Gary M. Messing, No. 075363
CARROLL, BURDICK & McDONOUGH llp
Attorneys at Law
2100 21st Street
Attorneys for Grievants Glen J. Grossman
and Jorge V. Vargas
HEARING BEFORE ARBITRATOR
CALIFORNIA ATTORNEYS, ADMINISTRATIVE LAW JUDGES, AND HEARING OFFICERS IN
STATE EMPLOYMENT (GROSSMAN)
DPA No. 02-02-0018
Date: October 9, 2003
This matter is a breach of contract action. In this action, California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment (CASE), on behalf of Glen J. Grossman (“Grossman”) and Jorge Vargas (“Vargas”) (collectively “Grievants”), seek to recover damages related to Grossman and Vargas working out of class as staff attorneys for the State Compensation Insurance Fund (“SCIF”). The Grievants’ employment with SCIF is governed by a Memorandum of Understanding (“MOU”). The terms of the MOU define the type of work attorneys perform at each classification level, and when an attorney is working out of class. During the relevant period both Grossman and Vargas performed duties and assignments consistent with an attorney working as a Specialist III. The evidence clearly shows that the size of the Grievants’ case loads, the complexity of their cases, and the similarity of their responsibilities were more consistent with that of other Specialist IIIs in the Salinas office, than the State Personnel Board (“SPB”) job description for a Range D attorney. Moreover, SCIFs own job descriptions show that SCIF expected Range D attorneys to perform the same work as required of a Specialist III under the SPB description, and is therefore an admission that Range D attorneys worked out of class. As a result, the evidence presented demonstrated that the Grievants were working out of class, and are entitled to back pay.
II. SUMMARY OF ARGUMENT
The State of California has several different levels of classifications for State attorneys. Staff Counsel ranges from A to D level and above the D level attorneys there are Specialist III’s. The State Personnel Board has established job descriptions for each of these classifications. Grievants, Glen Grossman and Jorge Vargas were employed by the SCIF as Staff Counsel Range D attorneys during the grievance period. Mr. Vargas continues to work as a Range D attorney while Mr. Grossman was later promoted to Specialist III.
Throughout the grievance period, Mr. Grossman and Mr. Vargas had been performing duties that require a level of expertise and responsibility expected of Specialist III’s for a majority of their time over the course of at least two consecutive weeks consistently within the grievance period. Grievants handled the most complex cases in the office, and the type of cases they handled were indistinguishable from those handled by other Specialist IIIs in the Salinas office. After Grossman was promoted to a Specialist III, he continued to handle the same type of cases he handled as a Range D attorney. Vargas was responsible for half of the Department of Corrections cases in the Salinas office. Additionally, both Grossman and Vargas handled serious and willful claims, discrimination and retaliation – or 132a – claims, and other complex and sensitive cases. More telling, other attorneys with whom the Grievants worked, both in the SCIF office, and opposing counsel, could not discern any significant difference in the type of cases handled by Grievants and other Specialist IIIs in the Salinas office.
Both Grossman and Vargas acted in lead capacities. Vargas supervised Luma Serrano on some of her cases on an almost day-to-day basis. See Tran at 35:16-23. Vargas also supervised Karen Mesa. See Tran at 40:9-13. Similarly, Grossman often acted in a lead capacity, including supervising Mesa, Mendoza and Serrano on the issue of reimbursement rates for surgery centers.
Grossman and Vargas were also responsible for two of the three largest caseloads in the office. Not surprisingly, the third attorney carrying a large caseload was a Specialist III – Steve Pickering. For example, in the summer of 2002, the average number of cases per SCIF attorney was 257 in northern California offices. Consistent with the area average, the Salinas office also averaged 257 cases per attorney. During that period Pickering had 334 cases, Vargas had 334 cases, and Grossman had 327 cases. By contrast, Mesa had 246 cases, and Serrano had 205 cases during that period.
The Grievants also consistently made appearances at a level consistent with Pickering, a Specialist III. In 2000, Grossman attended 123 Mandatory Settlement Conferences (“MSCs”), 47 depositions, and 59 trials, for a total of 229 appearances. Vargas attended 115 MSCs, 51 depositions, and 54 trials, for a total of 220 total appearances. Pickering attended 106 MSCs, 42 depositions, and 51 trials for a total of 199 appearances.
The statistics for 2001 and the first half of 2002 are consistent: In 2000, Grossman attended 106 MSCs, 40 depositions, and 46 trials, for a total of 192 appearances. Vargas attended 106 MSCs, 32 depositions, and 61 trials, for a total of 199 total appearances. Pickering attended 122 MSCs, 26 depositions, and 45 trials for a total of 193 appearances. Through the end of June 2002, Grossman attended 82 MSCs, 27 depositions, and 24 trials, for a total of 133 appearances. Vargas attended 72 MSCs, 19 depositions, and 49 trials, for a total of 140 total appearances. Pickering attended 85 MSCs, 20 depositions, and 33 trials for a total of 138 appearances. Throughout that period, Grossman and Vargas were Range D attorneys. Pickering was promoted to Specialist III in February of 2002. Yet, the number of appearances for each of the attorneys is fairly consistent throughout that period.
