California Sch. Employees Assn. v. Jefferson Elementary Sch. Dist.

Citation119 Cal.Rptr. 668,45 Cal.App.3d 683
CourtCalifornia Court of Appeals
Decision Date04 March 1975
PartiesCALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, a non-profit corporation, Plaintiff and Appellant, v. JEFFERSON (ELEMENTARY) SCHOOL DISTRICT, a state agency, and the Personnel Commission thereof, Defendants and Respondents. Civ. 33807.

Richard H. Perry, Burlingame, for plaintiff and appellant.

Keith C. Sorenson, Dist, Atty., by Thomas F. Casey, III, Deputy Dist. Atty., Redwood City, for defendants and respondents.

KANE, Associate Justice.

This is an appeal 1 from the lower court's judgment denying a petition for writ of mandate and thereby affirming respondents' action in discharging one Betty Comisky ('Betty'), a school employee.

Betty, the real party in interest, was a permanent classified employee of respondent school district from July 1, 1967 to May 4, 1972. During this period, covering nearly four years and ten months, Betty was absent from work 388 days, amounting to 31 percent of the total work time. Pursuant to Education Code, 2 section 13740, 3 and the rules and regulations issued thereunder, respondents brought charges claiming that Betty had been unable to maintain acceptable standards of productivity due to her extensive and prolonged absenteeism and had become inefficient in the performance of her assigned duties within the meaning of the code and of respondents' rules and regulations.

It stands undisputed that the procedural requirements prescribed by the code and the regulations have been minutely complied with. Thus, Betty was duly served with a notice of written charges (§ 13742). After she denied the charges and filed an appeal therefrom (§ 13743), a fair and extensive hearing was held before the Personnel Commission of the Jefferson Elementary School District ('Commission'), at which Betty was represented by Mr. Young, a field representative of the California School Employees Association, and was permitted to, and did, introduce oral and documentary evidence. The Commission carefully reviewed the whole record and found that the charge of inefficiency caused by excessive absences was supported by the evidence. In its detailed findings the Commission pointed out that Betty could not be depended upon to complete assigned tasks within the prescribed time; that due to her prolonged absences jobs with critical deadlines could not be assigned to her; that the workload was shifted inordinately to other employees and unfairly taxed and burdened them; and that her recurring absences impeded the overall work distribution and scheduling for the office in which she worked.

From the decision of the Commission sustaining her dismissal, Betty filed a petition for writ of mandate seeking reinstatement and related relief as a permanent employee. The trial court concluded that the findings of the Commission were supported by substantial evidence and that the decision of dismissal was supported by the findings.

As a threshold matter, we point out that the parties agree that the order of respondents dismissing Betty substantially affects a fundamental vested right and that therefore the independent judgment rule of Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, is applicable. Although the case at bench was decided prior to the rendition of the decision in Strumsky, the Supreme Court specifically mandated that the new rule 'shall apply to all pending and future proceedings in trial courts and all pending and future appeals.' (Strumsky, supra, at p. 45, 112 Cal.Rptr. at p. 816, 520 P.2d at p. 40.) We need not remand the matter, however, for the parties at oral argument stipulated that the issue is purely one of law and that a remand would be an unnecessary--indeed, a futile--waste of time and resources. In short, the parties have agreed that we consider the case as if the trial court had utilized the independent judgment standard. 4

A short review of the record convinces us that the finding of inefficiency by both the Commission and the trial court is overwhelmingly, if not conclusively, supported by the documentary and testimonial evidence received in the proceedings. It must be noted that the excessiveness of Betty's absenteeism is abundantly demonstrated by a recitation of the school record which, broken into school years, shows the following absences:

1967--68 School Year (July 1, 1967--June 30, 1968): September 20 through November 10, 1967, industrial accident leave (i.e., 'State Compensation'); January 18--19, 1968, February 2, 1968, 'normal' sick leave; March 18 through April 21, 1968, industrial accident leave; May 16 through June 30, 1968, leave of absence without pay as a result of a heart attack.

1968--69 School Year (July 1, 1968--June 30, 1969); During September and October 1968, as a result of her heart attack, Betty worked half-days and was charged one-half day's absence without pay for each such day. July 1 through August 31, 1968, she continued on leave of absence without pay for the heart attack. During the month of November 1968, as a result of said heart attack, she worked three full and two one-half days per week and was charged with four days' absence without pay as a result thereof during that month. On February 10, 1969, she was absent for 'normal' sick leave. Thereafter Betty was granted six months' leave of absence without pay as a result of a second heart attack, said period running from April 16, through September 1969.

