Wednesday, April 20, 2005
Uncompensated Police Volunteer Not ‘Employee’ Under Anti-Discrimination Act, Panel Rules
By a MetNews Staff Writer
An uncompensated volunteer community service officer for a local police agency is not an employee under the Fair Employment and Housing Act, the First District Court of Appeal ruled yesterday.
“[T[he FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices,” Justice Ignacio Ruvolo explained for Div. Two. Unpaid volunteers do not fall within any of those categories, nor is there case law or public policy to support their inclusion, the justice said.
The court upheld Marin Superior Court Judge Lynn O’Malley Taylor’s ruling that Peter T. Mendoza, who claims he lost his CSO position with the Town of Ross because he is disabled, cannot sue the town for discrimination under FEHA.
The justices did, however, say Mendoza could amend his complaint to allege liability under Government Code Sec. 11135, which prohibits discrimination in state-supported programs and activities.
Mendoza, who was born with cerebral palsy and is a quadriplegic, alleged that he was an “appointed” member of the city workforce, citing the language on his police identification card. As a CSO, he said in his complaint, he wore a uniform, carried a badge, and kept a regular work schedule assisting in traffic duties, crime prevention and neighborhood watch programs at, and around, the local grammar school.
He held the position for 21/2 years, then sued after it was terminated.
Taylor, in sustaining the town’s demurrer, cited federal case law holding that volunteers are not employees for purposes of Title VII of the Civil Rights Act of 1954.
Ruvolo, writing for the Court of Appeal, said the trial judge was correct, rejecting Mendoza’s claim that the town had conferred employee status on him.
“Regardless of what verbiage may appear on Mendoza’s identification card, Mendoza ignores the controlling local ordinance, which vests the town council with the -exclusive authority to make appointments to employment,” the justice wrote, noting that Mendoza did not allege that he was appointed by the council.
“The Town persuasively argues that since the Town’s appointment process was not initiated, Mendoza was not appointed, and does not fall under the FEHA employee category as an appointee,” the jurist said. Nor did Mendoza cite any statute, rule, or ordinance under which an implied contract of employment was created, Ruvolo said.
The justice cited Shephard v. Loyola Marymount Univ, (2002) 102 Cal.App.4th 837, in which the court rejected a basketball player’s contention that she was an employee of the university and could sue for racial discrimination based on the revocation of her scholarship.
The court cited the language of FEHA and its implementing regulations, as well as NCAA bylaws prohibiting athletes from being paid and workers’ compensation law excluding student athlete’s from coverage.
Mendoza, Ruvolo noted, was excluded from workers’ compensation coverage as a public agency volunteer.
In an unpublished portion of the opinion, Ruvolo questioned whether Mendoza can state a claim under Sec. 11135, since the town denies that its CSO program was state-funded, because Mendoza does not claim to have exhausted administrative remedies, and because it is unclear whether the statute is enforceable by private action. But those issues should be resolved in the trial court in the first instance, the justice said.
The case is Mendoza v. Town of Ross, 05 S.O.S. 1925.
Copyright 2005, Metropolitan News Company