Not meeting an all-employee vaccination job qualification is not POBRA punitive action: Cruz v. City of Hermosa Beach
Does POBRA punitive action include firing a peace officer who did not meet a vaccination requirement? In Cruz v. City of Hermosa Beach, the Second District, Division Five, held in a published opinion that it does not. A termination for failing a vaccination requirement imposed on all employees as an employment qualification is outside the Public Safety Officers Procedural Bill of Rights Act, so the officer had no POBRA right to an administrative appeal.
What happened in Cruz v. City of Hermosa Beach
In September 2021, the Hermosa Beach City Council adopted a policy requiring all City employees to be vaccinated against COVID-19 by November 12, 2021, as a condition of employment. The policy allowed requests for religious or medical exemptions, to be followed by an interactive process, and warned that noncompliant employees would be subject to separation.
Jonathan Cruz, a City police officer since 2009, requested a religious exemption on October 1, 2021. After an interactive-process meeting, the City denied the request on January 5, 2022, finding, among other things, that it was not based on a sincerely held religious belief, and alternatively that accommodating him would be an "undue hardship." He was told to provide proof of vaccination by February 19, 2022. He did not.
On February 22, 2022, the City issued a Notice of Forfeiture of Employment and placed him on administrative leave with pay. The notice said the separation was not disciplinary, but offered a conference before a final decision. After that conference, the City terminated his employment on March 9, 2022. His attorney then requested a post-termination administrative appeal, asserting POBRA rights. The City refused, treating the separation as a forfeiture of employment for non-disciplinary reasons.
Cruz sued the City and its police department under POBRA, for declaratory relief, for retaliation under Labor Code section 1102.5 and the Fair Employment and Housing Act, and for mandamus. The Los Angeles County Superior Court (Judge Douglas W. Stern) granted summary judgment for the defendants.
Is termination under a vaccine mandate "punitive action" under POBRA?
Government Code section 3304, subdivision (b), bars punitive action against a public safety officer without an opportunity for administrative appeal. Section 3303, subdivision (b), defines punitive action as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." In White v. County of Sacramento (1982) 31 Cal.3d 676, the Supreme Court held that dismissals, demotions, suspensions, reductions in salary and written reprimands "are by nature penalties, no matter for what reason imposed." Cruz argued his termination was a "per se dismissal."
Reviewing the statutory question de novo, the Court of Appeal disagreed. Drawing on White, it held that "not all employment terminations are dismissals for purposes of POBRA." Because the statute does not specify what constitutes punitive action, the court turned to the Legislative Counsel's Digest and concluded the Legislature intended POBRA to apply to public safety officers "under investigation" and facing "discipline." The cases cited by Cruz and others the court found, it said, support the conclusion that POBRA provides procedural safeguards for officers facing punitive actions because of an investigation into their ability to perform their duties.
The second step was qualifications. The court quoted the Supreme Court's statement that "[POBRA] is not intended to regulate or restrict the appointment of police officers by local law enforcement agencies." And on this record:
The record demonstrates the City did not terminate plaintiff because he engaged in any workplace misconduct or performed poorly; it terminated him because he did not meet the Policy’s minimum job qualifications, one of which was to provide proof of vaccination or demonstrate that he qualified for a religious or medical exemption.
Because the termination was not punitive action, the POBRA claim failed, and the declaratory relief claim, which was derivative of it, failed with it.
What the court did not decide
Footnote 5 sets the limit of the holding. The court noted that the complaint did not allege that "the City acted unlawfully or with a discriminatory motive when it denied his religious exemption, and we express no opinion on those matters." The published holding concerns POBRA's procedural protections, not whether the exemption denial was lawful.
The retaliation and mandamus rulings appear in parts III.C, III.D and III.E, which were not certified for publication. In those parts the court held that the City established the same-decision defense under Labor Code section 1102.6 by clear and convincing evidence, that denial of an administrative appeal to which Cruz was not entitled was not an adverse employment action, and that the mandamus claim failed as derivative of the others. The summary judgment was affirmed.
What Cruz means for officers and public agencies
The published holding draws a line between discipline and qualifications. A separation for failing a vaccination requirement imposed on all employees as an employment qualification does not trigger POBRA's administrative appeal. For officers, the case shows that POBRA's procedural protections are tied to investigation and discipline, and that a challenge to the underlying decision, here the denial of a religious exemption, depends on the claims actually pleaded. Footnote 5 shows the court took no position on a theory the complaint did not allege.
Because the case came up on summary judgment, the appellate court reviewed the record independently, but only the record and claims presented below. For how summary judgment rulings play out on appeal, see our note on summary judgment rulings, and for the firm's appellate work, see our appellate practice page.
Key takeaways
- In a published holding, Cruz v. City of Hermosa Beach held that a termination for failing a vaccination requirement imposed on all employees as an employment qualification is not POBRA punitive action.
- The court reasoned that not all employment terminations are dismissals for purposes of POBRA, which addresses officers under investigation and facing discipline.
- POBRA does not regulate peace officers' qualifications for employment, so the officer had no POBRA right to an administrative appeal.
- The court expressed no opinion on whether the religious exemption denial was lawful, because the complaint did not allege that it was unlawful or discriminatory.
Why this case shows the value of appellate counsel
An officer or agency facing a ruling like this one should look first at how the case was framed. Here the claims were POBRA procedure, declaratory relief, retaliation and mandamus, and the court noted that the complaint did not challenge the exemption denial itself as unlawful or discriminatory, so it expressed no view on it. On appeal from summary judgment, review is independent, but it is limited to the claims pleaded and the evidence presented below. An appellate lawyer can assess which issues were preserved, whether the published holding in Cruz controls a given set of facts, and how the record supports review, ideally before the deadline to appeal runs.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864