Ofsevit v. Trustees of Cal. State University & Colleges

• Decision Date: 01 August 1978
• Docket Number: S.F. 23698
• Citation: 148 Cal.Rptr. 1,21 Cal.3d 763,582 P.2d 88
• Parties: , 582 P.2d 88 Stanley OFSEVIT, Plaintiff and Respondent, v. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES et al., Defendants and Appellants.
• Court: California Supreme Court

Page 1

148 Cal.Rptr. 1

21 Cal.3d 763, 582 P.2d 88

Stanley OFSEVIT, Plaintiff and Respondent, v. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES et al., Defendants and Appellants.

S.F. 23698.

Supreme Court of California, In Bank.

Aug. 1, 1978.

Evelle J. Younger, Atty. Gen., and Stephen J. Egan, Deputy Atty. Gen., for defendants and appellants.

Stewart Weinberg and Van Bourg, Allen, Weinberg & Roger, San Francisco, for plaintiff and respondent.

TOBRINER, Justice.

This case presents two issues: Whether defendant trustees improperly denied plaintiff reappointment to his post as lecturer at a state university; and, if so, the nature of the remedy which will compensate plaintiff for his wrongful termination. The trial court found, inter alia, that in refusing to reappoint plaintiff, the trustees denied plaintiff the benefit of university rules and regulations and violated plaintiff's right to the exercise of his First Amendment rights. Holding that plaintiff had improperly been denied reappointment, the court ordered plaintiff reinstated to his teaching position and awarded him damages in the amount of lost benefits and net loss of pay from the time of the improper denial of reappointment to the date of reinstatement.

On appeal, defendant trustees challenge both the trial court's findings and the court's order as to reinstatement and damages. As we shall explain, however, we have concluded that the trial court's judgment was proper and should be affirmed.

In September 1967 plaintiff Stanley Ofsevit was appointed lecturer in the graduate department of social work education at San Francisco State University ¹ for the academic year 1967-1968. In February 1968 plaintiff's one-year contract was renewed for the academic year 1968-1969. In November 1968 plaintiff was reappointed for the academic year 1969-1970 "based on the salary rank of Associate Professor, Class I, Step 3."

While he was an employee of the university, plaintiff was a member of Local 1352 of the American Federation of Teachers, AFL-CIO and, by his own account, actively participated in that organization's activities. The members of plaintiff's department were apparently deeply divided over the propriety of union representation in the university setting. In April 1969 a special committee of faculty members studying the department of social work education reported that the "breakdown of the usual interpersonal stability and communication" within the department was so acute that continuance of the entire graduate training program was in jeopardy. Subsequently the department director was not reappointed, and in November 1969 Acting Dean Einhorn of the school of behavioral and social sciences informed plaintiff that his "present assignment at San Francisco State (University would) end with the close of the Spring, 1970 semester."

The university later determined to continue the graduate program despite the program's defects, and a new director was appointed. In March 1970, with the concurrence of the new director, the department's hiring, retention and tenure committee recommended that plaintiff be reappointed. On April 7, 1970, however, the acting dean recommended to the vice president of the university that plaintiff not be retained. In May 1970 the hiring committee reaffirmed its recommendation and protested the fact that the acting dean had overridden its recommendation. The vice president of the university did not reappoint plaintiff for 1970-1971.

Pursuant to the "Interim Grievance and Disciplinary Action Procedures" in effect at the time ² plaintiff filed a timely grievance protesting his nonreemployment. Discussions and conciliation efforts followed, but as a result of circumstances not attributable to plaintiff, a formal hearing did not take place until January 17, 1972. In February the grievance committee rendered a decision in favor of plaintiff, and "respectfully and unanimously recommend(ed) that Mr. Ofsevit be reappointed by (the university) immediately." The committee concluded that no evidence supported the administration's decision to deny reappointment to plaintiff. ³

On March 14, 1972, President Hayakawa rejected the grievance committee's results, indicating that, in his opinion, plaintiff's "activities and, hence, his possible contribution to polarization within the department . . . was an element which lessened his overall value to the department." President Hayakawa concluded that "there is no inherent reemployment right prior to tenured status," and that the "only right that inheres in the employment situation of a probationary faculty member is that of insuring that he has been evaluated without bias or capriciousness."

