Womack v. San Fran. Community College Dist.

• Decision Date: 24 January 2007
• Docket Number: No. A112564.,A112564.
• Citation: Womack v. San Fran. Community College Dist., 54 Cal.Rptr.3d 558, 147 Cal.App.4th 854 (Cal. App. 2007)
• Court: California Court of Appeals
• Parties: Christopher WOMACK, Petitioner and Appellant, v. SAN FRANCISCO COMMUNITY COLLEGE DISTRICT et al., Respondents.

54 Cal.Rptr.3d 558

147 Cal.App.4th 854

Christopher WOMACK, Petitioner and Appellant, v.SAN FRANCISCO COMMUNITY COLLEGE DISTRICT et al., Respondents.

No. A112564.

Court of Appeal, First District, Division 2.

January 24, 2007.

Dean Eugene Royer, Oakland, CA, for Petitioner and Appellant.

C. Christine Maloney, Renne Sloan Holtzman & Sakai LLP, San Francisco, CA, for Respondents.

HAERLE, J.

I.INTRODUCTION

Appellant appeals from the trial court's denial of his petition for a writ of mandate brought pursuant to Code of Civil Procedure section 1085.By that petition, he sought to compel respondents to reinstate him as a regular employee in the respondent District's (hereafter District) English as a Second Language (ESL) Department on the basis that the prior level of his work in that department had altered his status from that of a "temporary employee" to one of a "contract employee" who could not be terminated in the manner or time frame he was in 2001.The trial court denied the motion on two grounds: (1) under the applicable statutes, appellant's status had not, in fact, changed and he was thus still a temporary employee as of the date of his termination; and (2) laches.We agree with the trial court on both grounds and hence affirm.

II.FACTUAL AND PROCEDURAL BACKGROUND

Womack was hired by the District as a temporary instructor of ESL in the fall of 1987; at that time the ESL subject was taught within the English Department of the college; it became a separate and distinct department in 1990.He continued to be employed in that capacity for each subsequent semester through the spring semester of 2001.

Although starting out with less classtime, by 1993, Womack commenced carrying a total of nine hours, or 10.5 units, per semester; these were composed of two three-hour or 3.75-unit composition courses and one three-hour and three-unit non-composition course.¹These were the schedule and type of classes Womack requested of the District; there is no record of his having requested either a higher status as an employee, e.g., contract status or tenured status, or more units of teaching.

Starting in about 1997, Womack began keeping office hours.Starting in 1999, after the enactment of Education Code section 87884, subdivision (b),² Womack accepted the prescribed hourly rate of pay for those hours.

Womack was given periodic performance reviews; those involved both self-evaluation and evaluation by two full-time faculty members following their observation of Womack's classes.In the spring of 2000, he received the first of several unsatisfactory performance evaluations.Nonetheless, Womack was retained into the fall semester of 2000, but he received additional unsatisfactory ratings for both that and the succeeding, i.e., spring of 2001, semesters.The evaluators observed that Womack had "made very little effort to act on [their prior] suggestions" for improvement.

Based on these three successive unsatisfactory ratings, the District chose not to continue to employ Womack.He was given notice in March 2001 that he would not be employed for the summer 2001 semester and the same notice in May 2001 regarding the fall 2001 semester.

Womack filed a grievance challenging this last review and the consequent decision regarding the fall semester non-rehire on May 30, 2001.The District denied the grievance on July 16,2001.

Womack filed his petition for a writ of mandate on May 13, 2002.In it, he alleged that he had obtained a higher status of employment by the District, i.e., probationary status, as early as the 1995-1996 academic year.He contended that this was so because he worked more than 60 percent of a full-time work assignment for two consecutive semesters and, that being the case, had effectively become a contract employee.He further alleged that, because he continued working at that level for several additional academic years, he became a tenured instructor by operation of law at the start of the 1998-1999 academic year.On this basis, his petition asked that he be reinstated with back pay, costs, and attorney fees.

Over three year's later, on July 21, 2005, Womack moved for a hearing on his petition.On September 8, 2005, such a hearing was held.On September 27, 2005, the court issued an order denying the petition.The order stated that, first, Womack's delay in both initiating his claim of permanent employment and then bringing his petition on for hearing constituted laches which had prejudiced respondents and hence barred relief.Second, the court ruled that Womack had not established that he worked in excess of 60 percent of a full-time instructor's work hours pursuant to the applicable Education Codesections.