Under the SPB job descriptions Mr. Grossman and Mr. Vargas have been performing the duties of a Specialist III, a higher classification, without receiving additional compensation. The size of their caseload, the complexity of their cases, and comparisons with other Specialist IIIs all lead to the inevitable conclusion that Grievants were working out of class.
On September 9, 2002 a grievance was filed on behalf of Glen Grossman and Jorge Vargas with the Assistant Chief Counsel of the State Compensation Insurance Fund (“SCIF”). Mr. Grossman and Mr. Vargas allege that for over one year prior to filing their grievance they have been working out of class in their positions as Staff Counsel Range D attorneys by performing the work of Specialist IIIs without additional compensation. After filing their grievance at the first level, the grievance was filed at each subsequent level up to the fourth level. Since the fourth request for a remedy was denied it was necessary to request this arbitration.
Mr. Grossman and Mr. Vargas seek retroactive pay from September 9, 2001 to the present for Mr. Vargas and up to the date Mr. Grossman was promoted to Specialist III in accordance with Section 15.3(D)(4) of the Memorandum of Understanding.
A. Pursuant to the Terms of the MOU, the SPB Definition is the Governing Job Description
Section 15.3.B.1 of the MOU between the State and CASE provides in relevant part, “Duties appropriately assigned are based on the definition and typical tasks enumerated in the California State Personnel Board specification.” Thus, the appropriate definition for the classifications at issue is the State Personnel Board definitions.
The SPB defines the Specialist III specification as follows, “Under general direction, to effectively perform the most sensitive and complex legal work of the department in which employed, consistently with favorable results.” Ex. U-5. The SPB specification elaborates on the distinguishing features between a Specialist and lower level Staff Counsel as follows:
This [Specialist] class is distinguished from the lower level Staff Counsel class by the level of difficulty of assignments given to incumbents and the expertise which the incumbent brings to the assignments. Staff Counsels III (Specialist) work with broad discretion and independence with a minimum of supervision and are expected to be expert in the most complex area of the law within a departmental legal program.
A Staff Counsel III (Specialist) does not supervise lower level attorney staff, but may act in a lead capacity.
Id. In contrast, the SPB specification provides, “Incumbents assigned to Range D independently perform legal work of average difficulty.” Ex. U-2. The key difference between a Specialist III and a Range D attorney is the performance of complex legal work as opposed to cases of average difficulty. As the evidence clearly demonstrated, Grossman and Vargas each handled the most complex cases handled by SCIF attorneys, and otherwise performed work consistent with the SPB definition for a Specialist III.
An attorney is working out of class when “…a majority (i.e., more than 50 percent [50%]) of his/her time over the course of at least 2 consecutive work weeks performing duties and responsibilities associated with a higher level existing classification that do not overlap with the classification which said employee holds an appointment.” MOU § 15.3 (B).
B. The SCIF Definitions Are An Admission that Grievants Were Expected to Work Out of Class.
Although the SCIF job definitions are not controlling pursuant to the terms of the MOU, the SCIF definitions are an admission that range D attorneys are performing work at the SPB level III definition. SCIF has devised its own internal job descriptions for Staff Counsel Range D and Specialist III attorneys. These descriptions do not comport with the SPB’s job descriptions of these classifications in a substantial way. The SCIF job descriptions are not only invalid, they are also an admission that Staff Counsel Range D employees such as Mr. Grossman and Mr. Vargas are expected and are in fact working out of class as Specialists. See Evid Code § 1220; Sill Properties v. CMAG, 219 Cal.App.2d 42, 55 (1963) (minutes of a board meeting determining fair value an admission as to the value of certain assets).
SCIF defines the function of Staff Counsel Range C & D, in relevant part, as follows:
Attorneys in this position will demonstrate the ability to perform the more complex requirements of litigation under the general direction of senior attorneys. Incumbents in this class shall exhibit the ability to effectively manage the most complex type of case while maintaining a high volume case load.
Ex. U-2 (emphasis added). In comparison, the SPB job description indicates that a Specialist III will “perform the most sensitive and complex legal work of the department.” Ex. U-5 (emphasis added). Both definitions call for the performance of the most complex work in the department. Thus, according to SCIF’s own definition, a Range C/D attorney performs work equivalent to a Specialist III.
Moreover, the SCIF definitions substantially overlap. The SPB job descriptions make a distinction between Range D attorneys and Specialists in that Range D attorneys perform work of average difficulty and do not act in a supervisory or lead capacity. Under the SPB’s description the Range D attorney does not perform the complex cases handled by Specialist III’s.
SCIF definition for Range C/D specifies the attorney will handle “the most complex type of case while maintaining a high volume case load.” Similarly, SCIF defines the function of Senior Staff Counsel – Specialist, in relevant part, as follows:
This incumbent will exercise lead responsibility in assisting an attorney-in-charge in training new attorneys and in handling the most complex and most difficult legal problems and issues in the department, and serves under the authority of the Senior Staff Counsel – Supervisor or in his/her absence, the Assistant Chief Counsel.
Ex. U-3. The only significant difference between the two definitions is the addition of the term “most difficult legal problems and issues in the department” and the lack of the phrase “under the general direction of senior attorneys” in the Specialist definition. Both definitions require the attorney to handle “the most complex” cases.
