Tiernan v. Trustees of Cal. State University & Colleges

• Decision Date: 27 December 1982
• Court: California Supreme Court
• Parties: , 655 P.2d 317, 8 Ed. Law Rep. 496 Terese TIERNAN, Plaintiff and Appellant, v. TRUSTEES OF CALIFORNIA STATE UNIVERSITY AND COLLEGES et al., Defendants and Respondents. L.A. 31532.

Page 115

188 Cal.Rptr. 115

33 Cal.3d 211, 655 P.2d 317, 8 Ed. Law Rep. 496

Terese TIERNAN, Plaintiff and Appellant, v. TRUSTEES OF CALIFORNIA STATE UNIVERSITY AND COLLEGES et al., Defendants and Respondents.

L.A. 31532.

Supreme Court of California.

Dec. 27, 1982.

As Modified on Denial of Rehearing Feb. 10, 1983.

Fisher & Moest, Robert C. Moest, David Grosz, Larry J. Roberts, Barry A. Fisher, William M. Kramer and Richard Goldman, Los Angeles, for plaintiff and appellant.

Lawrence Rosenzweig, Levy & Goldman, Michael R. White, Raymond L. Hansen, Charles R. Gustafson and A. Eugene Huguenin, Jr., Los Angeles, amici curiae, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., and William F. Soo Hoo, Deputy Atty. Gen., for defendants and respondents.

BIRD, Chief Justice.

This case presents two related questions. (1) Are the Trustees of the California State University and Colleges required to adopt regulations concerning the notice to be given temporary academic employees whose appointments are not going to be renewed? (2) If so, does the trustees' failure to adopt such regulations entitle an employee who is not reappointed to reinstatement or back pay?

I.

Plaintiff, Terese Tiernan, is an archivist and was formerly employed in that capacity at California State University, Northridge (University). Defendants are the Trustees of the California State University and Colleges, and the University's president, vice-president, acting director of personnel, director of libraries, and director of the urban archives center. ¹

On November 30, 1978, defendants wrote to plaintiff, offering her an appointment as an archivist at the University's newly created urban archives center (Center). In their letter, defendants explained that the appointment was a temporary one, "for the remainder of the [1978-1979] academic year," but that it could be renewed "at the option of the University, depending upon the status of the ... Center ... and its funding." The letter also stated that the appointment was "subject to the conditions of employment prescribed by the State of California," and set forth in the state Education and Administrative Codes.

Plaintiff replied immediately, accepting the offer and acknowledging its temporary nature. It is undisputed that this was an academic appointment. Plaintiff was given the rank of "lecturer," the title used to designate a "nonpermanent academic assignment." (Cal.Admin.Code, tit. 5, § 42700, subd. (x).)

During the course of the 1978-1979 academic year, the University applied for and was awarded a grant to fund a portion of the Center's activities for a three-year period, beginning in September 1979 and ending in August 1982. The grant proposal named plaintiff as the Center's archivist for each of the three years.

Even before the grant was awarded, the University offered to reappoint plaintiff to the position of archivist for a second year. In her letter of acceptance, plaintiff again acknowledged that the appointment was temporary and noted that it would expire at the end of the 1979-1980 academic year.

In November of 1979, plaintiff was informed that she might not be offered a third appointment. Subsequently, in May of 1980, the director of the Center met with plaintiff and told her that, on his advice, the University had decided not to reappoint her. ² In order to prevent the nonreappointment from appearing on plaintiff's employment record, the director offered to accept her resignation. He told plaintiff that, should she resign, he would give her "the most favorable recommendation possible." He further advised her that if she chose to contest her nonreappointment, he would "defend his decision" and that she could not then be assured of receiving a favorable recommendation.

Plaintiff did not resign. Instead, she filed a written notice of grievance after receiving formal notice of her nonreappointment from the University. By letter dated June 11, 1980, the University acknowledged receipt of the notice, but informed plaintiff that her grievance could not be heard until "after the beginning of the new academic year on August 25, 1980," when the faculty reconvened. Soon thereafter, plaintiff filed a petition for a writ of mandate in the Los Angeles County Superior Court.

Relying on Education Code section 89534, plaintiff argued that defendants were required to adopt and follow regulations prescribing the "form, time, and method" for giving temporary academic employees notice of their nonreappointment. ^{3 3} According to plaintiff, defendants' failure to adopt and follow such regulations rendered her nonreappointment invalid. Plaintiff further asserted that defendants infringed her First Amendment rights by conditioning their offer of a good recommendation on her agreement to resign rather than contest her nonreappointment.

