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District Court of Appeal, Second District, Division 1, California.


Civ. 15464.

Decided: May 29, 1947

Jerrell Babb, of Los Angeles, for appellants. Ray L. Chesebro, City Atty., Gilmore Tillman, Chief Asst. City Atty., for Water and Power, Wendell Mackay and A. L. Lawson, Deputy City Attys., all of Los Angeles, for respondents.

Petitioners instituted the instant proceeding in mandamus to compel respondents to reinstate them as field collectors in the Department of Water and Power of the City of Los Angeles, from which positions petitioners allege they were improperly removed upon the unfounded charge that there was lack of work; and for the payment to them of the compensation which they would have received had they not been suspended.

Respondents defended on the grounds, among others, that petitioners were never legally appointed or employed by the Department of Water and Power, because they were not appointed from among those standing highest on the civil service eligible list for field collector, and that even though they were legally appointed, they were laid off in the manner provided by section 125 of the Charter of the City of Los Angeles.

From the judgment of the trial court in favor of respondents which apparently was based upon the two grounds above recited, petitioners have perfected this appeal.

It appears from the record herein that from November 6, 1936, to December 31, 1940, appellants were classified civil service employees of the respondent department; that early in 1936 respondent board of civil service commissioners held an examination for the class of field collector, which petitioners took and passed; that on May 14, 1936, said respondent board established an eligible list of field collectors containing the names of 398 persons who has passed said examination; that of the 398 only three, including appellants, were women. Immediately prior to November 6, 1936, respondent department requested respondent board of civil service commissioners to certify the names of two women from such eligible list of field collectors, and in response thereto said board certified the names of appellants, as being female persons eligible for appointment and assignment in the class of field collector. Pursuant to such certification, appellants were employed on November 6, 1936, by respondent department as field collectors in the commercial division, and were assigned to duty in the special collection unit by the director of the division, where they served until December 31, 1940, when they were laid off upon the alleged ground of lack of work. After their suspension, appellants appealed in writing to the respondent civil service commission under the provisions of section 112(a) of the city charter, and on March 10, 1941, they filed demands with said commission, pursuant to section 112 1/212 of said charter, for reinstatement and for compensation. Said commission heard and considered said appeals and demands from December 13, 1940 (the day upon which notice of suspension was served upon appellants), to about July 7, 1941, when it denied the same, it being alleged in the petition herein that such denial was capricious, arbitrary and unlawful. It is also alleged that since their suspension, appellants' positions have been filled continuously by employees of other and different civil service classes, which allegation is admitted by respondents.

No question has been raised as to the capabilities of appellants, it being conceded by respondents that they were able and efficient employees and ‘were laid off solely for the reason of a lack of work for Field Collectors.’

Appellants urge that certain of the trial court's findings are not supported by the evidence and are against law, to-wit:

No. VIII: ‘* * * It is true that notwithstanding the fact that the petitioner Ruby Carter was member 216 on said eligible list of Field Collectors, and Elizabeth A. Baltes was number 76 on said eligible list, the respondent Board of Civil Service Commissioners purportedly certified the petitioners' names for appointment, out of regular order, as Field Collectors. * * * that thereafter, and on November 6, 1936, the Department of Water and Power purportedly appointed the petitioners under and pursuant to such certifications, to positions in its Commercial Division. * * * that said positions * * * were not positions the duties of which could only be properly, efficiently, reasonably or satisfactorily performed by a female person, but on the contrary * * * could have been performed * * * by either men or women. * * * that the certification of the names of these petitioners, and the said appointment of said petitioners out of regular order was contrary to law in that it violated the provisions of sections 109 and 424 of the Charter of the City of Los Angeles, and section 18 of Article XX of the Constitution of the State of California.’