The SCIF descriptions greatly depart from this distinction as the SCIF job descriptions for Range D attorneys and Specialists read almost exactly the same. SCIF requires Range D attorneys to handle more complex cases and act as lead attorneys when necessary. As a result, SCIF expects Range D attorneys to perform the same type of work as a Specialist. SCIF’s own job descriptions are an admission that Range D attorneys work out of class by performing Specialist work. As a result, SCIF’s own job descriptions are evidence that Range D attorneys such as Mr. Grossman and Mr. Vargas perform the work of a Specialist III (as defined by SPB) and a Specialist (as defined by SCIF) on a regular basis without receiving the pay of the higher grade in violation of the Memorandum of Understanding.
C. The Testimony of Experienced Attorneys In the Field Defines What Constitutes a Sensitive or Complex Case
Nothing in the SCIF job descriptions, or the SPB job descriptions provides any definition or guidance concerning the meaning of the term “most sensitive or complex” cases. However, Grievants presented evidence, in the form of testimony from the leading applicants’ attorney in the area, on what constitutes a sensitive or complex case. Because the relevant job descriptions do not define what a complex or sensitive case is, the arbitrator must look to what experienced attorneys in the area view as a complex or sensitive case. See Civ. Code § 1655; Ermolieff v. R.K.O. Pictures, 19 Cal.2d 543, 550 (1942) (where contract does not define term, interpretation aided by usage in the trade).
1. Rucka Identified What Constitutes a Complex or Sensitive Case
Michael Rucka (“Rucka”), the principal and partner of the biggest applicant-side workers compensation law firm in the Salinas area, testified about his experience working on cases with Grossman and Vargas. (16:24-17:4); see also 22:23-23:7 (testifying that his office handled a much higher percentage of complex cases than most others in the area). Rucka testified that he had worked on cases opposite Pickering and Cannon, who were Specialist IIIs, on numerous occasions. (17:5-18:1). Rucka testified on what factors or claims make a workers compensation case more complex than average.
Rucka stated that cases alleging serious and willful misconduct are some of the more complicated types of cases in the workers compensation arena. In addition to the typical issues involved with a workers compensation claim, serious and willful claims involve detailed investigations, and complex discovery more common to a product liability claim, or other complex litigation. See Tran. at 32:17-33:5.
In addition, Rucka testified that claims alleging discrimination or retaliation - 132a cases – are more complex than average. Such cases are complex, and difficult factually because they require a separate analysis of whether an action was “retaliatory and against public policy as opposed to what is a good faith personnel action.” Tran. at 33:16-18. In addition the cases often involve psychiatric issues, adding to the factual complexity. Tran. at 33:11-14.
Serious and willful claims, and 132a claims are often filed as such, and SCIF would know if the case is complex from the beginning. Tran. at 33:19-34:1. However, sometimes 132a claims are added after the initial filing. Nevertheless, Rucka never saw SCIF change or reassign the attorney handling such a file once the case changed into a more complex type. Tran. at 34:2-17. Moreover, Rucka testified that cases that start off simple, often become complex as the facts are developed, but such cases were not transferred to other, more senior attorneys. Tran. at 41:20-23
Rucka also testified that because of the nature of the agencies, as well as the monies involved, cases involving the Department of Corrections, Department of Forestry, and Caltrans were all complex matters. Tran. at 34:18-20
Rucka also stated that cases involving a permanent disability are more complex than an average case. Workers Compensation awards are based on a complex ratings formula, which influences that way cases are pursued by both sides. “What you are attempting to do through medical evidence is to, for lack of a better way of describing it, groom the case to allow for the most amount or the least amount of disability being awarded to the particular individual, using the parameters of the schedule.” 43:18-24.
The permanent disability cases are made even more complex and difficult when there is a claim of 100% disability. Because of the tremendous difference financially, between a 99% disability, and a 100% disability, such cases involve intense battles over that difference. As a result, such cases take on a much greater level of complexity than the average case.
2. Other Attorneys Concurred with Rucka’s Definition of Complex or Sensitive Cases
Berry Cannon (“Cannon”), until recently a Specialist III in the Salinas office, concurred with Rucka’s descriptions of what constituted a complex or sensitive case. In his opinion, the most complex and sensitive cases included serious and willful cases, 132a discrimination cases, cases with numerous defendants, Department of Corrections cases, and frequently one hundred percent disability cases and in pro per cases. Tran II at 62:2-64:4.
Even Miguel Estrada, SCIF’s chief witness agreed that many of the foregoing categories where more complex, sensitive or difficult than the average case. For example, he agreed that 100% disability cases had substantially higher stakes, and that AOE and COE cases were generally more complex. Tran III at 109:3-17. He also conceded that the burden of proof in apportionment cases make them more complex. Id. at 109:18-110:1. Estrada admitted that cases involving public figures were more sensitive, and that Corrections cases were more difficult because of the personality of the agency and individuals involved in such cases. Id. at 110:2-11:1. Although, Mr. Estrada tried to hedge his testimony, he essentially conceded that most of the categories identified by other witnesses were more complex, sensitive or difficult than average. See, e.g., Tran III at 111:2-20 (serious & willful); 114:4-116:4 (multiple defendant cases); 122:2-4 (coverage cases).