The trial court held that section 89534 applies only to probationary employees "who ha[ve] a reasonable expectation of permanent employment," and not to temporary employees such as plaintiff. The court also rejected plaintiff's First Amendment claim, finding that the University offered plaintiff a good recommendation upon resignation merely as a courtesy and not for purposes of coercing her resignation. Finally, the court declared that plaintiff's failure to exhaust her administrative remedies would bar granting her relief in any event.

Plaintiff appeals. ⁴

II.

At the outset, this court must decide whether plaintiff's action is barred by the doctrine of exhaustion of administrative remedies. ⁵

Executive Order 301 of the Chancellor of the California State University and Colleges (Executive Order) provides a grievance procedure for the resolution of disputes between the University and its academic employees. ⁶ Under that procedure, plaintiff was required to attempt an informal resolution of her grievance and, if that failed, institute formal proceedings. This she did. However, plaintiff failed to pursue her formal grievance beyond the filing stage before seeking relief in the courts. ⁷ Defendants contend that this failure bars consideration of plaintiff's claims.

It is settled that the rule requiring exhaustion of administrative remedies does not apply where an administrative remedy is unavailable (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 829, 140 Cal.Rptr. 442, 567 P.2d 1162) or inadequate (Glendale City Employees' Ass'n, Inc. v. City of Glendale (1975) 15 Cal.3d 328, 342, 124 Cal.Rptr. 513, 540 P.2d 609). Plaintiff contends that her claims fall within this settled exception to the exhaustion doctrine.

With respect to plaintiff's charge that her First Amendment rights were violated, it is evident that her claim falls within the rule requiring exhaustion of administrative remedies, not within the exceptions to the rule. Plaintiff has not demonstrated that the grievance procedure available to her was inadequate to resolve her First Amendment claim either because the grievance committee lacked the power to fashion an appropriate remedy or because this issue was beyond the scope of grievance resolution. Moreover, an independent review of the terms of the Executive Order discloses no reason to believe that the grievance procedure was not adequate to resolve this issue. Accordingly, since plaintiff failed to exhaust her administrative remedies, present consideration of this claim is barred.

It is equally clear, however, that the grievance process was ill-suited to resolve plaintiff's other claims. The rules governing the University's grievance procedure provided no avenue by which plaintiff could have advanced her claim that the trustees had a duty to enact regulations governing notice of nonreappointment for temporary employees. Section 2.13.1 of the Executive Order puts "matters ... which require ... rule formulation and adoption [by] the Board of Trustees" beyond the scope of grievance resolution. ⁸ A parallel provision, section 11.4.3, specifically enjoins a grievance committee from including in its recommended orders "any requirement that changes be made in rules and policies ... of the Board of Trustees." To the extent, therefore, that plaintiff seeks to compel the trustees to adopt regulations governing notice of nonreappointment for temporary employees, her action cannot be held barred by the exhaustion doctrine. ⁹ (Compare Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802 at pp. 828-829, 140 Cal.Rptr. 442, 567 P.2d 1162.)

Similarly, to the extent that plaintiff claims a right to reinstatement or back pay by virtue of the trustees' failure to adopt such regulations, her action is not barred. It is evident that the grievance committee would have been compelled to refuse to recommend reinstatement in these circumstances. First, any such recommendation would include--sub silentio--the forbidden "requirement that changes be made in [trustees'] rules." (Exec.Order, § 11.4.3.) Moreover, it would necessarily and improperly contravene University policy. (Ibid. ["the Committee's recommendation ... shall not be contrary to law, rule or policy ..."].) The doctrine of exhaustion of administrative remedies does not require a litigant to present his or her claim to an administrative body powerless to grant relief.

III.

This court must next decide whether the trustees are required by statute to adopt rules governing notice of nonreappointment for temporary employees. Section 89534, subdivision (a) directs the trustees to adopt rules prescribing the "form, time, and method" of notice of termination or of nonreappointment for certain employees. Rules governing notice of termination must be adopted for "probationary nonacademic employee[s]." Rules governing notice of nonreappointment are required for "academic employee[s] ... not having permanent status." (Emphasis added.) Since neither temporary nor probationary academic employees have "permanent status," the statute's plain language requires...