Key Points

  • A police officer's termination for failing a COVID-19 vaccination requirement imposed on all city employees as a condition of employment is not a 'punitive action' under POBRA, Government Code sections 3303(b) and 3304, so no POBRA administrative appeal was owed.
  • Applying White v. County of Sacramento, the court held that not every employment termination is a 'dismissal' for POBRA purposes, and that POBRA governs investigations and discipline, not qualifications for employment.
  • The court expressly declined to decide whether the city's denial of the officer's religious exemption was unlawful or discriminatory.
  • In unpublished parts, the court held the city proved the Labor Code section 1102.6 same-decision defense by clear and convincing evidence, and that denial of an appeal the officer was not entitled to was not an adverse action under FEHA.
  • The city receives appellate costs on the non-FEHA claims only, because the trial court made no finding that the FEHA claim was frivolous, unreasonable, or groundless.

A California appeals court has ruled that a Hermosa Beach police officer fired for failing to comply with the city's COVID-19 vaccination requirement had no right to an administrative appeal under the state's police bill of rights. The court held that the statute protects officers facing investigation or discipline, not officers who fail a job qualification imposed on every city employee.

The Second Appellate District, Division Five, affirmed summary judgment for the City of Hermosa Beach and its police department in an opinion filed Oct. 15 by Kim (D.), J., with Baker, Acting P. J., and Moor, J., concurring. The ruling disposes of all five claims brought by Jonathan Cruz, an officer the city had employed since 2009.

The court certified its opinion for publication except for three parts. The published portion includes its analysis of the Public Safety Officers Procedural Bill of Rights Act, known as POBRA, which gives peace officers procedural rights when their employers investigate or discipline them. In that portion, the court concluded that POBRA does not reach a vaccination mandate that a public employer applies to all employees as a qualification for employment.

In September 2021, the Hermosa Beach City Council required all city employees to be vaccinated against COVID-19 by Nov. 12, 2021, as a condition of employment. The policy allowed religious and medical exemptions. It warned that employees who did not comply "will be subject to separation from employment with the City for failure to comply with this [P]olicy."

Cruz requested a religious exemption on Oct. 1, 2021. The city denied the request on Jan. 5, 2022, finding that it was not based on a sincerely held religious belief and, in the alternative, that accommodating him would cause the city "undue hardship." Cruz did not provide proof of vaccination by the Feb. 19 deadline. On Feb. 22, the city issued a Notice of Forfeiture of Employment that described the separation as not disciplinary, and it terminated him on March 9 after a conference.

Cruz's lawyer then asked for a post-termination administrative appeal, arguing that the firing was a "punitive action" under POBRA. The statute bars punitive action against a public safety officer without an opportunity for administrative appeal, and it defines the term as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." The city refused on April 14, 2022. Los Angeles County Superior Court Judge Douglas W. Stern later granted the city summary judgment.

On appeal, Cruz argued that his termination was a "per se dismissal." He relied on White v. County of Sacramento, a 1982 California Supreme Court decision holding that dismissals, demotions and similar actions "are by nature penalties, no matter for what reason imposed." The panel disagreed. The court wrote that, as White itself explained, "not all employment terminations are dismissals for purposes of POBRA."

Because the statute does not specify what counts as a punitive action, the panel turned to the Legislative Counsel's Digest for Assembly Bill No. 301. The digest, the court wrote, shows that the Legislature "intended for POBRA to apply to public safety officers 'under investigation' and facing 'discipline.'" The court added that the cases Cruz cited involved officers facing punitive action after investigations into their ability to perform their duties.

The panel also relied on Burden v. Snowden, in which the Supreme Court stated that POBRA "is not intended to regulate or restrict the appointment of police officers by local law enforcement agencies." The panel wrote that the Hermosa Beach policy "specifically affected the qualifications for employment, which are not regulated by POBRA." The record, the court held, showed that "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."

The opinion left one question open. In a footnote, the court wrote that Cruz's "complaint does 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." Another footnote states that a federal court in the Central District of California dismissed a separate discrimination suit by Cruz in June 2025.

In the unpublished sections, the panel rejected Cruz's claim under Labor Code section 1102.5, the state whistleblower statute. The claim rested chiefly on a complaint he filed with the federal Equal Employment Opportunity Commission and the state's former Department of Fair Employment and Housing. The city learned of that complaint on or about Feb. 25, 2022, after it had denied his exemption and issued the forfeiture notice.

On that record, the court held, "defendants met their burden to demonstrate by clear and convincing evidence that the same-decision defense applied." That defense, codified in Labor Code section 1102.6, defeats a whistleblower claim when the employer proves it would have taken the same action for legitimate, independent reasons. The panel also held that the April 2022 refusal of an appeal, which came after his employment ended, could not support that claim.

The court rejected Cruz's retaliation claim under the Fair Employment and Housing Act on the strength of its POBRA ruling. "Because the denial of an administrative appeal to which plaintiff was not entitled could not have materially affected the terms and conditions of his employment, it was not an 'adverse employment action' under FEHA," the court wrote. Cruz's claims for declaratory relief and a writ of mandate, which sought reinstatement, failed with the claims on which they depended.

Corey W. Glave represented Cruz. The city and police department were represented by Jennifer M. Misetich of Buchalter.

The judgment for the city stands. The panel awarded the city its costs on appeal for the claims other than the FEHA claim. It denied costs on the FEHA claim because the trial court never found that claim frivolous, unreasonable or groundless, a finding the statute requires before a prevailing defendant may recover fees and costs.