Womack filed a timely notice of appeal on November 23,2005.

III.DISCUSSION

A.Standards of Review

There are several different standards of review applicable to the issues before us.In the first place, the interpretation of provisions of the Education Code and the review of a denial, based on that interpretation, of a petition for a writ of mandate under section 1085, is subject to de novo review by this court.(See, e.g., Gilbert v. City of Sunnyvale(2005)130 Cal.App.4th 1264, 1275, 31 Cal.Rptr.3d 297;Upland Police Officers Assn v. City of Upland(2003)111 Cal.App.4th 1294, 1301, 4 Cal. Rptr.3d 629.)

To the extent, however, that the appeal challenges findings of fact made by the trial court in the course of its denial of such a petition, we review such findings under the substantial evidence standard.(See, e.g., American Federation of State, County & Municipal Employees v. Metropolitan Water Dist.(2005)126 Cal.App.4th 247,261,24 Cal.Rptr.3d 285;Kreeft v. City of Oakland(1998)68 Cal.App.4th 46, 53, 80 Cal.Rptr.2d 137.)

Regarding laches, also relied on by the trial court as a basis for denying the petition, the law regarding our standard of review is a bit more complex.In some cases, it has been held to be abuse of discretion (e.g., In re Marriage of Plescia(1997)59 Cal.App.4th 252, 256, 69 Cal. Rptr.2d 120;In re Marriage of Copeman(2001)90 Cal.App.4th 324, 333, 108 Cal. Rptr.2d 801), but not in all.As our colleagues in the Sixth District wrote in Bono v. Clark(2002)103 Cal.App.4th 1409, 1417, 128 Cal.Rptr.2d 31: "As the California Supreme Court recently recognized, there are circumstances in which it is error to review a laches determination `under the deferential abuse of discretion standard.'[Citation.][¶]`Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained.[Citations.]'[Citation.]In other words, appellate courts review such determinations for `manifest injustice' or for `lack of substantial ... evidence.'[Citation.][¶] In cases such as this, where the finding of laches is made after trial, the proper appellate focus is the evidence in support of the finding.Even the ... appellate decisions ... which employ the deferential abuse of discretion standard, do not disregard the evidence.[Citations.]As the California Supreme Court recently explained: `Generally, a trial court's laches ruling will be sustained on appeal if there is substantial evidence to support the ruling.'[Citations.]We therefore examine the trial record for evidence in support of the trial court's finding of laches."

We will do the same regarding the laches issue here.

B.Appellant's Work Hours did not Change His Status as a Temporary Employee

The principal statute controlling whether appellant was still a "temporary employee" when he was terminated—although, as we shall see, far from the only one—is section 87482.5, which provides: "(a) Notwithstanding any other provision of law, any person who is employed to teach adult or community college classes for not more than 60 percent of the hours per week considered a full-time assignment for regular employees having comparable duties shall be classified as a temporary employee, and shall not become a contract employee under Section 87604.[¶](b) Service as a substitute on a day-to-day basis by persons employed under this section shall not be used for purposes of calculating eligibility for contract or regular status.[¶](c)(1) Service in professional ancillary activities by persons employed under this section, including, but not necessarily limited to, governance, staff development, grant writing, and advising student organizations, shall not be used for purposes of calculating eligibility for contract or regular status unless otherwise provided for in a collective bargaining agreement applicable to a person employed under this section.[¶](2)This subdivision may not be construed to affect the requirements of subdivision (d) of Section 84362."(§ 87482.5.)

In the trial court, appellant presented two apparently alternative arguments.On the one hand, he contended that once he was assigned to teach nine hours, or 10.5 units, per week starting in 1993, and inasmuch as 15 hours per week was considered the equivalent of a rail-time teaching assignment, he had long-since met the 60 percent level and had thus essentially "graduated" from temporary employee status to something higher, i.e., contract employee status.He also argued that his assumption of "several office hours per week" should be taken into account in computing his workload and that, via that alternative methodology, he also exceeded the 60 percent level.

On appeal, appellant has abandoned the second argument and now contends only that his nine hours, or 10.5 units, constituted more than the full-time equivalent which, he maintains, is 15 hours per week and that his 10.5 units (or even, for that matter, his nine classroom hours, i.e., without the 1.25 multiplier) equals if not exceeds the required 60 percent level.

Respondent contends that (1) in no...