Plaintiff then appealed to Glenn S. Dumke, Chancellor of the California State University and Colleges. ⁴ The chancellor advised him that the Interim Grievance Procedures would govern review of his case, except that under regulations adopted by the board of trustees on September 23, 1970, the decision of the chancellor's review panel would be advisory, rather than "binding on all parties." ⁵

On June 12, 1972, the chancellor's review committee considered the evidence in plaintiff's case and advised the chancellor of its unanimous recommendation in support of plaintiff. The committee noted that plaintiff had suffered "professional damage" which reappointment could repair, ⁶ and recommended that plaintiff be reappointed at a rank consistent with his background and experience. The committee concluded its report by acknowledging its "serious responsibility here, since (section 7.4 of the Interim Procedures) which was in effect at the time this grievance was filed, provides that this Committee's decision 'shall be binding on all parties.' "

On June 16, 1972, the chancellor, purporting to exercise the authority conferred by the trustees' action of September 23, 1970, refused to accept the committee's decision, which he referred to as "findings and recommendations." He concluded that plaintiff, as a lecturer, could not invoke the procedures available to one with "regular full-time probationary class and rank," and found "no basis" to agree with the recommendation that plaintiff be reemployed.

On December 5, 1973, plaintiff filed the present suit against the trustees and chancellor of the California State University and Colleges and against the president of San Francisco State University, seeking reinstatement and damages. Plaintiff contended "that as a matter of law, the grievance procedure, which terminated in his favor, should be enforced," and "that his dismissal was in violation of the First Amendment guarantees of free speech, since . . . his termination was due to his political and personal beliefs."

The trial court found, inter alia, that the trustees had denied plaintiff the "benefits of the rules and regulations in effect at San Francisco State University at the time of (plaintiff's) employment," and that the "termination of Stanley Ofsevit was an expression of official dissatisfaction with Stanley Ofsevit's political alignments as they related to the structure and organization of the Department of Social Work Education and a denial of rights guaranteed under the First Amendment to the United States Constitution." The court thereafter issued a writ of mandate ordering reinstatement and payment of lost salary and benefits "attributable to the period beginning with the 1970-1971 school year through and including the date of (plaintiff's) reinstatement as a Lecturer . . . ; said salary being reduced by the earnings otherwise accrued by (plaintiff) . . .."

Defendant trustees appeal from the trial court judgment. The trustees contend that plaintiff was not entitled to the benefit of the university's grievance procedure; that there is no substantial evidence that the university's failure to reappoint plaintiff was in retaliation for plaintiff's exercise of his First Amendment rights; and that the trial court erred both in ordering plaintiff's reinstatement and in awarding plaintiff more than one year's lost salary. We turn first to the propriety of the trial court's findings with respect to the grievance procedures.

1. The university procedures pursuant to which plaintiff filed his grievance provided in part that the decision of the chancellor's review committee was to be binding on all parties. Because the chancellor improperly refused to adopt the recommendation of the chancellor's review committee that plaintiff be reinstated, plaintiff has wrongfully been denied reappointment.

Plaintiff contends that at the time he filed his grievance, university regulations clearly provided that any decision by the chancellor's review committee would be final and binding on defendant trustees. The trustees argue, however, that because plaintiff had no right to file a grievance, the decision of the review committee lay beyond the committee's jurisdiction and thus did not bind the parties. The trial court in the instant case found that the chancellor's review committee was formed "pursuant to rules and regulations recognized by (plaintiff) and (defendants)," and that the defendants' failure to abide by the review committee's recommendation that plaintiff be reappointed "denied to (plaintiff) the benefits of the rules and regulations in effect at San Francisco State University at the time of (plaintiff's) employment." We agree with the trial court's finding.

On April 17, 1970, pursuant to powers vested in them by statute and regulation, ⁷ defendant trustees promulgated "Interim Grievance and Disciplinary Action Procedures" to apply to grievances initiated after that date. The preamble to the grievance procedures recites in part, "For all matters in which a member of the faculty or administrative staff may believe that an injustice has been done with regard to his rights and privileges, he shall have the prerogative of availing himself of the procedures set forth herein." Defendants contend that...