Opinion
H044240
12-21-2018
MARIA CASEY, Plaintiff and Appellant, v. FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-15-CV-279162 )
Foothill-De Anza Community College District (the District) laid off Maria Casey from her position as Special Assistant to the President of Foothill College because of lack of work or funds. Shortly after Casey's layoff, she applied to the District for the position of Web and Print Communications Design Coordinator (Web Coordinator). The District hired an outside applicant to fill that position. Casey sought a writ of mandate from the trial court ordering the District to offer her the Web Coordinator position on the theory that the District had failed to carry out its ministerial duty under Education Code section 88117, subdivision (a)(1) to give reemployment preference to previously laid off employees over new applicants. The District responded that section 88117, subdivision (a)(1)'s reemployment preference did not apply to Casey's application for Web Coordinator, as that position would have been a promotion for her.
All further statutory references are to the Education Code unless otherwise indicated.
The trial court rejected the District's construction of section 88117, subdivision (a)(1), reading it as providing a reemployment preference as to any position for which the laid off employee is qualified, regardless of the position's classification. Nevertheless, the trial court declined to issue a writ of mandate, finding that Casey was not qualified for the Web Coordinator position. On appeal, Casey challenges that factual finding. On cross-appeal, the District challenges the trial court's interpretation of section 88117, subdivision (a)(1). Finding no error, we affirm.
I. BACKGROUND
A. Factual Background
The District is a nonmerit system community college district. In community college districts, the "classified service is made up of employees in nonacademic positions. (§§ 88003, 88004.)" (Service Employees Internat. Union v. Board of Trustees (1996) 47 Cal.App.4th 1661, 1667, fn. 2.) The District assigns each job in its classified service to a "classification," which reflects the level, scope, and complexity of the job's duties. The District maintains various salary schedules for its classified service jobs, including the Confidential Salary Schedule and the ACE Salary Schedule.
Community college districts have the option to adopt a merit system, which is a type of civil service system for classified, or nonacademic, employees. (§ 88060 et seq.; Holtzman, Cal. Prac. Guide, California Public Entity Employers, Public Sector Employment Litigation Ch. 1-A; Hood v. Compton Community College Dist. (2005) 127 Cal.App.4th 954, 960.) Certain provisions of the Education Code apply only to merit system community college districts. (§ 88060 et seq.) Districts that have not adopted a merit system are referred to as nonmerit system districts.
Casey was employed by the District as Special Assistant to the President of Foothill College for nine years. In that position, which was classified as a grade C5-12 on the District's Confidential Salary Schedule, Casey provided secretarial, administrative, clerical, graphics, and event planning support to the Foothill College President.
Effective January 1, 2014, Casey took leave from her Special Assistant position to temporarily fill the position of Web Coordinator, which was classified as a grade C1-62 on the ACE Salary Schedule. The District's Web Coordinator "directs the visual identity and visual communications for the college" by, among other things, "[o]versee[ing] and creat[ing] the design and visual identity standards for the college[;] implement[ing] a consistent visual image and presence for all college Web, electronic and print communications[; and d]irect[ing] other designers in the production of college Web, electronic and print publications and marketing materials." The District has established various "employment standards" for the Web Coordinator position, including "[a]bility to: . . . Design and produce College and District projects through final production/publishing. . . . Establish and maintain cooperative and effective working relationships with others. . . . [And m]eet and track schedules and time lines."
As noted, the Special Assistant to the President of Foothill College position had a salary grade of C5-12 on the Confidential Salary Schedule, which is comparable to salary grades C1-56 and C1-57 on the District's ACE Salary Schedule. It is undisputed that the Web Coordinator position, a grade C1-62 on the ACE Salary Schedule, had a higher classification and pay grade than the Special Assistant to the President of Foothill College position.
Casey was notified on April 8, 2014 that the District was eliminating the Special Assistant to the President of Foothill College position due to lack of work or funds effective July 1, 2014. In late April, Casey and the District agreed that Casey would continue as interim Web Coordinator through December 31, 2014. Andrea Hanstein became Director of Marketing and Public Relations at Foothill College, and Casey's direct supervisor, on May 1, 2014.