No. XIII: ‘* * * It is not true that the respondents have unlawfully or arbitrarily refused to permit the petitioners, or either of them, to work in the classified civil service positions as Field Collectors, or in any other position * * * (or) that the respondent Board of Civil Service Commissioners acted capriciously, arbitrarily or unlawfully in sustaining the suspension of petitioners * * * (or) in denying the claims for compensation or for the reinstatement of the petitioners, or either of them.’

No. XIX: ‘It is not true that ever since * * * the 6th day of May, 1937, the petitioners, or either of them, have been and are now permanent classified civil service employees in the Commercial Division of the Department of Water and Power of the City of Los Angeles.’

No. XXVII: ‘* * * It is true that the suspension of such persons, including the petitioners, was made in accordance with their relative seniority, i. e., that the provisions of section 125 of the Charter of the City of Los Angeles governing the order of layoff for lack of work was duly complied with.’

No. XXIX: ‘It is not true that petitioners * * * are entitled to any salary or compensation subsequent to the 31st day of December, 1940 * * *.’

No. XXXI: ‘It is not true that the respondents, or any of them have arbitrarily, unlawfully, or without right, refused to certify to the payroll account of the petitioners, or either of them, or without authority have refused to pay the petitioners * * * salary for the time they have been suspended from the Department of Water and Power.’

No. XXXII: It is not true that it is the mandatory duty of the respondents * * * by provisions of the Charter of the City of Los Angeles, to certify to the payroll account of petitioners * * * or to pay the petitioners * * * any salary for the time they * * * have been suspended from the Department, or to reinstate the petitioners * * * to the respective positions which they occupied on and before December 31, 1940, and from which they were removed on said date.'

Appellants urge that the foregoing findings and the conclusions of law based thereon indicate that the trial court decided against them ‘only on one ground and that ground is in effect, that the appellants were illegally employed in the beginning. * * * All other findings are favorable to appellants.’ Also, ‘that there is no evidence in the record that will support’ such findings.

Respondents argue that the court found against appellants ‘in at least three material respects: First, * * * that the duties of the positions to which appellants were appointed could have been performed by either men or women; Second, * * * that appellants were appointed out of regular order; Third, * * * that even though appellants were legally appointed, their suspensions were made in their relative order of seniority’; that the court concluded from these findings ‘that the appellants were illegally appointed to their positions and * * * were laid off in the manner required by law’, and that there is substantial evidence to support the three findings mentioned.

Section 109 of the City Charter provides that the head of a department in which a position classified by the Board of Civil Service Commissioners is to be filled ‘shall notify said board of that fact, and said board shall certify to such officer the name and address of one or more candidates, not exceeding three, for each position to be filled, who stand highest on the register for the class to which said positions belong, and said appointing officer or department shall fill such places from the names certified to him or it by said board therefor within thirty days from date of said certification. Provided, however, that when two or more positions are to be filled at the same time said board shall not certify to such officer more than two names and addresses above the number of positions to be filled. In making such certifications, sex shall be disregarded, except when statute, the rules of said board, or the appointing power specify sex.’

It is clear from the record herein that the eligible list for the position of field collector which was established by respondent board on May 14, 1936, contained the names of only three women; that prior to November 6, 1936, the then director of the commercial division of the Department of Water and Power requested said board to certify the names of two women for appointment to the positions of field collectors in said division of said department; that the names of the three women appearing on such eligible list were certified by the board to such director and he thereupon selected and appointed appellants, who were assigned to the special collections unit of the commercial division of respondent department.

The certification by respondent board and the selection and appointment of appellants under the facts hereinbefore recited, amounted to a compliance with the provisions of section 109 of the charter, in that the names so certified were the names of ‘women’ candidates who stood highest on the register, and such certification was in response to a request specifying a preference for women, which is directly permitted by section 109, supra.

In the circumstances, the court's finding that the appointment of appellants was out of regular order and contrary to law is not supported by the evidence.

