Thompson v. City of Long Beach

• Decision Date: 07 July 1953
• Citation: 259 P.2d 649,41 Cal.2d 235
• Court: California Supreme Court
• Parties: THOMPSON, v. CITY OF LONG BEACH et al. L. A. 22656.

Page 649

259 P.2d 649

41 Cal.2d 235

THOMPSON, v.CITY OF LONG BEACH et al.

L. A. 22656.

Supreme Court of California, in Bank.

July 7, 1953.

Rehearing Denied July 28, 1953.

Kenneth Sperry, Long Beach, for appellant.

Irving M. Smith, City Atty.Clifford E. Hayes and John R. Nimocks, Dep. City Atty., Long Beach, for respondents.

SPENCE, Justice.

This is an appeal from a judgment in favor of respondents in a mandamus proceeding brought by appellant to compel respondents to permit appellant to resume her duties as a stenographer in the classified civil service of the respondent city, to revoke an order discharging her from the service, and to pay her salary claims.Appellant challenges the sufficiency of the evidence to sustain the trial court's determination that she is not entitled to the relief sought, but she cannot prevail in the light of the record.

Appellant worked for the civil service board as a stenographer from 1929 until August, 1947, when she was granted a leave of absence because of an impairment of her vision.One year later, August, 1948, she was given an indefinite suspension.In March, 1949, she had an operation for the removal of a cataract from her right eye, and thereafter she wore corrective glasses.On September 6, 1949, the board terminated the suspension and ordered her to report for a physical examination as required of all employees by rule of the board following a leave of absence of six months or more.The rule provides that failure to pass the examination shall constitute ground for suspension or dismissal.(Rule V, sec. 13.)The examination was made on September 8, 1949.According to the report of the examining physicians, appellant's general physical condition was normal but because of particular visual defects she was declared 'not employable at present.'On September 15, 1949, the board by resolution approved the medical report and denied appellant re-employment.

On May 15, 1950, a notice of discharge was served on appellant.Following appellant's objection to the sufficiency of the charges and on June 1, 1950, an amended notice was served on appellant and filed with the board (Rule XIV, secs. 2-5) stating: 'That the medical examination given you by the Board of Physicians of the City of Long Beach on the 8th day of September, 1949, establishes that you have contracted a physicial ailment or defect which incapacitates you for the proper performance of the duties of your position, namely, practically no vision in the right eye but this is corrected through use of lenses and no vision in the left eye due to immature cataract * * *; that during a period is excess of two and one-half (2 1/2) years your vision has not been restored to the extent that you are able to perform the duties of Stenographer * * *;' and that within five days she could file an answer with the board.(Rule XIV, sec. 6.)Appellant duly filed an answer denying that she failed to pass a physicial examination based on her ability to perform the duties of a stenographer, and denying that she had contracted any physical ailment or defect.

On June 29, 1950, the board held a hearing at which appellant and her counsel were present, and evidence was taken.Thereafter, by agreement with appellant, an eye specialist was appointed to examine her, and at a second hearing on September 5, 1950, his report and that of an assistant health officer for the city were considered.Neither appellant nor her counsel was present at this latter hearing, which concluded with the board's adoption of a resolution sustaining the charges filed against appellant and removing her from her employment.On January 29, 1951, after the alternative writ of mandamus was issued in this proceeding, the board vacated its order of dismissal of September 5, 1950, and restored the matter to the calendar for further hearing.SeeEnglish v. City of Long Beach, 35 Cal.2d 155, 160, 217 P.2d 22, 18 A.L.R.2d 547.Following notice to appellant and her counsel and two continuances, at which neither appeared, the board on February 28, 1951, again sustained the charges dismissing appellant as a stenographer.

At the trial the record before the board was received in evidence; appellant and other witnesses testified without objection; and pertinent rules of the board as above cited were introduced in evidence.The trial court found that appellant was not, after September 7, 1949, ready, able and willing to perform the duties of a stenographer in the classified service of the city; that she was accorded a full, fair and conplete hearing upon the charges of dismissal; and that there was substantial evidence offered and received to support the findings of the board.These findings are not open to successful challenge by appellant.