The District initiated a hiring process to fill the Web Coordinator position on a permanent basis in October 2014. Casey applied for the position. The Human Resources Department screened all applications for completeness and forwarded 17 complete applications to the hiring committee, which consisted of Hanstein and three others. The hiring committee interviewed five candidates, including Casey. Based solely on the candidates' answers to interview questions, the hiring committee voted to forward three of those five candidates, including Casey, for further consideration. Next, the hiring committee decided by consensus on two candidates to be forwarded to the hiring manager (in this case, Hanstein) to make the final hiring decision. The hiring committee selected the two finalists based on committee members' firsthand working knowledge of the candidates, if any, as well as each candidate's interview responses and portfolio. Casey was not one of the two finalists. The individual ultimately hired as Web Coordinator was not an existing District employee.
According to Hanstein, while "Casey met the minimum qualifications" for the Web Coordinator position, that did not mean she was "qualified to successfully perform the full scope of job duties of the position." Hanstein never explained her understanding of the term "minimum qualifications." Similarly, Dorene Novotny, the District's Vice Chancellor of Human Resources and Equal Opportunity, declared that Casey met the "minimum qualifications" for the Web Coordinator position, but that "[m]eeting 'minimum qualifications' alone does not mean that the individual is qualified to perform the full range of duties required by a job classification." Like Hanstein, Novotny did not define the term "minimum qualifications."
On appeal, the District asserts that candidates met the "minimum qualifications" for the Web Coordinator position if they "had submitted the required Diversity Statement, and met the minimum Education/Experience requirements." The District made the same argument below. But nothing in the record supports that definition of "minimum qualifications."
Hanstein declared that Casey's "performance while working under [Hanstein's] supervision demonstrated" that Casey could not successfully perform the full scope of the Web Coordinator's job duties. Specifically, Hanstein declared that Casey lacked "the advanced technical skill set . . . necessary to perform the key functions of the Web & Print Coordinator position," such as "creat[ing] design and visual identity standards for the College; direct[ing] the visual identity and visual communications for the College; [and] implement[ing] a consistent visual image and presence for all College Web, electronic and print communications . . . ." Hanstein further declared that Casey lacked the leadership skills necessary to "lead a design team or direct other designers . . . ." According to Hanstein, due to those shortcomings, "Casey only performed a small fraction of the duties expected of someone working as the Web & Print Coordinator on a permanent basis. The work that she performed successfully was on lower-level, simple design projects such as a one-page flyer, where [Hanstein] was involved." Hanstein testified that Casey missed deadlines on two occasions. Hanstein further testified that Casey's work on the college catalog lacked consistency, such that it was reassigned to a lower-level graphic design technician. Finally, Hanstein testified that she received at least one complaint about Casey's "attitude."
B. Procedural History
On April 9, 2015, Casey sued the District, seeking a writ of mandate ordering it to offer her the Web Coordinator position and damages for loss of benefits and income. Her complaint alleges that section 88117 imposes on the District a ministerial duty to give reemployment preference to previously laid off employees over new applicants. She further alleges the District failed to carry out that ministerial duty when it offered the Web Coordinator position to a new applicant over her, a previously laid off employee.
Casey moved for a traditional writ of mandate under Code of Civil Procedure section 1085 on May 26, 2016. The District opposed that motion on the ground that the Web Coordinator position would have been a promotion for Casey and the section 88117, subdivision (a)(1) reemployment preference applies only to lateral and lower positions. In an order issued on September 13, 2016, the trial court denied the motion for writ of mandate. The trial court rejected the District's construction of section 88117, subdivision (a)(1), reading it instead as providing a preference for reemploying a laid off employee over hiring a new applicant in any position for which the laid off employee is qualified, regardless of the position's classification. However, the trial court found that Casey was not qualified for the permanent position of Web Coordinator. Therefore, the court concluded that Casey was not entitled to preference.
Casey timely appealed. The District timely cross-appealed.
II. DISCUSSION
A. Appellate Issues and Standards of Review
This appeal raises two issues. First, we must determine the meaning and scope of section 88117, subdivision (a)(1). Casey argues that provision gives a hiring preference to laid off employees over new applicants for any position for which the laid off employee is qualified. The District contends the section 88117, subdivision (a)(1) hiring preference does not apply to positions that would constitute a promotion for the laid off employee. That is, the District says section 88117, subdivision (a)(1) provides a hiring preference to laid off employees over new applicants for lateral or lower positions only. "[T]he interpretation of a statute is a legal issue subject to de novo review." (Fry v. City of Los Angeles (2016) 245 Cal.App.4th 539, 549 (Fry).)
