Employer Not Allowed To Unilaterally Extend Probationary Period

Employer Not Allowed To Unilaterally Extend Probationary Period

Written on 09/01/2020
Will Aitchison

After graduating from the Los Angeles County police academy, Christopher Trejo was hired by the County as a Deputy Sheriff Generalist on February 23, 2014. Trejo’s 12-month probationary period started that day. About four months later, Trejo was involved in a use-of-force incident which triggered an investigation.

The incident involved a handcuffed inmate who was kicking and pulling away from officers. This commotion attracted the attention of several officers, including Trejo. But only Trejo physically engaged with the inmate.

Trejo was relieved of duty on June 20, 2014, pending an investigation into violation of use-of-force policies. He was issued a civilian identification card, relieved of his gun and badge, and no longer possessed police powers. Trejo was then reassigned to the records unit pending the investigation.

On August 4, 2014, the Sheriff’s Department provided Trejo with a letter purporting to extend his statutory 12-month probation period. That letter stated: “In accordance with Civil Service Rule 12.02, your probationary period as a Deputy Sheriff, Item Number 2708, has been extended. This extension is due to your relieved-of-duty status. Upon your return to your assigned duties, your unit will notify Personnel Administration Bureau and your probationary period will be recalculated.”

Nearly 18 months later, the Department terminated Trejo, taking the position that he remained a probationary employee. Because the Department did not consider Trejo a permanent employee, he was not notified of any rights to a due process hearing.

The California Court of Appeals ruled Trejo’s termination unlawful. The Court noted that “the County argues, among other concerns, that if the Department were unable to extend probationary periods, it would likely change its policy and immediately dismiss probationary deputies who become subject to a criminal or administrative investigation. The alternative to immediate dismissal would be unacceptable, namely, allowing probationary deputies under investigation for serious charges to achieve full civil service status.

“These are serious concerns, and we are especially sensitive to the Department’s needs to investigate probationary deputies who may have engaged in unlawful use of force before they are made permanent County employees. Nevertheless, we must construe the Rules as they are written if their plain meaning is clear and discoverable.

“Trejo was placed into an administrative job about four months after his employment began. Were the next eight months he spent in that administrative job ‘time away’ within the meaning of Civil Service Rule 12.02(B)? Was he ‘absent from duty’ for those eight months? The Rules define neither. But, Rule 2.01 does indicate that during those eight months Trejo remained in ‘actual service’ with the County because he was ‘engaged in the performance of the duties of a position or positions including absences with pay.’ Thus, the Department must credit those eight months toward the completion of Trejo’s probation period.

“The time Trejo spent in his administrative job was not ‘time away’ because that job was still ‘a position.’ Nor was he ‘absent from duty’ for the same reason. We also know his administrative job counted as ‘a position’ because it satisfies the definition provided by Rule 2.41, namely, ‘any office or employment in the classified service of the county requiring the full or part-time employment of one person.’

“We acknowledge the Department has important reasons for extending the probation of deputies who come under investigation. But, the County has not offered authority for the proposition that the importance of the Department’s probation extension policies means we are free to interpret the Rules any differently from how we are obliged to construe any other statutes, i.e., by discerning their plain meaning. A County employee may not have his probation extended if he is placed in another ‘position or positions.’”

Trejo v. County of Los Angeles, 2020 WL 3055751 (Cal. App. 2020).

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