Kerrigan v. Fair Employment Practice Com.
| Decision Date | 27 March 1979 |
| Citation | 91 Cal.App.3d 43,154 Cal.Rptr. 29 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 20 Fair Empl.Prac.Cas. (BNA) 981, 19 Empl. Prac. Dec. P 9161, 21 Empl. Prac. Dec. P 30,315 Walter F. KERRIGAN, Petitioner and Appellant, v. FAIR EMPLOYMENT PRACTICE COMMISSION, Defendant and Respondent; CITY OF SAN DIEGO, CITY ATTORNEY'S OFFICE, Real Party in Interest and Respondent. Civ. 16344. |
Walter F. Kerrigan, in pro. per.
Evelle J. Younger, Atty. Gen., Sanford N. Gruskin, Chief Asst. Atty. Gen., Warren J. Abbott, Asst. Atty. Gen., and Hadassa K. Gilbert, Deputy Atty. Gen., for defendant and respondent.
John W. Witt, City Atty., and C. M. Fitzpatrick, Senior Chief Deputy City Atty., for real party in interest and respondent.
After practicing law in the Midwest for 20 years, Walter F. Kerrigan moved to California in 1971, passed the attorneys' bar in 1973, and soon thereafter applied for a beginning position in the criminal division of the San Diego City Attorney's office. Of the many applicants interviewed, five young attorneys were hired, but 55-year-old Kerrigan was not. Believing he was rejected as too old for the job, Kerrigan promptly filed a complaint with the California Fair Employment Practices Commission (FEPC) alleging the City Attorney had violated Labor Code section 1420.1, subdivision (a), by denying him employment "solely on the ground of age." The FEPC made an investigation, then filed a formal accusation against the City Attorney, but upon full hearing, denied Kerrigan's claim finding there was no violation of section 1420.1, subdivision (a). Kerrigan next sought a writ of mandate in the superior court to compel the FEPC to set aside its decision. Upon hearing and review of the transcript of the administrative hearing and the exhibits, the court denied Kerrigan relief. The court, in its letter opinion, found the evidence sufficient to support the FEPC decision under Both the substantial evidence and the independent judgment tests. The court however made no written findings of fact. Findings were not required for no request was filed. (Code Civ.Proc., § 632, subd. (1).)
On appeal Kerrigan contends the evidence does not support the findings or the decision under Either test. He maintains the City's own statistics established a prima facie violation of Labor Code section 1420.1, subdivision (a), which the City failed to rebut and that testimony at the hearing disclosed a violation of section 1420, subdivision (e), as well. For the first time on appeal he complains the FEPC violated its own procedural rules by failing to inform him of his right to judicial review.
To say that Kerrigan was qualified for the entry-level position for which he applied is to emphasize the obvious. He holds B.S. and J.D. degrees from the University of Indiana as well as an LL.M. degree, served as a Coast Guard officer during World War II, and for 20 years practiced law in the Chicago area. During this period he represented savings and loan associations and gained experience both in office practice and in court in the fields of real estate, bankruptcy, securities, domestic relations and appeals. He also served as an arbitrator in uninsured motorist matters and had quasi-criminal trial experience in connection with building violations. He has been licensed to practice law in Illinois since 1951 and in Indiana since 1942.
In 1971 Kerrigan moved to California and in 1973 passed the attorneys' bar and was admitted to practice here. Unable to find employment in the area of his experience or in the District Attorney's office, Kerrigan finally applied for one of several openings in the City Attorney's office in August 1973.
The employment brochure he was given set out the organization and operation of the office, explained its intern program and said it was traditional to start all incoming attorneys in the criminal division, which prosecutes only misdemeanors. The starting pay was then $1085 per month for attorneys and $713 per month for senior interns awaiting bar results. According to the brochure, "The San Diego City Attorney's office hires and advances prospective and current attorneys without regard to age, sex, race, religion or national origin." One section named the entire legal staff and gave statistics on their ages, marital status, and educational backgrounds. The statistical section began as follows:
"AGES
-----------
MEDIANS
OFFICE CIVIL DIVISION CRIMINAL DIVISION
------ -------------- -----------------
31 32 29
MEANS
OFFICE CIVIL DIVISION CRIMINAL DIVISION
------ -------------- -----------------
32 35 30"
Not deterred by the brochure, 55-year-old Kerrigan submitted his resume and was interviewed by Deputy City Attorney Shaffran. Kerrigan's background, golf, the weather and the year-round advantages of San Diego were discussed. Shaffran suspected Kerrigan may have come to San Diego to retire and derived the opinion that Kerrigan was not aggressive or dynamic enough to make a good prosecutor; he seemed more interested in other fields of law. Shaffran told Chief Criminal Deputy Swett not to hire Kerrigan.
Swett also interviewed Kerrigan and discussed Kerrigan's previous legal experience and his good health and physical fitness. Swett remarked that years ago they hired a retired Navy officer in Kerrigan's age bracket.
After Swett interviewed at least 30 applicants, 5 ranging in age from 27 to 31 years were hired. Kerrigan was informed of his non-selection by letter from Swett who added:
Thereafter Kerrigan filed a verified complaint with the FEPC alleging the City Attorney had violated Labor Code section 1420.1, subdivision (a), by denying him employment solely because of his age. The FEPC employee (Aranita) after investigation decided there was probable cause for the charge. Swett had told Aranita that Kerrigan's age and attitude might make working with younger attorneys difficult. Moreover the office's recruiting efforts were directed primarily to accredited law schools and that the only older attorneys hired (with one exception) were retired military men who attended law school after retirement.
Further, during the investigation, two openings in the City Attorney's office developed. Swett told Aranita he would not consider Kerrigan while the FEPC complaint was pending.
The complaint was heard before an administrative law judge and three members of the FEPC. An FEPC attorney represented Kerrigan. Swett testified he did not consider Kerrigan unqualified for the job; he considered his age a "plus," but nevertheless considered him to be less qualified than the persons he hired. The five persons hired had been working in the office as interns. Swett testified Kerrigan's age played absolutely no part in his decision not to hire him. He explained the statistics were included in the brochure to give interested persons from out-of-town a picture of the people they would be working with. Deputy Shaffran was 46 years old when hired fresh from law school. Shaffran told Swett not to hire Kerrigan because of his personality.
The opinion adopted by the FEPC included, inter alia, the following findings: It was not established by a preponderance of the evidence that Kerrigan was denied employment solely because of his age or that the City Attorney violated Labor Code section 1420.1, subdivision (a).
The trial court reviewed the administrative record and agreed with the FEPC, finding the FEPC's decision was supported by the weight of the evidence as well as by substantial evidence.
In 1972 the Legislature amended the Fair Employment Practice Act (Lab.Code, § 1410 et seq.) to add section 1420.1 providing in pertinent part:
The new statute took its place beside section 1420 which declared it unlawful employment practice for an employer to discriminate against any person because of his race, religious creed, color, national origin, ancestry, or sex. 1 Section 1412 declared the opportunity to seek, obtain and hold employment without discrimination on the grounds specified in section 1420 to be a civil right, and section 1411 declared the protection of such opportunity to be a matter of public policy. These sections 1411 and 1412 have not been amended to add age discrimination.
Code of Civil Procedure section 1094.5 authorizes the administrative mandamus procedure to obtain judicial review of final adjudication decisions of the FEPC. Where, as here, it is claimed that findings are not supported by the evidence, the statute contemplates that the court will apply either the independent judgment test or the substantial evidence test depending upon the nature of the right in issue. In Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28, 44-45, 112 Cal.Rptr. 805, 816, ...
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