Second, to the extent we adopt Casey's reading of section 88117, subdivision (a)(1), we must review the trial court's finding that Casey was not qualified for the Web Coordinator position. " ' "In reviewing a trial court's judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court's factual findings." [Citation.] ' " (Fry, supra, 245 Cal.App.4th at p. 549.) Under that standard of review, the question for this court is "whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) In making that determination, we "resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633 (Kuhn).) But we do not "blindly seize any evidence in support of the respondent in order to affirm the judgment." (Id. at p. 1633.) The quality of the evidence matters. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).) Evidence is substantial where it is of " ' "ponderable legal significance," ' " " ' "reasonable in nature, credible, and of solid value . . . ." ' " (Howard, supra, at p. 631.) "Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence." (Roddenberry, supra, at p. 651.)
B. Section 88117 , Subdivision (a)(1)
Section 88117, subdivision (a) provides: "A person laid off because of lack of work or lack of funds shall be eligible for reemployment for a period of 39 months as follows: [¶] (1) The person's reemployment shall take preference over new applicants. [¶] (2) The person shall have the right to participate in promotional examinations within the district during the period of 39 months. [¶] (3) If the person is reemployed in a new position and fails to complete the probationary period in the new position, he or she shall be returned to the reemployment list for the remainder of the 39-month period. The remaining time period shall be calculated as the time remaining in the 39-month period as of the date of reemployment."
Section 88117 appears in the portion of the Education Code governing merit system community college districts. However, section 88014 makes section 88117 applicable to nonmerit system community college districts, like the District.
1. Principles of Statutory Construction
When interpreting a statute, "our primary task is to 'ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] The Legislature's language is the best indicator of its intent. [Citation.]" (926 North Ardmore Ave., LLC v. County of Los Angeles (2017) 3 Cal.5th 319, 328.) Thus, "[o]ur analysis begins with the text of [the] provision . . . . [Citations.] We consider the ordinary meaning of the statutory language, its relationship to the text of related provisions, terms used elsewhere in the statute, and the overarching structure of the statutory scheme. [Citations.] When the language of a statutory provision remains opaque after we consider its text, the statute's structure, and related statutory provisions, we may take account of extrinsic sources—such as legislative history—to assist us in discerning the Legislature's purpose. [Citation.]" (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155-156 (Winn).)
2. The Reemployment Preference Extends to Promotions
As noted above, the parties essentially debate the meaning of "reemployment" in section 88117, subdivision (a)(1), with Casey arguing it means rehiring to fill any position for which the laid off employee is qualified and the District contending it means rehiring to fill only lateral or lower positions. The statute does not define the term "reemployment," so we look to dictionaries to ascertain its ordinary, usual meaning. (Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192 Cal.App.4th 75, 83; Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 504.) The Oxford English Dictionary defines "reemployment" as "[t]he action or fact of re-employing or being re-employed." (Oxford English Dict. (2018) <http://www.oed.com/view/Entry/247477> [as of Dec. 20, 2018], archived at: <https://perma.cc/YU9R-XAAW>.) The same dictionary defines "re-employ" as "to take (a person) back into employment." (Oxford English Dict. (2018) <http://www.oed.com/view/Entry/160679#eid26461031> as of Dec. 20, 2018], archived at: <https://perma.cc/4U2B-6JQD>.) And it defines "employment" as "the hiring of a person to undertake paid work, esp. in return for wages or a salary under an employment contract" or "the state of working for an employer, esp. in return for wages." (Oxford English Dict. (2018) <http://www.oed.com/view/Entry/61378?redirectedFrom=employment#eid> [as of Dec. 20, 2018], archived at : <https://perma.cc/6NKG-9VFC>.) Thus, the ordinary meaning of "reemployment" is "the action or fact of rehiring a person to undertake paid work or of returning to the state of working for an employer." That definition contains no limitation as to the nature or level of the position a person is rehired to fill.