D. Other Attorneys Could Not Differentiate Between the Complexity of Work Handled by the Grievants and Other Specialist IIIs in the Office.
1. Michael Rucka’s Testimony Supports the Conclusion that Grievants Were Working as Specialist IIIs
Mr. Rucka also worked opposite the Grievants, Grossman and Vargas, on many cases, including many of the more complex types of claims. Id. Mr. Rucka could not identify any difference between the cases handled by Pickering, Cannon, Grossman and Vargas:
Q [Messing]. Let me try and put it this way, do you believe that there is any difference in the difficulty or the complexity of the cases that you have handled against Grossman and Vargas compared to Pickering and Cannon over the [last 2] years?
A [Rucka]. No.
Q. Do you recollect over the years cases that you have had against Grossman or Vargas that were more complex or sensitive than cases you have handled against Pickering or Cannon?
A. No. I think they’re of equal weight. To my eye, the quality of lawyering has been on par for all of them.
Tran. at 39:15-40:2.
Similarly, Mr. Rucka could not discern where Pickering, Cannon, Grossman or Vargas were in the hierarchy of the Salinas SCIF office. See Tran. 18:2-5.
Q. [Messing]: Okay. I asked you earlier about whether you knew where these individuals were in the hierarchy of SCIF. Is there anything about the work that you observed then performing that led you to form an opinion about where each of those attorneys were in the hierarchy of SCIF?
A. [Rucka]: no. The nature of the work – the nature of the cases that they have been involved in with me, all of then have been similar. I could not draw a distinction with regards [to] the subject matter of the case.
Tran. at 19:8-17. From Rucka’s perspective, the Grievants were performing the same work as the Specialist IIIs in the office.
2. Jim Gonzalez Could Not Discern Any Difference in the Complexity of Cases Handled by Grievants and Cases Handled by Other Specialist IIIs in the Salinas Office
Jim Gonzalez, another applicant-side attorney in the Salinas area, had a similar impression. Like Rucka, Gonzalez characterized the most complex and sensitive cases as one hundred percent disability cases, psychiatric cases, serious and willful cases, apportionment cases, and cases of first impression. Tran II at 101:2-17. Gonzalez worked on numerous cases opposite Grossman, Vargas, Pickering and Cannon. Tran II at 98:5-99:7. Like Rucka, Gonzalez could not determine where the foregoing SCIF attorneys were in the office hierarchy based upon the cases they handled. Tran II at 99:8-24. In fact, Gonzalez believed, “I think all the cases I handled with all the attorneys are just a matter of who manages to get assigned to them. So they were all the same.” Tran II at 99:24-100:1. Gonzalez stated that based on his experience working opposite Vargas, Grossman, Pickering and Cannon he could not ascertain any difference in the complexity, sensitivity or difficulty of their cases. Tran II at 105:9-19. From the perspective of opposing counsel, Grossman and Vargas were performing the same work as Pickering and Cannon – Specialist IIIs.
3. Other Specialist IIIs Could Not Discern Any Difference
Other Specialist IIIs that worked with the Grievants had similar observations. Cannon testified that he worked on serious and willful case alongside the Grievants, as well as cases with multiple defendants. Tran II at 64:9-24. Cannon testified that the multiple defendant cases were generally more complex because there could often be multiple defendants represented by the SCIF office, but also a number of insurance carriers with separate outside counsel. Although Cannon would be assigned a different employer to defend in such cases than Vargas or Grossman, he testified that there was no difference in the level of complexity. Thus, the Grievants handled cases with similar complexity to cases handled by Cannon. Tran II at 64:25-65:22.
Cannon also recalled discussing cases with the Grievants in order to exchange ideas and make suggestions on a daily basis. In fact, both Vargas and Grossman covered cases for Cannon in his absence. Tran II at 66:4-15. When asked whether there was a difference in the complexity, difficulty or sensitivity of cases Cannon handled compared to cases handled by the Grievants, Cannon testified: “Not really. Not that I could tell.” Tran II 66:24-67:7. In fact, Cannon stated that he was handling the same type of cases as Grossman and Vargas during the grievance period. Tran II at 70:8-12. He also testified that there was no significant difference in the number of cases he handled compared to the caseloads of Pickering, Grossman or Vargas. Tran II at 75:9-18. In Cannon’s opinion, there was no significant difference in the size or complexity of the caseload carried by Specialist IIIs – Cannon and Pickering, and the caseload carried by the Grievants.
E. Grievants Were Working as Specialist IIIs Because They Handled “the Most Sensitive and Complex” Cases in the Department
1. Grossman Handled the Most Sensitive and Complex Type of Cases in the Office
Grossman worked for SCIF as a Range D attorney through the end of 2002. 62:25-63:2. On January 1, 2003, Grossman was promoted to Specialist III. 62:16-19. According the SPB descriptions, Range D attorneys work on matters of average complexity, and do not act as lead attorneys. See U-4. Grossman testified, however, that as a Range D, he handled cases that were more complex, rather than cases of average complexity. Tran. at 76:13-15.
