Vittal v. Long Beach Unified Sch. Dist.
| Decision Date | 26 May 1970 |
| Citation | 87 Cal.Rptr. 319,8 Cal.App.3d 112 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Zelda X. VITTAL, Petitioner, Appellant and Respondent, v. LONG BEACH UNIFIED SCHOOL DISTRICT, Defendant, Respondent and Appellant. Civ. 34770. |
Baird, Mooney & Baird and Woodrow W. Baird, Long Beach, for petitioner, appellant and respondent.
John D. Maharg, County Counsel, and Louis S. Gordon, Deputy County Counsel, for defendant, respondent and appellant.
Petitioner is a teacher of English as a Second Language for respondent herein, the Long Beach Unified School District. She has been employed by respondent on an hourly basis since the 1956--1957 school year. On December 1, 1967, she petitioned the superior court for a writ of mandate seeking a judgment requiring that she be classified as a permanent employee of the district retroactively as of the 1959--1960 school year, and awarding her arrearages in salary allegedly due her from 1959 to the present in the approximate amount of.$19,000.
The judgment of the trial court requires the respondent school district to classify petitioner as a 'permanent employee' as of September 1959, but denies her any award for the claimed deficiencies in salary for past years. The judgment further requires respondent to compensate petitioner for the school year 1967--1968 according to the hourly rate as provided in her contract for 21 hours per week with every third month reduced to 16 hours per week and that she be compensated for the 1968--1969 school year in the same classification and at the hourly rate applicable during the school year 1968--1969.
Both sides appeal from the judgment, the petitioner contending that she is entitled to permanent employment on a full time basis with back pay from the school year 1959--1960, while the respondent contends that petitioner is entitled neither to back pay nor to permanent full time tenure classification or at most part time permanent tenure status.
Commencing with the school year 1956--1957, petitioner was employed by the school district to teach English for the foreign born on hourly rate contracts at Long Beach City College, a junior college. She has been employed under similar contracts every year since then, although the name of the course has been changd to English as a Second Language. Her teaching load varied from year to year, both as to the total number of hours and the number of days taught per week. The trial court found as a matter of fact that petitioner taught the number of hours and days each school year as follows:
School Years Days Per Week Hours Per Week
------------ ------------- ---------------
1956-1957 5 17.5
1957-1958 5 17.5 (1st Sem.)
21 (2nd Sem.)
1958-1959 3 21
1959-1960 3 21
1960-1961 4 21 (1st Sem.)
24 (2nd Sem.)
1961-1962 4 24
1962-1963 3 24
1963-1964 3 24
1964-1965 4 24
1965-1966 4 24
1966-1967 3 21
1967-1968 12
In addition to her actual classroom teaching, petitioner testified that she spent considerable time preparing lessons, correcting papers, counseling students, attending staff meetings, serving on committees and performing various other work normally expected of teachers. The tentative assignment forms provided that any hourly teacher assigned six hours or more of classroom teaching might be required to perform such additional duties and it is clear from the testimony of both petitioner and the school officials that she was expected to share in their performance. The trial court found that for all years except 1967--1968 petitioner 'carried and performed a 'teacher load' equivalent to or greater than other permanent employee teachers instructing in the same course * * *.' Respondent does not dispute this finding nor does it contend that petitioner taught less than 75 per cent of the total hours of a permanent teacher in any year except 1967--1968.
A teacher of English as a Second Language must have proper certification qualifications and petitioner at all times had these qualifications by virtue of her possessing a general secondary teaching credential.
Petitioner requested 'contract' or 'permanent' status as early as 1959. She testified that in 1959, Assistant Dean Pavich told her that her request for permanent status had been denied and that she could 'take it higher' but 'that I would probably be committing professional suicide.' Nevertheless, she pursued the matter again in the years 1960, 1961 and 1962 with Assistant Dean Ringwald. She testified that Mr. Ringwald suggested that she discuss it with the head dean, Mr. Cook, which she did, but to no avail. In the years 1963 through 1967, petitioner went to the president of the college, Dr. Garner, but was unable to convince him that she was entitled to permanent status. Finally, petitioner referred her problem to the teachers' association and one of its officals contacted the school district about petitioner's request for permanent status.
In the spring of 1967, petitioner received a written notice informing her that she was scheduled to teach 21 hours per week in the fall with a reduction to 16 hours every third month. Subsequent to this time, in July of 1967, petitioner asked the teachers' association to assist her. On the opening day of classes in September 1967, she was notified by a telephone call from the Assistant Dean of Instruction that her teaching load had been reduced to 12 hours per week, with only 8 hours per week every third month.
Petitioner contends that the action of the school district was arbitrary and intended to punish her for asserting her claim to permanent status. The school district denies such motivation. Dr. Garner testified that the hours in her tentative assignment were reduced because he wanted to spread the work among the other hourly teachers, some of whom had training in linguistics which petitioner did not have.
The finding of the trial court on this point was that 'the reduction in plaintiff's teaching hours * * * was without justification, capricious, and knowingly calculated to prejudice plaintiff's position as a permanent employee.'
Plaintiff Is Entitled To Classification As A Permanent Employee.
The main issue in this case is whether or not petitioner is entitled to status as a permanent teacher. The provisions for permanent status are contained in the Education Code and if they have been met the attainment of permanent status is automatic. No application need be made, nor is any affirmative action on the part of the school board necessary (43 Cal.Jur.2d Rev., Schools, § 461, p. 847). Thus, whether petitioner sufficiently exhausted her administrative remedies is not in issue. If she has met the requirements, she is entitled to permanent status.
The governing statute is Education Code section 13304 which reads: 'Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is re-elected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.'
It is conceded by respondent that all statutory provisions have been fulfilled except the requirement of 'three Complete consecutive school years.' The meaning of the phrase 'complete school year' is spelled out in Education Code section 13328. The first sentence of that section reads: 'A probationary employee who, in any one school year, has served for at least 75 percent of the number of days the regular schools of the district in which he is employed are maintained shall be deemed to have served a complete school year.'
Respondent argues that the requirements of these two sections have not been met since petitioner cannot point to any three consecutive years in which she taught 75 per cent of the school days. For instance, in 1960--1961 and 1961--1962 she had classes scheduled on four out of the five school days and thus taught 80 per cent of the days in that year. But in each of the years immediately prior and subsequent to those two years, she only taught three out of the five days or 60 per cent of the total number of days.
Petitioner advances a more liberal construction of the law arguing that the statute does not require that a teacher 'hold classes' or 'teach' 75 per cent of the time but only that she 'serve' 75 per cent of the time. And she contends that she has 'served' more than 75 per cent of the time for many years since during all years except 1967--1968 she has carried a full teaching load and has worked as many hours as permanent teachers assigned to the same course.
We regard this as a case of first impression. We hold that under the facts of this case petitioner has served in excess of 75 per cent of the school days for three consecutive years and thus is entitled to permanent classification under sections 13304 and 13328 of the Education Code.
The trial court found that petitioner carried a 'teacher load' equivalent to or greater than other permanent employee teachers instructing in the same course. It is not within our province to reweigh the evidence. Certainly there was sufficient evidence produced at the trial to support this finding.
Thus, the determinative question is resolved to this: Where a teacher has taught more than 75 per cent of the Hours of a full time teacher, but has not taught 75 per cent of the Days of the school year, should section 13328 of the Education Code be narrowly construed to deny her permanent status? We...
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