Mr. Homer C. White, director of the Commercial Division of respondent department from December 12, 1936, to April 30, 1945, testified that during the entire period he worked for the department he ‘objected to the idea of women Field Collectors'; that he kept appellants working in the division from the time he came in until December 31, 1940, ‘because there was some question about their classification of field collectors that had never been construed by civil service action * * * I raised the question’; that he was familiar with the duties of field collectors and after he laid appellants off, he placed two girls on their desks, who did and continued to perform the identical work that appellants had been doing, but were persons of different and other classifications than field collectors, to-wit: Grace Sparks, general-clerk-typist, was assigned to appellant Baltes' desk, and Teresa Fowles, a typist, was assigned to appellant Carter's position; that there were no males in the special collection unit doing the same or similar work that appellants were doing; that he had ‘nothing but women’ doing that type of work; that the function of the special collection unit of the commercial division was to enforce the collection of bills; that neither appellant ‘regardless of whether it was her duty to do so or not ever’ refused ‘to do anything she was requested to do’; that his objection to women being employed as field collectors was because of his ‘knowledge of the work a field collector was required to do, such as digging holes in the ground with a pick or with a shovel, and turning off water service connections and with the necessity of going into backyards and going into the rear of houses and turning off electric services, sometimes under duress from the consumers, and also because of the fact on many occasions field collectors were accosted by vicious dogs. And in my opinion I felt that was not the kind of work for a woman field collector, but the work of a man that would have to face such conditions.’ To the question: ‘What were the functions of the commercial division other than to collect bills?’ said witness replied: ‘To read meters, take orders, to turn off and turn on service connections, prepare bills, take application for new connections, obtain cash deposits to cover the payment of bills, and keep a correct account of all records in connection with the preparation of collection of consumer bills for light, water and power.’

Appellant Baltes testified that the special collections unit where she worked ‘took care of all work that went to the field collections, it had to progress through our department before field action could be taken’; that field collections and special collections were coordinating departments dealing in collections. ‘It was all work going to the field collection, must go through the special collections before it was ready to go to the field collections * * * My work was considered the field desk, all closing bills or delinquent bills * * * practically all the work that went to the field men had to go through my desk.’ Similar facts were testified to by the appellant Carter, it being shown that the two field desks were set up in the special collections unit on November 6, 1936, appellants placed at such desks, where they remained on duty until December 31, 1940.

The record in this case clearly shows that appellants held their positions under tenure acquired under the charter of the City of Los Angeles in that each had attained a permanent status and that neither was charged with any misconduct or dereliction of duty, but that for some reason, not disclosed herein, the department head under whose supervision appellants had been employed for several years questioned their classification as field collectors and made some insubstantial changes in the classification of positions in the department in order to justify appellants' suspension. Although the procedure followed was that outlined in section 125 of the charter, the facts and circumstances, upon which the suspension was based, were insufficient to warrant the ousting of appellants and the appointment of other women from lower classifications to perform substantially the same duties. In other words, such suspensions were arbitrary and capricious and amounted to an abuse of discretion.

Respondents raise for the first time upon this appeal, the question of the sufficiency of the petition herein to state a cause of action, it being contended that appellants' failure to allege therein the presentation of ‘demands for reinstatement within 90 days after the date of the civil service commission's order sustaining their layoffs, is a bar to this proceeding.’

Section 112 1/212 of the charter provides: ‘Whenever it is claimed by any person that he has been unlawfully suspended, laid off or discharged, and that such lay-off, suspension or discharge is ineffective for any reason, any claim for compensation must be made and a demand for reinstatement must be presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged. * * * Failure to file such demand for reinstatement within the time herein specified shall be a bar to any action to compel such reinstatement and proof of filing such demand for reinstatement must be completed and proved a condition precedent to the maintenance of any action for reinstatement. * * *’

In the case of Steen v. Board of Civil Service Com'r, 26 Cal.2d 716, 722, 160 P.2d 816, 819, the supreme court held that ‘the demand for reinstatement is from the final action of the board perfecting a final discharge.’ In other words (26 Cal.2d at page 720, 160 P.2d at page 818) ‘the written demand must be filed as required by section 112 1/212 within 90 days after the order of the board sustaining the action of the department.’