For example, in the Sanchez matter neither the injured employee nor the employer spoke English, and the employer maintained that no employment relationship existed, but that Sanchez was working off a loan. The case was very time-intensive requiring numerous depositions, proceedings before the Labor Commissioner, and an appeal concerning whether the Labor Commissioner’s rulings collaterally estopped consideration of certain issues in the workers compensation proceeding. See Tran. at 76:21-77:16.
Grossman also handled the Salas case, which was sensitive and complex in that it involved reconsideration of a judge’s ruling. Because Grossman, and other SCIF attorney’s frequently practiced before this particular judge, the arguments on reconsideration had to be handled delicately. See Tran. at 78:2-21.
In the Sumpter case, CIGA was involved in place of an insolvent insurer. As a result, SCIF would be fully liable if it faces even one day of policy exposure. Grossman had only 90 days to prepare for trial, during which time he had to obtain a medical opinion to counter the opinion of the agreed medical examiner (“AME”) selected by the applicant and CIGA. This case was complex because of abbreviated time-line, the issues related to CIGA’s involvement, and the presumption typically afforded to the opinion of an AME. Despite these challenges, Grossman convinced the judge to accept the opinion of SCIF’s medical expert, and find that SCIF had no liability. See Tran. at 78:23-80:18.
Grossman testified about many other complex cases that he worked on as a Range D attorney. The Beck case involved a complex semi-sedentary ratings issue. See 81:3-11. In the Tindle case, Grossman successfully argued that because no prior employer-employee relationship existed, an individual performing a service should not be considered an employee despite the presumption established by Labor Code section 3357. See Tran. at 85:3-23.
McPherson case was complex in that it involved resolution of a unique legal issue. A nurse was injured while working in a patient’s home. The case turned on whether the employer was the homeowner or the nurses registry, and involved interpretation of certain provisions of the Business and Professions Code regulating nurses registries. Grossman successfully argued that SCIF was not liable for the workers compensation benefits. 85:24-86:16
In the Brookshire case, Grossman petitioned to enforce a settlement agreement when a co-defendant did not pay its share of the settlement. Grossman defeated the co-defendants argument that enforcement of the award required a separate arbitration proceeding pursuant to a statutory scheme for contribution. 88:4-24.
Each of the foregoing cases are merely examples of complex cases that Grossman handled while working as a Range D attorney. In each instance, Mr. Estrada assigned the case to Grossman, and would warn Grossman if the case contained a sensitive issue. 89:18-24. In the Moore case, for example, Estrada warned Grossman that the case would be particularly difficult and complex. 90:1-3.
The volume of complex cases Grossman handled during the grievance period, as described above, provided him the expertise to co-author a practice guide treatise entitled “Workplace Injury Litigation.” In fact, Grossman edited every article in the book, and worked on the book during the grievance period. Tran III at 163:14-164:7.
2. Grossman’s Caseload Did Not Change When He was Promoted to Specialist
As Grossman testified, not much changed after Grossman was promoted to a Specialist III. Grossman experienced an increase in the overall number of cases he was handling, but that increase was consistent with the caseload increase that all SCIF attorneys experienced during that period. More important, he did not experience any significant change in the type of cases he handled. For example, he testified that prior to his promotion he had about 7 serious and willful cases, but after his promotion he had about 10 serious and willful cases. Tran. at 90:19-91:2. The additional cases Grossman received after his promotion included “one of Mr. Cannon’s serious and willful cases”, and “some serious and willful cases … that had been assigned to Mr. Pickering.” Tran at 91:21-24. Such cases are considered to be among the most complex cases handled by SCIF attorneys, yet he defended such cases as both a Range D, and Specialist III attorney. Moreover, many of the other serious and willful cases were handled by the other Specialist IIIs in the office – Pickering and Cannon. Mr. Estrada agreed with this assessment:
Q. [Mr. Brehl] Mr. Grossman [testified] that he worked on – independently on cases as much as he did now as a specialist. Would that be what you understand as you see the attorneys working in the office?
A. [Mr. Estrada] Yes.
Tran III at 68:17-22; see also Tran III at 73:7-14.
Grossman also testified that during the grievance period, he worked on some of Pickering’s cases:
[Pickering] would go on vacation Mr. Estrada would – usually would rotate coverage either for his appearances or his actual mail. So I mean there is a couple of cases of Mr. Pickering’s where I did points and authorities, I did a trial. Mr. Vargas probably did more of that than I did for Mr. Pickering.
Tran. at 108:18-23. Thus Grossman, as well as Vargas, covered for Specialist IIIs when they were Range D attorneys. Tran. at 109:1-2. This is further evidence that SCIF expected Range D attorneys to work at the Specialist III level.
In addition, Grossman continued to handle the cases he was assigned as a Range D attorney. Such cases were not reassigned to another Range D attorney. Thus SCIF expected Grossman to handle the same type of cases as a Specialist III as he handled as a Range D. Tran. at 91:9-14. Likewise, Pickering maintained the same caseload when he was promoted to Specialist III. Tran. at 5-14.
In contrast, when Cannon retired his cases were distributed throughout the office. Cannon’s caseload was in excess of 300 files when he left. About 24 of the files went to Pickering, another Specialist III, but the majority went to lower level attorneys, including Serrano and Mendoza, as well as Range D attorneys like Grossman. Tran. at 119:17-23.
