Jenkins v. County of Riverside

• Decision Date: 09 February 2005
• Docket Number: No. 03-5412.,03-5412.
• Citation: 398 F.3d 1093
• Parties: Evelyn JENKINS, Plaintiff-Appellant, v. COUNTY OF RIVERSIDE; Kenneth B. Cohen, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1093

398 F.3d 1093

Evelyn JENKINS, Plaintiff-Appellant, v. COUNTY OF RIVERSIDE; Kenneth B. Cohen, in his official capacity, Defendants-Appellees.

No. 03-5412.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2004.

Filed February 9, 2005.

Diane Catron Roth, Roth & Roth, LLP, Riverside, CA, for the plaintiff-appellant.

Christopher D. Lockwood, Aris, Lockwood, & Gray, San Bernardino, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-99-05476-SVW.

Before BROWNING, PREGERSON, and BERZON, Circuit Judges.

PER CURIAM.

Plaintiff-Appellant Evelyn Jenkins alleges, in this § 1983 suit, that Defendant-Appellee County of Riverside ("the County") deprived her of her property right in continued public employment in violation of the Fifth and Fourteenth Amendments when she was summarily terminated in 1998. A prior panel of this court concluded that Jenkins would prevail on such a claim so long as she was a "regular" employee at the time of her termination. See Jenkins v. County of Riverside, 25 Fed.Appx. 607, 609 (9th Cir. Jan.7, 2002) (unpublished decision) (Jenkins I) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).¹ For the second time, this court is asked to determine whether Jenkins was a "regular" or "temporary" employee of the County as defined by sections 1(t) and 1(v), respectively, of County Ordinance 440, the "Riverside County Salary Ordinance."

The first panel to consider this question held that a genuine issue of material fact existed as to whether Jenkins was "qualified" for regular employment within the County and remanded to the district court for further discovery. See id. at 610. No other deficiency in the record was identified. The prior panel's holding that the "qualification" question is determinative is the law of this case. See S.F. Culinary, Bartenders & Serv. Employees Welfare Fund v. Lucin, 76 F.3d 295, 297 & n. 3 (9th Cir.1996); Ninth Cir. R. 36-3(b)(I). Though we have limited discretion to decline to follow the law of the case, none of the factors justifying such a departure apply here. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.1995).² Disposition of this appeal therefore turns entirely on whether Jenkins was, in fact, "qualified" for regular employment. Because we hold that she was so qualified, we reverse and remand for further proceedings.

I. Background

Jenkins was hired by the County as an "Office Assistant II" ("OA-II") on May 14, 1992. As the deposition testimony of her supervisor makes clear, she was hired to work at a local hospital to "clean up a tremendous backlog of fetal monitoring strips which were piled in the hospital's basement," "finished that task within a few months and less than six months after she was hired," and when she completed that task, was "trained and assigned with the rest of the regular staff to perform the ongoing work of the [nursing] department." As the district court stated, "[i]t is undisputed that the position Plaintiff held was designated a temporary position, and at all times Plaintiff was designated a temporary employee. Plaintiff worked full-time and continuously in this position until her termination on or about May 26 or 27, 1998."

While employed as an OA-II, Jenkins consistently received exemplary performance reviews and worked well in excess of the annual 1,000-hour ceiling that County Ordinance 440 placed on temporary employees.³ During her employment at the hospital, Jenkins applied for regular employment seven times. On four of those seven occasions, Jenkins passed the written examination required of all civil service applicants. Each time she passed the exam, she was interviewed for a regular position but not offered one.

On May 26, 1998, Jenkins was summarily terminated. She claims that her termination came less than six hours after she turned in a doctor's report related to a worker's compensation claim that she had initially filed in 1996 and suggests a connection between the two events. Regardless of the reason for her termination, however, the parties do not dispute that it was without cause, without notice, and without a hearing.

In her amended complaint, Jenkins alleged that the County deprived her of her property right in continuing public employment, in violation of 42 U.S.C. § 1983; violated the California Fair Employment and Housing Act, Cal. Gov.Code §§ 12,900 et seq., in terminating her on the basis of her disability; and violated the Meyers-Milias-Brown Act, id. §§ 3500 et seq., by breaching her employment contract.