Preliminarily, appellant questions the authority of the board to proceed with the hearing because its chairman, rather than the city manager, preferred the charges against her.There is no merit to this objection.Under the city charter, the power to suspend or dismiss a person in the classified civil service appears to be vested in either the heard of the department or the city manager (section 107), and any qualified elector may file written charges.(Section 106, seeStats.1923, p. 1628).

Appellant was not entitled to a trial de novo in the superior court but only to a review of the full proceedings before the local board acting as a quasi-judicial body empowered 'to make final adjudications of fact in connection with matters properly submitted to it.'English v. City of Long Beach, supra, 35 Cal.2d 155, 158, 217 P.2d 22, 24.Upon such review the 'court does not have a right to judge of the intrisic value of evidence nor to weigh it' but its 'power * * * is confined to determining whether there was substantial evidence before the board to support its findings.'Odden v. County Foresters, etc., Board, 108 Cal.App.2d 48, 49, 238 P.2d 23, 24;see, also, Code Civ.Proc. § 1094.5, Subdivision (c);Bank of America Nat. Trust & Savings Ass'n v. Mundo, 37 Cal.2d 1, 5, 229 P.2d 345.No question is raised here as to the validity of the board's rule requiring an employee to take and pass a physical examination before resuming work after an extended absence, and providing that failure to pass the examination shall constitute grounds for suspension or dismissal.English v. City of Long Beach, 77 Cal.App.2d 894, 901, 176 P.2d 940.But appellant does question the evidentiary basis for the board's determination that appellant was not physically qualified to resume her stenographic duties and was so justifiably dismissed from the city's service.

All the doctors who testified or whose reports were read in evidence before the board either in behalf of appellant or respondents were in substantial agreement as to appellant's physical condition and its cause: That following the operation on her right eye for the removal of a cataract, appellant still had a marked visual defect in that eye with correction to near normal vision only through the use of glasses; and that the vision in her left eye was practically nil, permitting only the perception of light, due to an immature cataract.With regard to appellant's right eye, the examining doctors for the city described appellant's vision in relation to the standard eye chart used for testing visual distances 20/400 without glasses, meaning that she could read the largest letter on the chart at a distance of 20 feet instead of the normal 400 feet, and 20/20-3 as corrected with glasses, meaning that in reading the letters on the chart at the standard distance of 20 feet, she missed 3 of the 6 or 7 on the line.

The divergence of opinion in the medical testimony before the board centered on whether appellant's defective vision constituted an ailment which incapacitated her from performing her stenographic duties.Appellant was examined by three doctors on behalf of the city and their report was then reviewed by the city's health officer.With their attention directed to the tasks of a stenographer as commonly understood, all four doctors, who were general practitioners, agreed that appellant's impaired vision precluded her from doing such work satisfactorily and that she was not, in their opinion, an acceptable employee for such rating in the city's service.In testing appellant's visual acuity, they relied principally on her ability to read distance charts accurately and without strain.They particularly noted the difficult adjustments for distance accommodation which would be required of a stenographer having vision in one eye instead of two, with the necessary change of vision from scanning shorthand notes to transcription on the typewriter and the doing of other things involving a shift of vision back and forth, inevitably resulting in general strain.They stated that such situation would be that much more aggravated in appellant's case where there was not only an absence of binocular vision but also a deficiency even in her one good eye.

Appellant cites the opposing medical testimony of eye specialists in her behalf indicating that despite her visual defects, she nevertheless could satisfactorily perform normal stenographic duties.However, this merely created a conflict in the record, and in reviewing the proceedings before the board the court was bound to disregard the evidence contrary to that received in support of the findings of the board.Nider v. City Commission, 36 Cal.App.2d 14, 20, 97 P.2d 293;Nunes v. Board of Civil Service Com'rs, 88 Cal.App.2d 632, 636, 199 P.2d 311;Fickeisen v. Civil Service Comm., 98 Cal.App.2d 419, 421, 220 P.2d 605.Appellant made no objection to the competency of the four doctors who testified at the board proceedings on behalf of the city.Their experience in the medical profession ranged from 12 to 50 years.While they were general practitioners rather than eye specialists, this fact did not affect their competency but only went to the weight to be accorded...