3. Vargas Handled the Most Sensitive and Complex Type of Cases in the Office
Mr. Vargas has worked for SCIF since March 1982. Vargas is, and was during the grievance period, a Range D attorney. Vargas testified that “[f]ifty percent of my time is spent on complex cases.” Tran. II at 39:12-13. In fact, his “caseload pretty much mirrors Steve Pickering’s and Glen [Grossman]’s caseload” in both size and complexity. Id. at 39:17-21. This caseload included serious and willful cases, as well as aspects of 132a cases. Tran II at 37:24-38:3. The serious and willful cases were complex because the employer is ultimately financially responsible. In one serious and willful matter that Vargas handled, the case involved sensitive issues related to the employers financial setbacks and potential bankruptcy. In addition, the matter concerned two cases from the same family. One family member was killed in an accident, and the other became an amputee. Tran II at 45:3-17.
In another example of out of class work, Vargas settled a 132a claim that was assigned to Grossman when he was a Specialist III. Vargas’ work on the Reinhart case shows that he continues to work out of class. Tran II at 46:23-25.
For example, Vargas handled sensitive cases involving public figures, such as Richard Ortiz, the Mayor of Soledad. Tran II at 43:3-8; see also Tran III at 78:5-22 (Estrada testifying that cases involving politicians are sensitive and would be covered by Specialists). After Vargas worked on this case for over a year and a half, this matter was reassigned because Vargas became involved in his campaign. Thus, one of the rare instances were a case was reassigned to another attorney was a result of a potential conflict of interest as opposed to the complex or sensitive nature of the file.
Vargas testified about other examples of complex or sensitive matters he worked on, including cases involving claims of bad faith, such as the Yellow Cab case. See Tran II at 47:18-48:5. In the Atwood matter, the claimant was an employee of a local applicant-side law firm. The client in that matter was, in essence, a law firm that the SCIF office often faced. Thus, discussions of the issues and how to defend the case had to be handled delicately. Tran II at 48:10-49:4.
Similarly, Vargas has handled cases involving local defense firms such as the Kirby case. In that action, a very skilled local attorney represented himself “through depositions, through discovery motions, through hearings.” Tran II at 49:12-14. As a result, the case was more difficult than the average claim handled in the Salinas office.
4. Vargas Handled Corrections Cases, Some of the Most Complex Matters in the Office.
Most of his cases, however, involved the Department of Corrections, or other State Agencies where the personality of the department made the case particularly sensitive or complex. Tran II at 40:23-41-3. As discussed above, Mr. Rucka testified that Corrections cases tended to be more complex. Tran. at 34:18-20. Mr. Estrada also testified:
I think the complexity comes or difficulty comes in the client that we have to deal with in state cases. The return to work coordinator wants a little aggression from us or a little bit more special handling. That was the case with prison cases, to form a team of adjustors or attorneys and administrator and discuss cases that were ongoing and pending and discuss laws, and they wanted special attention to their cases…
Tran III at 27:8-16. Thus SCIF apparently agrees that Corrections cases are more complex, or at the very least more sensitive than the average case.
Vargas and Pickering handled most of the Corrections cases in the office. Tran. at 121:6-10. In fact, Vargas and Pickering each were responsible for about 50% of the Correction caseload. Tran. II at 34:2-22; U-18. They were part of a specific unit, along with specifically assigned claims adjusters, established to handle prison cases. Vargas testified about monthly meetings held with the Department of Corrections:
We would … review the case status of each case, where we would discuss strategy, we would discuss problems with the cases, how to prep the cases, if the cases involved witnesses, problem witnesses. In attendance at these meetings were wardens from both prisons, CEO’s of both prisons, Mr. Pickering and myself, the doctors assigned to some of the cases.
Tran II at 41:16-23. In addition, the liaison from Sacramento for the Department of Corrections would attend the meetings, which often involved the discussion of sensitive issues. Id. at 41:24-42:2. This special treatment for Corrections cases shows that SCIF considered the prison case to be among the more sensitive and complex matters handled by the office. Yet, the Corrections cases, were evenly distributed among Pickering and Vargas - a Specialist III and a Range D attorney.
Because Vargas and Pickering were the primary attorneys responsible for the Corrections cases, they would often cover for each other during vacations or other absences. Tran. II at 42:3-19. This included issuing legal opinions on each other’s cases. Id. at 42:15-19. Despite the difference in classification, there was no difference in the complexity of the cases handled by Pickering and the cases handled by Vargas. Tran II at 42:11-15.
Vargas also handled a case involving the wife of an associate warden. The matter involved monthly discussions of tax implications, strategy, responses, and the associate warden was often present. In addition, the associate warden was often SCIF’s main witness in other Corrections cases, and the case served as an educational seminar on how the associate warden should handle other cases. Because of the volume of corrections cases handled in the office, this matter was considered quite sensitive and needed to be handled in a delicate manner. Tran II at 43:20-44:9.
Moreover, the Corrections cases are the only matters that are assigned pursuant to an observable methodology. Apparently this was because Vargas and Pickering were part of a specific unit, with counterparts in claims specifically tasked to handle prison cases. See Tran II at 41:4-15. But, other new cases were seemingly assigned based on the size of ones caseload rather than the complexity of the issues involved in the matter. Tran. at 119:14-19. In fact, Vargas testified that Estrada often commented on the complexity of certain cases as they were initially assigned:
You need to pay attention to this case. This is a very active employer. The employer is pretty much involved in this case. You are going to have to pay attention to the matter or there is a broker involved and the broker is very active. They wanted us to really be proactive on the matter, so here you go.
