Mendoza v. Regents of University of California

• Decision Date: 02 March 1978
• Citation: 78 Cal.App.3d 168,144 Cal.Rptr. 117
• Court: California Court of Appeals Court of Appeals
• Parties: Frances MENDOZA, Plaintiff and Respondent, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Appellants. Civ. 41341.

Page 117

144 Cal.Rptr. 117

78 Cal.App.3d 168

Frances MENDOZA, Plaintiff and Respondent, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Appellants.

Civ. 41341.

Court of Appeal, First District, Division 2, California.

March 2, 1978.

Hearing Denied April 27, 1978.

Donald L. Reidhaar, Milton H. Gordon, Aletha R. Titmus, Berkeley, for appellants.

Loren E. McMaster, California State Employees' Ass'n, Sacramento, for respondent.

Andrew Thomas Sinclair Jr., Oakland, for amicus curiae Scientists and Engineers Legal Defense Fund.

KANE, Associate Justice.

This is an appeal from the trial court's judgment granting respondent's petition for a peremptory writ of mandate. The background facts may be summarized as follows:

Respondent, Frances Mendoza, was an employee of the University of California (University) at the San Francisco Medical Center. From October 1, 1969 to October 21, 1974, she held a clerical position in the medical records department. On the latter date she was promoted to the position of Hospital Pharmacist Assistant I. At all times she was a full-time career employee employed for an indefinite term.

Respondent encountered difficulties in her new position. First, she was warned of her work performance, including a written warning dated March 12, 1975. When her work failed to improve, respondent was dismissed by the University on the ground that she failed "to maintain appropriate work performance standards."

From the notice of dismissal which was dated June 13, 1975, and took effect June 30, 1975, respondent initiated a grievance procedure accorded by the Staff Personnel Policy of the University (hereafter Rules). Pursuant to the Rules, respondent was given a full-fledged post-termination hearing on November 4, 1975. After receiving and evaluating the evidence, the University hearing officer recommended to appellant Chancellor Sooy that respondent's dismissal be sustained. On November 25, 1975, respondent was notified that Chancellor Sooy had approved the recommendation of the hearing officer. Respondent appealed from the decision of the chancellor to University President Saxon. On February 12, 1976, President Saxon denied respondent's request for a review and the dismissal thereby became final.

Thereafter, respondent filed a petition for a writ of mandate, praying for back pay from the time of dismissal to the time of final decision. The trial court ruled that because the minimal due process safeguards mandated by law had not been afforded petitioner prior to the University's action in dismissing her, she was entitled to her salary from July 1, 1975 (the date of her termination) to February 12, 1976 (the date of the final decision denying her appeal from the order of dismissal).

As the parties concede, the central issue on appeal is whether respondent was entitled, prior to her dismissal, to the minimum procedural safeguards enunciated in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774.

In Skelly, our Supreme Court was called upon to decide the constitutionality of the disciplinary and punitive provisions of the California Civil Service Act (Act) (Gov.Code, ¹ § 18000, et seq.). Under the Act, a permanent civil service employee could be dismissed by a simple notification without according him any meaningful preremoval procedural safeguards (§ 19574). The Supreme Court pointed out that since a permanent civil service employee may be dismissed under the statute only for cause (§ 19500), he has a property right in his continued employment and may be deprived thereof only if, prior to his dismissal, certain procedural safeguards are observed. As the court underlined, "As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 215, 124 Cal.Rptr. at p. 28, 539 P.2d at p. 788.) Because of the apparent failure to accord the employee any procedural protections to "minimize the risk of error in the initial removal decision" (Arnett v. Kennedy (1974) 416 U.S. 134, 170, 94 S.Ct. 1633, 1652, 40 L.Ed.2d 15), the provisions of the Act were held violative of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the California Constitution (Skelly v. State Personnel Bd., supra, at p. 215, 124 Cal.Rptr. 14, 539 P.2d 774).

A simple reading of the Rules at bench convinces us that they suffer from almost identical constitutional infirmities as the provisions of the Civil Service Act challenged in Skelly. Thus, it appears that although pursuant to the Rules a permanent, career employee may be dismissed only for cause (Rules, 740.1; see discussion infra), there is no provision that such employee be given a copy of the charges and materials upon which the disciplinary action is based or be accorded the right to respond to the charges either orally or in writing prior to his removal (Rules, 740.2, 740.3, 740.4); ² and, as the parties agree, respondent was not granted these rights either. All that is secured to the employee is a post-termination hearing and the potential remedy of reinstatement and compensation for lost wages if after the post-termination hearing the initial discharge is found to have been unjustified or wrongful (cf. Rules, 280.7(h)).

Thus, for all intents and purposes, the case at bench falls within the rationale and holding of Skelly. It follows that, due to the lack of minimum preremoval safeguards, respondent's dismissal prior to the final decision of February 12, 1976, must be deemed null and void. Since this constitutional infirmity is not corrected until the employee has been given the opportunity to present his arguments to the authority initially imposing the discipline, as a measure of damages the employee is entitled to back pay accrued between the date of discharge and the final decision of the authority (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 403, 134 Cal.Rptr. 206, 556 P.2d 306).

Appellants nonetheless insist that Skelly should be held inapplicable in the instant case. In essence, appellants argue: that Skelly addressed and determined only the narrow issue of the constitutionality of the Civil Service Act, hence its holding should be limited to permanent civil service employees serving under that Act; that non-academic University workers employed for an indefinite term belong to an entirely different category; that these employees, unlike tenured faculty members who may be terminated only for cause (Rules, 103.3, 103.9), serve at the will of the employer and therefore do not possess any property interest in their continued employment (Arnett v. Kennedy, supra, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann (1972) 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570). Thus, appellants conclude that such employees may be dismissed without cause and without due process safeguards in the absence of alleged First Amendment violations (Bishop v. Wood (1976) 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684; Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 97 Cal.Rptr. 657, 489 P.2d 537; Arroyo v. Regents of University of California (1975) 48 Cal.App.3d 793, 121 Cal.Rptr. 918; California State Employees' Assn. v. Flournoy (1973) 32 Cal.App.3d 219, 108 Cal.Rptr. 251; Ishimatsu v. Regents of University of California (1968) 266 Cal.App.2d 854, 72 Cal.Rptr. 756). Appellants' contentions are predicated on an obvious misconception of law.

At the very outset, we emphasize that the crucial determination whether an employee should be accorded the minimum due process safeguards prior to discharge ought not, and does not, turn on the eventuality that he is employed in the civil service system or works for an educational institution and/or on the fortuitous circumstance that the educational institution has a tenure system whereby a certain class of employees enjoys special rights and privileges separate and distinct from the other classes of employees. The overriding consideration rather is whether the employee has a constitutionally protected property interest in his continued employment.

As appellants concede, in order to resolve this crucial issue, we must look to the nature of the interest at stake and pay special attention to the rules and the tacit understandings of the parties. Indeed, as the cases point out, property interests which are subject to procedural safeguards are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules and understandings that stem from an independent source such as state law, rules or understandings that secure certain benefits and which support claims of entitlement to those benefits (Board of Regents v. Roth, supra, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548; Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 207, 124 Cal.Rptr. 14, 539 P.2d 774; Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444, 452, 129 Cal.Rptr. 216). As the United States Supreme Court put it, " 'property' interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, 'property' denotes a broad range of interests that are secured by 'existing rules or understandings.' (Citations.) A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit . . .." (Perry v. Sindermann, supra, 408 U.S. at p. 601, 92 S.Ct. at p. 2699; emphasis added.)

When examined in light of the foregoing principles, the Rules adopted by the University...