Of course, basic principles of statutory construction require us to construe section 88117, subdivision (a)(1), not in isolation, but in the context of related provisions and the statutory scheme as a whole. (Winn, supra, 63 Cal.4th at p. 155; United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1090.) Section 88117, subdivision (a) in its entirety confirms that "reemployment," as it is used in that provision, includes rehiring to fill a higher position than the one the employee held prior to being laid off. Section 88117, subdivision (a) begins: "A person laid off because of lack of work or lack of funds shall be eligible for reemployment for a period of 39 months as follows . . . ." (Italics added.) Accordingly, everything that follows describes the laid off person's eligibility for "reemployment." That includes subdivision (a)(2)'s authorization to participate in promotional examinations. Thus, by its own terms, section 88117, subdivision (a) describes "reemployment" as encompassing promotional opportunities.
Stepping back even further, other provisions of the Education Code likewise support the conclusion that the section 88117, subdivision (a)(1) reemployment preference is not limited to certain classes of positions. Elsewhere, the code restricts reemployment of classified community college district employees to particular classifications. For example, section 88128 restricts "reinstate[ment] or reemploy[ment]" of permanent classified employees after voluntary resignation "to a position in his or her former classification as a permanent or limited-term employee, or as a permanent or limited-term employee in a related lower class or a lower class in which the employee formerly had permanent status." Section 88195 grants a reemployment preference to permanent classified employees who have exhausted all available paid leave and any leaves of absence due to nonindustrial accidents or illnesses, specifying that such employees "shall be reemployed in the first vacancy in the classification of his or her previous assignment." Plainly, the Legislature knows how to limit reemployment to certain classifications where that is its intent. That the Legislature chose not to include any such limitation in section 88117, subdivision (a)(1) indicates that provision's reemployment preference is not restricted to certain classes or classifications. (See Tucker v. Grossmont Union High School Dist. (2008) 168 Cal.App.4th 640, 645-646 [concluding that section 45298, which provides that persons laid off by school districts "shall be reemployed in preference to new applicants," is not "restricted to reemployment only in the same class from which [the employee] was laid off . . . [b]ecause the Legislature did not include [any] language" to that effect].)
The District contends section 88117, subdivision (a)(2) compels the more narrow reading of the section 88117, subdivision (a)(1) reemployment preference that it advocates for two reasons. Before exploring those arguments, some background is necessary. As noted above, community college districts may adopt a merit system (a type of civil service system) for classified employees. (§ 88060 et seq.) In the context of civil service promotions generally, lists of eligible candidates are generated based on the results of competitive promotional examinations. (California State Personnel Bd. v. California State Employees Assn., Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4th 758, 767; Cal. Const., art. VII, § 1, subd. (b) ["In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination"].) In the context of merit system community college districts specifically, the Education Code calls for the use of promotional examinations in filling vacancies in the classified service. (§ 88091, subd. (a) ["All vacancies in the classified service shall be filled pursuant to this article and the rules of the commission, from applicants on eligibility lists which, wherever practicable, as determined by the commission, shall be made up from promotional examinations, or appointments may be made by means of transfer, demotion, reinstatement, and reemployment in accordance with the rules of the commission. . . ."].) The code does not require the use of promotional examinations in nonmerit system community college districts.
For its first argument, the District relies on the fact that section 88117's predecessor statute included the reemployment preference that now appears in section 88117, subdivision (a)(1) when the promotional examination language that currently appears in section 88117, subdivision (a)(2) was added. The District contends that the promotional examination language "would not have been necessary if the provision that is currently [section] 88117[, subdivision] (a)(1) covered promotional opportunities." We disagree. As explained above, in a merit system community college district, participation in promotional examinations is a prerequisite to obtaining employment in a higher classification. Therefore, even though section 88117, subdivision (a)(1)'s reemployment preference encompasses promotions for which laid off employees are qualified, section 88117, subdivision (a)(2) is necessary to ensure laid off employees can participate in the required promotional examinations. That is, without section 88117, subdivision (a)(2), the promotional examination requirement effectively restricts the scope of the section 88117, subdivision (a)(1)'s reemployment preference in a manner the Legislature did not intend.
Second, the District argues that the phrase "the right to participate in promotional examinations" in section 88117, subdivision (a)(2) should not be read "literally" in the context of nonmerit system community college districts, which are not statutorily required to use promotional examinations. Instead, the District asks us to read that phrase as "the right to access promotional opportunities" for purposes of nonmerit system community college districts. We decline to rewrite the provision in that fashion. Section 88117, subdivision (a)(2) is unambiguous. It grants employees laid off because of lack of work or lack of funds the right to participate in promotional examinations to the extent such examinations are held in the district during the prescribed period. That promotional examinations may not be held in a particular district does not render the provision ambiguous.