1969--70 School Year (July 1, 1969--June 30, 1970): As aforesaid, the six months leave of absence without pay commencing in April of the 1968--69 school year ran through September of the 1969--70 school year. Betty was then absent again December 30--31, 1969 and January 5 through January 9, 1970 on 'normal' sick leave.

1970--71 School Year (July 1, 1970--June 30, 1971): In September 1970 Betty requested a personal leave for 10 days. On October 23 and November 5 through November 13, 1970, she was absent on industrial accident leave. On January 4, 1971 and March 5, April 14 through April 16, May 19 through May 27, 1971, Betty was on 'normal' sick leave. Commencing May 28, 1971 and running through to the commencement of the 1971--72 school year, i.e., through August 31, 1971, she continued absence on 'extended' sick leave.

1971--72 School Year (July , 1971--May 4, 1972): As above stated, the 'extended' sick leave continued to August 31, 1971. Thereafter, Betty was absent on December 10, 1971, January 10 through January 12, 1972, and April 3 through April 7, 1972, on 'normal' sick leave.

In the light of this 'speaking' record it requires no strenuous effort to see that absences of such frequency and magnitude as a matter of course rendered Betty's performance unreliable, inefficient and inadequate; that it worked as an impediment to the orderly conduct of the office; that it put an unfair burden on fellow employees and/or necessitated the hiring of substitute employees. This conclusion is not only the dictate of common sense but is also borne out by the testimonial evidence adduced in the proceedings. Thus, office manager Barrera, one of Betty's supervisors, testified that Betty's absences 'did disturb the office because everyone else is pretty loaded with work already and, as a matter of fact, we are sparsely manned and, therefore, any additional workload just meant that much more that someone else had to put out.' He further testified that due to the lack of Betty's attendence the school had to hire two or three temporary substitutes. Mr. Barrera's testimony was corroborated by Mr. Muller who supervised Betty in her assignment as assistant librarian. Mr. Muller testified that as a result of Betty's extensive absences 'Things that were there that needed to be done didn't get done.'

In the face of such a revealing record, appellant fails to challenge the sufficiency of evidence supporting the finding of inefficiency and attacks the judgment on entirely different grounds. First, appellant contends that Betty performed her work efficiently when she was present; her only 'fault' was that she was sick, which is not an offense punishable by discharge. Secondly, appellant maintains that Betty was not dischargeable for taking authorized leaves because, pursuant to statute, the employee must be restored to his original position at the end of the absences if he is able to assume his duties or, in the alternative, he must be put on a reemployment list for a period of 39 months if he is incapable of attending to his duties (§§ 13651.2, 13651.5). Appellant finally claims that respondents' only remedy would have been to place Betty on the reemployment list and, having failed to do so, they are now estopped from claiming inefficiency caused by authorized absences. For the reasons which follow we find none of these arguments acceptable and affirm the judgment.

Appellant's first assertion is obviously misplaced. The issue of whether a public employee may be dismissed for physical disability is not a novel one. There are numerous cases, both in California and elsewhere, which uphold the dismissal of a public employee who is physically or mentally unable to perform the duties called for in his position (Gentner v. Board of Education (1933) 219 Cal. 135, 25 P.2d 824; Riggins v. Board of Education (1956) 144 Cal.App.2d 232, 300 P.2d 848; Tilton v. Board of Education (1938) 25 Cal.App.2d 746, 78 P.2d 474; In re Carney (1944) 182 Va. 907, 30 S.E.2d 789; Sganga v. Teaneck Tp. (1943) 130 N.J.L. 218, 32 A.2d 505; Balacek v. Board of Trustees, etc. (1941) 263 App.Div. 712, 30 N.Y.S.2d 1007; Loucks v. Board of Education (1940) 258 App.Div. 1003, 16 N.Y.S2d 733; School Dist. No. 1 v. Teachers' Retirement Fund Ass'n (1939) 163 Or. 103, 95 P.2d 720). It bears emphasis that the issue raised by appellant was addressed to and disposed by the Supreme Court in Hostetter v....

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