ensure the employee is
made whole.” (Barber, supra, 35 Cal.App.5th at p. 527 (Slough,
J., dis.).) In so holding, the dissent took “a different view of the
meaning of the word ‘compensation[],’ ” finding the word “broad
enough to cover compensating the employee for work and for
injuries related to the wrongful termination.” (Ibid.) Because the
term “compensation” itself is “broad and general,” the dissent
found it was designed “as a true catchall.” (Ibid.)
The Barber dissent reasoned that its interpretation
“effectuates the purpose of the statute. Section 19584’s plain aim
is making whole employees injured by their employer’s
misconduct or mistake. . . . As our Supreme Court has
recognized, about this provision as well as other backpay
5
provisions, ‘ “[t]he purpose of the remedy is clear. ‘A backpay
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.]” (Barber,
supra, 35 Cal.App.5th at p. 528 (Slough, J., dis.).)
There is no “catch-all” “other special salary compensations”
in section 6.20.100 but in my view the “as if such unsustained . . .
discharge had not been invoked” is both “broad and general”
(Barber, supra, 35 Cal.App.5th at p. 528 (Slough, J., dis.)) and
supports a gross-up award under section 6.20.100 to make
appellant “whole for losses suffered on account of an unfair labor
practice.” (Ibid.)
CONCLUSION
In this case, appellant was paid six years’ salary and
benefits in one lump sum. She presented evidence that she owed
approximately $227,000 more in taxes than she would have owed
had she worked during those years and was paid per pay period.
I would reverse the trial court’s decision and remand for a
determination of whether the evidence supports a gross-up
award.
Although I disagree with the majority on the merits of
appellant’s appeal, I concur in two respects. First, I agree with
the majority that this court has appellate jurisdiction. (Maj.
Opn., pp. 5-6.) I also agree that there “are policy arguments from
the perspective of a successful claimant that would support
requiring the Department to pay a gross up award.” The
majority also cites “policy arguments from the perspective of the
Department (which has no control over tax rules adopted by the
Federal and State governments) that counsel in favor of a
contrary conclusion.” Neither the Barber opinion nor this one
6
was unanimous, as each garnered a dissent. It does seem time
for government entities, such as the County of Los Angeles, to
address head on whether gross-up awards are authorized in
wrongful termination litigation.
RUBIN, P. J.
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