In sum, we construe the section 88117, subdivision (a)(1) as conferring a reemployment preference on a laid off employee over new applicants for any available position for which the laid off employee is qualified.
C. Substantial Evidence Supports the Trial Court's "Not Qualified" Finding
The trial court denied Casey's petition on grounds she was not qualified for the Web Coordinator position. That finding is supported by substantial evidence.
The District established various qualifications for the Web Coordinator position, including "[a]bility to: . . . Design and produce College and District projects through final production/publishing. . . . Establish and maintain cooperative and effective working relationships with others. . . . [And m]eet and track schedules and time lines." The District presented evidence supporting reasonable inferences that Casey lacked those qualifications. In particular, Hanstein, who supervised Casey for eight months during which Casey acted as interim Web Coordinator, testified that Casey's work on the college catalog had to be reassigned to a lower-level graphic design technician due to lack of consistency. That testimony supports a reasonable inference that Casey lacked the requisite ability to design and produce College and District projects through final production/publishing. Hanstein's testimony that she received a complaint about Casey's attitude supports a reasonable inference that Casey lacked the requisite ability to establish and maintain cooperative and effective working relationships with others. And Hanstein's testimony that Casey missed two deadlines supports a reasonable inference that Casey lacked the requisite ability to meet and track schedules and time lines.
Hanstein's testimony was not uncontradicted. Casey submitted a declaration stating that she did not work on the college catalog and that she met the two deadlines Hanstein testified she had missed. But the existence of conflicts in the evidence does not preclude us from concluding that substantial evidence supports the trial court's factual finding. (People v. Orange County Charitable Services (1999) 73 Cal.App.4th 1054, 1071 ["Conflict in the evidence is of no consequence"].) Rather, in applying the substantial evidence standard of review, we "resolve all explicit conflicts in the evidence in favor of the respondent . . . ." (Kuhn, supra, 22 Cal.App.4th at p. 1632-1633.) And we affirm if there is substantial evidence supporting the trial court's decision, even if that evidence is contradicted by other evidence and regardless of "whether different findings would have been more reasonable . . . ." (Worthington v. Davi (2012) 208 Cal.App.4th 263, 277.)
Casey criticizes Hanstein's testimony as insufficiently specific and unsupported by documentary evidence. But, in applying the substantial evidence standard of review, " '[i]t is not our role to reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony. . . .' " (Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1300.) And we may not reject " 'the testimony of a witness offered in support of a judgment . . . unless it is physically impossible or inherently improbable,' " which Hanstein's testimony was not. (Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1233.)
Casey contends documentary evidence refutes Hanstein's testimony that she missed deadlines on two projects. We disagree. As to one of the projects, Casey submitted an email she sent to Laura Woodworth on September 9, 2014 stating "the postcards/envelopes should be delivered today." But Casey submitted no documentary evidence showing what the deadline was for that project, when the postcards and envelopes actually were delivered, or that Woodworth indicated the project was timely completed. Accordingly, Casey's documentary evidence did not refute Hanstein's testimony that Casey failed to meet deadlines set by Woodworth in connection with that project. As to the second project, Hanstein testified that Casey failed to deliver course readers to Betsy Nikolchev in time for the first day of classes. Casey submitted an email she sent to Nikolchev on September 15, 2014 stating that she had dropped off the completed books. But the record contains no evidence as to the deadline Nikolchev set for that project or when classes began in Fall of 2014. Therefore, Casey's email does not refute Hanstein's testimony that Casey missed a deadline in connection with the project for Nikolchev.
Finally, Casey points to evidence that she met the "minimum qualifications" for the Web Coordinator position in an effort to undermine the trial court's finding. While Hanstein and Novotny stated that Casey satisfied the "minimum qualifications" for the position, neither explained their understanding of that term, other than to say it did not mean Casey was qualified. Thus, their statements do not undercut the trial court's finding that Casey was not qualified for the Web Coordinator position.
III. DISPOSITION
The judgment is affirmed. The District shall recover its costs on appeal.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
DANNER, J.