Tran II at 50:13-19. Thus, Estrada was obviously aware of the complexity or sensitivity of incoming cases, yet still assigned them to Vargas. Finally, Vargas, as the only Spanish speaking attorney in the office, was assigned cases involving employers or witnesses that only spoke Spanish. Tran. II at 50:20-25. The method by which cases were assigned to attorneys in the office did not factor in the complexity or sensitivity of the case, and the classification of the attorney.
5. The Statistical Evidence Confirms that Grievants Were Handling the Most Complex and Sensitive Cases in the Office
The statistical evidence about Grossman’s caseload during the grievance period reinforces his testimony. The types of cases handled by Grossman demonstrate that he was working on the same type of complex cases as other Specialist IIIs in the Salinas office. Grossman handled “serious and willful” cases. See Ex. U-11, U-12, U-14 – U-17. In addition, Grossman handled most of the 132a cases in the office. See U-16, U-17; see also Tran II at 12:16-21. These cases are the type of “complex cases” typically handled by a Specialist III. Indeed, the other attorneys in the office handling such cases were Specialists such as Pickering and Cannon. An examination of the cases handled by Cannon, and the case handled by Grossman, for example, reveals the two attorneys handled the same type of cases during the grievance period. When Cannon left, many of his cases were transferred to Grossman. Finally, Grossman acted in a lead capacity over other attorneys in the office, including supervising Mesa, Mendoza and Serrano on reimbursement rates for surgery centers.
Similarly, the statistical evidence confirms that the type of cases that Vargas handled during the grievance period was substantially similar to the type of cases handled by Pickering. Vargas, like other Specialist IIIs, handled the most complex, sensitive cases in the office – “serious and willful claims” and 132a cases. See Ex. U-11, U-12, U-14 – U-17. More significantly, Vargas and Pickering were the primary attorneys assigned to handle corrections cases. See Tran II at 41:4-15. As with Grossman, there is no significant difference between the cases handled by Cannon and the cases handled by Vargas during the grievance period. Finally, Vargas also acted as a lead attorney for Serrano and Mesa. As a result, the evidence shows that the Grievants were performing the same work as other Specialist IIIs in the office, acted in a lead capacity, and handled the most sensitive and complex cases in the office. Consequently, the Grievants’ work was consistent with the SPB’s definition of a Specialist III, and were therefore working out-of-class.
F. Size of Caseload Indicated Grievants Were Working as Specialist IIIs
During the period at issue, Grossman and Vargas carried a caseload that was 30% higher than the average caseload for SCIF attorneys in northern California. For example, during the summer of 2002, the average number of cases per SCIF attorney was 257 in northern California offices. Consistent with the area average, the Salinas office also averaged 257 cases per attorney. During that period Pickering had 334 cases, Vargas had 334 cases, and Grossman had 327 cases. By contrast, Mesa had 246 cases, and Serrano had 205 cases during that period. Moreover, Estrada testified that he assigned, and reassigned, cases so that senior attorneys carried a heavier workload. Tran III at 43:4-44:5. The caseload carried by Grossman and Vargas was consistent with that of a Specialist III, which demonstrates they were working as Specialist IIIs.
G. Grievants Acted as Lead Attorneys
According to the SPB job descriptions Range D attorneys are supposed to perform work of average difficulty, and they do not act as lead over others. Yet Grossman testified that he acted as a lead attorney when he was a Range D attorney. Tran. at 76:7-9. For example, Estrada asked Grossman to act as a lead attorney and supervise cases handled by Luma Serrano. Tran. at 111:23-25.
Vargas also acted as a lead attorney. For example, he supervised Serrano on corrections cases on a day-to-day basis. Tran II at 35:11-36:10. He also supervised Karen Mesa on a regular basis. Tran II at 40:12-13. Indeed, Mesa testified that on the Goodman case for example, Vargas attended depositions with her, helped her formulate objections, and she consulted Vargas on general strategy, pleadings, and settlement. Tran III at 9:18-10:3; 15:21-17:18; see also Tran II at 47:6-16. In short, Vargas supervised her on almost all aspects of the case. Vargas even acted as the lead attorney supervising Grossman on occasion. Tran II at 56:24-57:4.
Indeed, SCIF’s chief witness, Miguel Estrada, admitted that when he left the office, he would assign Grossman and Vargas, when they were Range D attorneys, to be in charge of the office. Tran III at 70:14-19; 132:11-14. Estrada even commented that “[t]he times that Jorge [Vargas] has been placed in charge he has performed effectively.” Tran III at 162:16-22; Ex. U-22 at 13. In addition, Estrada essentially admitted the Grievants acted as lead attorneys. During his testimony, he engaged in an exercise in semantics stating he never used the words “lead” or “supervise” when directing the Grievants. Yet, he admitted “the outcome may be the same to help, when you help somebody or you assist somebody that may be leading…” Tran III at 70:23-71:5.