Reaching only the § 1983 claim,⁴ the district court, upon cross-motions for summary judgment, ruled in the County's favor, finding that Jenkins never acquired the status of a permanent employee, nor was she ever "qualified" for such status. As discussed above, a panel of this court reversed the district court's decision in a memorandum disposition, remanding to allow Jenkins to proceed with discovery and provide evidence in support of her claim that she was, indeed, qualified for a regular position.

On remand, and after discovery, the district court reached the same conclusion again. Relying on California cases described in more detail below, and summarizing the time line of Jenkins' failed attempts to obtain regular employment status, the court held that the only evidence before it "conclusively indicates that Plaintiff was not qualified to obtain a permanent position." The court opined that "the only explanation for [Jenkins'] failure to acquire a permanent position is that she was not selected for a regular position because she did not measure up to the other applicants who were selected," (internal quotation marks omitted). According to the district court, Jenkins' failure to complete two "requirements" — being offered a regular position and completing a fixed probationary period during which she would have been employed "at-will" — was fatal to her claim that she was "qualified" for a regular position. This timely appeal followed.

II. Analysis

The district court's analysis reads "qualified" too narrowly, in light of extant California case law. Jenkins established the facts that she (a) passed the written civil service examination; (b) was interviewed for a regular position, indicating that she scored very high on the examination; (c) took a temporary position; (d) exceeded the limits the Ordinance placed on the number of hours a temporary employee could work; and (e) was reviewed, successfully, as if she were a probationary employee. These factors, taken together, indicate that she was, indeed, "qualified" for regular employment.

The result here is compelled by the California Supreme Court's only pertinent decision, Villain v. Civil Service Commission of San Francisco, 18 Cal.2d 851, 117 P.2d 880 (1941), and by the District Court of Appeal's decision in McGillicuddy v. Civil Service Commission, 133 Cal.App. 782, 24 P.2d 942 (1933).

McGillicuddy concerned trackmen employed by the City and County of San Francisco who brought suit challenging their removal without cause from civil service positions that were designated "temporary appointments." The California Court of Appeal found conclusive "that respondents' names appeared on the eligible list, and that each was appointed therefrom after certification by the commission, and that each had been employed continuously in his position for a long period of time before removal." McGillicuddy, 24 P.2d at 943; see also id. at 943-44 ("As respondents had worked in such positions in excess of the maximum probationary period fixed by the charter, their appointments were to be `deemed complete' within the meaning of the old charter."). The court's decision was based on an earlier — and materially different — version of the San Francisco charter than that at issue in Villain, see 117 P.2d at 883-84 (distinguishing McGillicuddy). Nevertheless, its underlying conclusion is pertinent here:

[T]he commission had no power to adopt a rule whereby positions which were neither temporary in fact nor temporary by the law of their creation could be designated temporary, thereby preventing the eligibles appointed thereto from acquiring permanent tenure after serving through the probationary period.... Under such a rule as interpreted by the commission, the appointing power could absolutely prevent eligibles from acquiring a permanent status merely by following the procedure adopted in the present case. Regardless of the true nature of the position or the length of time the appointee had served, such appointee could be removed at will, according to appellants' theory, without cause and without a hearing merely because he had been appointed to a position designated under the rule as "temporary."

24 P.2d at 944.

Villain did not take issue with this analysis, but instead distinguished McGillicuddy on its facts. At issue in Villain were temporary stenographer positions offered to four individuals by the City and County of San Francisco in 1934. The plaintiffs had taken the written civil service examination, and, out of 225 individuals who passed the written examination, they ranked 177, 191, 202, and 224. At the time, the San Francisco charter required that civil service positions be offered to the highest-scoring person on the list of those who passed the written qualifying examination. See Villain, 117 P.2d at 881. The question before the California Supreme Court was whether the plaintiffs, who were initially hired to temporary positions, had effectively become permanent civil service employees and therefore safe from termination without cause.

The plaintiffs' low ranking on the eligibility exam was central to the Villain court:

Had the positions been classified as permanent, plaintiffs would not have been certified to them, for it is...