Employer Fails To Terminate Probationary Sergeant In The Right Way, Loses Case

On July 6, 2008, Eddie Hernandez was promoted to the position of sergeant with the Los Angeles Port Police. The promotion entailed a six-month probationary period. At about the same time he was promoted, Hernandez obtained approval to take a family vacation to Lake Tahoe, California beginning December 30, 2008 and ending January 7, 2009.

On December 30, the Director of Human Resources approved a recommendation that Hernandez’s probation be terminated. That same day, a lieutenant telephoned Hernandez at his home to inform him that his probationary status had been terminated. Since Hernandez was in Lake Tahoe on his pre-approved vacation, the lieutenant left a voice mail message asking for a return call.

After conferring with Human Resources, the manager of the Port Police, who knew Hernandez was in Lake Tahoe, directed an officer to go to Hernandez’s home to serve him with a document entitled “Notice of Discharge, Suspension or Probationary Termination” The officer left a copy of the Probation Termination Notice under the front door. A second copy of the Probation Termination Notice was also sent to Hernandez’s home by first class mail, and on January 5, the Port Police sent a third copy of the Probation Termination Notice to Hernandez at his home by certified mail.

Hernandez did not receive the copy left at his front door until he came home from vacation on January 7; and he picked up the copy sent by certified mail on January 12. Hernandez later sued, claiming that the termination of his probation was ineffective, and that he had achieved permanent status.

The California Court of Appeals agreed. The Court started with the Los Angeles City Charter, which provides: “At or before the expiration of the probationary period, the appointing authority may terminate the probationary employee by delivering written notice of termination to the employee assigning in writing the reasons for the termination. Unless the probationary employee is served with written notice of termination during the probationary period, the employee’s appointment shall be deemed complete.” A separate section of the Charter allows that “service of notice may be made by handing a copy to the person or sending a copy by certified mail to the person’s last known residence if, after due diligence, the person cannot be found.”

In the Court’s eyes, the Port Police was “required to strictly adhere to the notice requirements of the Charter to effect termination of Hernandez’s probation. That is, the Port Police had to hand Hernandez a copy of the written Probation Termination Notice unless, after due diligence, they could not find him. The Port Police did not hand a copy of the Probation Termination Notice to Hernandez. The certified mail option was not available because the Port Police were not unable to find Hernandez.

“On the contrary, it is undisputed that before the Port Police sent an officer to leave a copy of the Probation Termination Notice at Hernandez’s home, and before a copy was sent by certified mail, supervisors knew that Hernandez was on vacation in Lake Tahoe, California and that he was reachable by cell phone. Nothing in the record suggests anything prevented the Port Police from finding out where Hernandez was staying in Lake Tahoe and causing him to be personally served with the Probation Termination Notice there. Having failed to use due diligence to find and personally serve Hernandez, the Port Police did not meet the condition for using the alternate method of service by certified mail.”

Hernandez v. City of Los Angeles, 2012 WL 3989165 (Cal. App. 2 Dist. 2012).