Like many municipalities across the country, the City of Los Angeles declared an emergency in March 2020 in response to COVID-19. The following August, the City passed an ordinance that required all City employees to be vaccinated against COVID-19, request an exemption, or be subject to “appropriate and immediate corrective action,” up to termination. Even those with an exemption would be subject to weekly testing, at cost to the employee. The City negotiated the consequences of non-compliance with the Los Angeles Police Protective League, ultimately imposing its last, best and final offer: “an employee terminated for noncompliance with the COVID-19 vaccine mandate could seek ‘reemployment’ with the City, subject to the COVID-19 vaccination requirements. Alternatively, an employee could resign or retire, then after the vaccination order is lifted, they would be eligible for rehire.”
In October 2021, the City signaled that the time for negotiation was over, releasing a memo to all City departments to “implement the last, best and final offer and issue a notice to every unvaccinated employee, wherein the employee was to acknowledge the deadline for becoming vaccinated and the testing requirements.” Employees were required to sign the notice within 24 to 48 hours. Employees who refused to sign the notice were to “be placed off duty without pay,” and sworn employees were to “be subject to applicable Board of Rights proceedings.”
Jeannine Bedard, a Los Angeles Police Department officer since 1998, did not submit documentation proving vaccination and did not apply for an exemption. By November, her supervisor had sent her a “Notice of Mandatory COVID-19 Vaccination Policy Requirements,” requesting that Bedard sign a statement certifying that she would be fully vaccinated by December 18, 2021, and that in the interim, she would undergo biweekly testing, at her own cost. Bedard refused and notified her supervisor that she would not be getting vaccinated. She was temporarily relieved from duty effective November 17, 2021, pending a hearing before the Board of Rights.
The Board unanimously found that Bedard failed to comply with the ordinance, and that she was lawfully terminated; it also found that Bedard had not been given sufficient time to respond to the charges and awarded her back pay from the date of her discipline to the time the discipline was validated. However, the Chief of Police felt that the Board had no jurisdiction to award back pay and refused to comply with the award. On appeal to a trial court, Bedard prevailed on the back pay award, but remained terminated. Bedard appealed once more, arguing that her termination should be reversed, because it was based entirely on failing to sign the notice that she also argued was void. She also argued that the proper remedy for the failure to give her sufficient time to respond to the charges was reinstatement, not just back pay.
The Second District Court of Appeals disagreed on both counts, “First, we conclude that Bedard forfeited her argument that she was not terminated for violating the ordinance and that she instead was solely terminated for her failure to sign the notice because she did not make this argument in the Board proceedings or before the trial court. The trial court subsequently found Bedard’s failure to vaccinate defied the ordinance and thus was cause for termination. “At this juncture too, Bedard’s counsel failed to argue that her noncompliance with the ordinance was not a basis for her termination. Substantial evidence supports the trial court’s finding that Bedard was not terminated just for failing to sign the notice but also because she refused to comply with the vaccine mandate set forth in the ordinance. We need not decide whether the condition requiring her to pay for the interim testing violated Section 2802, or that signing the notice was not a valid condition of employment, because (1) Bedard never intended to become vaccinated and thus no interim testing was necessary; and (2) there is substantial evidence that Bedard violated the ordinance’s vaccination mandate.”
The Court further concluded that it was not abuse of discretion for the Board to terminate her.
With respect to the reinstatement argument, the Court found that the prevailing case law only allowed for reinstatement as a remedy where there was a reasonable probability that Bedard would have avoided being terminated with a full 30 days to respond to the charges against her.
“In light of Bedard’s testimony indicating that she would not vaccinate and did not fall under a religious or medical exemption, she offers no credible explanation of how termination could have been avoided. Moreover, she fails to cite any law to support her contention that reinstatement is an available remedy for the due process violation.”
Bedard v. City of Los Angeles, 2024 WL 4634930 (Cal. Ct. App. 2024).