H. SCIF’s Chief Witness Supports Grievants’ Claim
SCIF’s chief witness was Miguel Estrada, the attorney in charge in the Salinas office. Tran III at 21:19-22:8. Much of his testimony supports the conclusion that Grievants were working out of class. As discussed above, he admitted in substance that Grievants acted as lead attorneys, even though he avoided the words “lead” or “supervise.” He also admitted that Grossman’s work was substantially the same before and after his promotion to Specialist. His testimony also reinforces the Grievants’ testimony that he assigned virtually all of the categories of complex or sensitive cases to Grossman and Vargas. Tran III at 109:3-125:21. Further, other than serious & willful cases, Estrada had no real idea how many “complex” cases the Grievants were handling as opposed to Specialists such as Pickering. Tran III at 123:21-124:2.
Most significant, Estrada testified that Specialists perform much of the same work as Range C and D attorneys. A Specialist does not work exclusively on “complex or sensitive” cases. Tran III at 42:20-43-5. However, a certain percentage of A Specialist’s workload should be more complex. Id. at 90:21-91:10. As a result, if a D is doing level III work for the same percentage of time as a III, then the D is working out of class. Id. at 91:24-92:10 (Estrada agreeing that one is working out of class if a D’s caseload mirrors the caseload of a Specialist). As discussed above, the Grievants carried a workload that was similar in size and complexity to other Specialists. In fact, the Grievants handled “complex or sensitive” cases at a level commensurate with the other Specialists. Thus, the Grievants were working out of class.
Estrada also testified that the Grievants were performing Level III work, and at the time of Grossman’s promotion were essentially doing Level III work. In fact, in order to be promoted to a Specialist, one had to have handled complex cases and shown that they could handle them. Tran III at 145:23-146:18. He admitted that Vargas and Grossman were both exceptionally qualified based upon their already demonstrated potential to handle III level work. See Tran III at 155:4-157:2; 158:18-25;U-22, U-23 (Promotional Readiness Examination Reports indicating that Vargas “might well be my best trial attorney.”). In fact, Estrada admitted that one of the most significant factors in demonstrating one’s ability to perform higher level work is how one handles trial work. See Tran III at 146:4-18. However, because he could only promote one, he promoted Grossman. Tran III at 161:9-16.
I. The Manner In Which Cases were Assigned Supports the Conclusion that Grievants were Working Out of Class
The testimony from all the witness indicates that, with one exception, there was no methodology for assigning incoming cases. Rather, Estrada assigned cases based on the workload of attorneys in the office. Tran III at 137:2-138:8. Similarly, cases were reassigned primarily to build up a case load for a new hire, or when there was a need to reduce a caseload. 37:1-12. In fact, Estrada could never recall reassigning a case away from the Grievants because it was too complex. Indeed, Estrada stated he tried not to reassign a case, “if at all.” 36:6-19. Tran III at 118:4-8.
As discussed above, the only cases that were assigned with any identifiable methodology were the Corrections cases. These cases, which all the witnesses essentially agreed were more difficult or complex, were assigned to Vargas and Pickering.
J. Grossman and Vargas Meet the Requirements of the SCIF Job Description for the III Specialist position
As discussed above, both Grossman and Vargas clearly meet the SPB definition for a Specialist III, the controlling definition in this action. Assuming arguendo that the SCIF definition applies, both Grossman and Vargas meet that definition as well.
SCIF defines the function of Senior Staff Counsel – Specialist, as “handling the most complex and most difficult legal problems and issues in the department.” Ex. U-3. Range C and D attorneys are expected to handle the “more complex requirements of litigation under the general direction of senior attorneys. Incumbents in this class shall exhibit the ability to effectively manage the most complex type of case while maintaining a high volume case load.” Ex. U-2
The only significant difference between the two definitions is the addition of the term “most difficult legal problems and issues in the department” and the lack of the phrase “under the general direction of senior attorneys” in the Specialist definition. As discussed above, neither Grossman and Vargas handled cases under the direction of senior attorneys, rather they both supervised other attorneys in the office. Moreover, both Grossman and Vargas handled the most difficult legal problems and issues in the department – “serious and willful” claims. Finally, as discussed above, both Grossman and Vargas carried a case load that was very similar, both in size and complexity, to other Specialists in the office. Therefore, the evidence demonstrates that even under the SCIF definitions, the Grievants were working out-of-class, as Specialists.
The evidence clearly shows that both Grossman and Vargas handled the volume and type of cases typically handled by a Specialist III. Their caseloads were substantially higher than the office average, and in line with the case load of other Specialist IIIs. In addition, they handled serious and willful claims, 132a cases, other cases involving the “most complex and difficult” issues arising in the office. The majority of their work during the grievance period was out of class, and comported with the work performed by other Specialist IIIs in the office. Indeed, Estrada essentially admitted much of the foregoing. Because their work mirrored the work of other Specialist IIIs in the office, both in quantity and complexity, the Grievants were working out of class. As a result, Grievants respectfully request a finding that they were working out of class during the grievance period, and an award of damages equal to the pay with interest they should have received for working as Specialist IIIs during the grievance period.
Dated: May __, 2004
CARROLL, BURDICK & McDONOUGH llp
Attorneys for Grievants
Glen J. Grossman and Jorge V. Vargas