The petition herein alleges service upon petitioners of notice of suspension on December 31, 1940; and that said petitioners filed their claims for compensation and demands for reinstatement with the respondent board of civil service commissioners on March 10, 1941, which claims and demands were denied by said board under date of July 7, 1941. It is further alleged that immediately after July 7, 1941, petitioners continued to discuss the matter of their suspension with respondents and threatened to file an action for reinstatement, but that respondents dissuaded them from bringing such action and advised them to make ‘application to the Board of Commissioners of the Department of Water and Power for reinstatement to (their) Civil Service position(s) and to negotiate with the Civil Service Commission’, whereupon petitioners, believing that respondents were acting in good faith in their behalf and also believing that they would be reinstated, ‘did negotiate with said Civil Service Commission and did on or about the 2nd day of October, 1941, file a written application with the Board of Water and Power Commissioners * * * and from that time on up to on or about the 25th day of September, 1942, negotiations continued between petitioner(s) and respondents in reference to (their) reinstatement to (their) position(s) as field collector(s) in the Commercial Division of the Department of Water and Power’; and that despite promises made by respondents ‘that the matter of (their) reinstatement * * * would be regularly brought before respondents for a vote’, the matter was not brought to a vote and that ‘respondents still continue to dissuade’ petitioners from bringing action for reinstatement. The amended answer alleges that after petitioners were suspended they importuned divers members of the Board of Water and Power Commissioners in their individual capacity, and did submit to said Board a document, dated October 2, 1941, which requested said Board to review the suspensions and reinstate petitioners in their former positions; that on Jan. 28, 1942, said Board advised petitioners that proper procedure had been followed in their suspensions and that it could do nothing further in behalf of petitioners and reiterated its position by a letter of similar import dated September 22, 1942.

The court found to be true the matters alleged in the petition and in the amended answer, hereinbefore recited, finding specifically that the petitioners ‘acted in good faith and believing that they, and each of them, would be reinstated, did negotiate with said Civil Service Commission, and did, on the 2nd day of October, 1941, file a written application with the Board of Water and Power Commissioners.’

In view of the alleged activities of respondents in attempting to dissuade appellants from bringing the instant action, as well as advising them to negotiate with the board of civil service commissioners and to make application to the board of commissioners of the department of water and power for reinstatement, which advice appellants followed literally by filing such written application on October 2, 1941 (a date falling within the 90 day period after final action by the respondent board of civil service commissioners), which fact is alleged in the answer and found by the trial court to be true,—respondents are now estopped to urge as a bar to the instant action appellants' noncompliance with the provisions of section 112 1/212, supra, as that section is interpreted by Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 160 P.2d 816.

The evidence adduced at the instant trial is amply sufficient to establish that appellants were regularly appointed to their civil service positions, and that their suspension was arbitrary and capricious and amounted to an abuse of discretion on the part of respondents. As a result, appellants are entitled to reinstatement to their positions as field collectors.

Appellants urge that under section 112(a) of the City Charter, they are entitled to receive compensation from the city ‘the same as if he (they) had not been removed, discharged or suspended by the appointing board or officer.’ In this regard, it appears to be settled that a civil service employee, who has been unlawfully deprived of his position, is entitled to recover the amount of his accrued salary for the period he is prevented from performing his duties, less remuneration he has received from other employment during that period. Stockton v. Department of Employment, 25 Cal.2d 264, 273, 153 P.2d 741; Rexstrew v. City of Huntington Park, 20 Cal.2d 630, 632, 128 P.2d 23.

The judgment appealed from is reversed with directions to the trial court to determine the amount of remuneration received by appellants from other employment since their suspension, and thereupon to issue its writ of mandate requiring the reinstatement of appellants as field collectors with accrued salary from the date of their suspension, less such amounts as were received by them as salary from employment subsequent to their dismissal.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.