WILLIAMS v. COUNTY OF LOS ANGELES 20 (1978)

Court of Appeal, Second District, Division 5, California.

Bennie C. WILLIAMS, Plaintiff and Appellant, v. The COUNTY OF LOS ANGELES, Emmet Sullivan, Ernest Sanchez, Louise Frankel, Gordon Nesvig, Alvin Smith, and E. N. Patterson, and Does 1 through 20, inclusive, Defendants and Respondents.

Civ. No. 51201.

Decided: February 24, 1978

Bennett B. Cohon and Steven H. Gardner, Los Angeles, for plaintiff and appellant. John H. Larson, County Counsel, and Halvor S. Melom, Deputy County Counsel, Los Angeles, for defendants and respondents.

This is a suit by a former employee of the County of Los Angeles for “breach of an employment contract” and for a declaration that certain rules of the Los Angeles County Civil Service Commission are unconstitutional. Plaintiff appeals from an order of dismissal entered after defendants' demurrer to the complaint was sustained. (Code Civ.Proc., ss 581, subd. 3; 581d.)

Under rules relating to “recurrent” (seasonal) employees, plaintiff was hired for the summer season of 1975 to manage the Val Verde Park pool, commencing on or about June 16, 1975. On June 13 and 14, 1975, defendants informed plaintiff that the opening of the pool would be delayed indefinitely and that plaintiff would have to wait until the pool was ready to open. Plaintiff nevertheless reported for work at the pool each weekday between June 16 and June 30 and turned in a timecard for 88 hours of work. On July 1 defendants told plaintiff to fill out a timecard showing only 40 hours' work, and plaintiff refused. Plaintiff received an “unsatisfactory” performance evaluation rating, and was discharged on July 1.

Plaintiff alleged (1) that his discharge was without “just cause” and that therefore he was entitled to damages and (2) that rules of the Los Angeles County Civil Service Commission (hereinafter Rules) permitting the release of a “recurrent” (seasonal) employee who receives an unsatisfactory performance evaluation deny the employee due process of law by failing adequately to define “unsatisfactory” and by failing to provide the employee a trial-type evidentiary hearing. We find the trial court properly concluded that these allegations are without merit as a matter of law and properly sustained the demurrer to the complaint.

Plaintiff does not contend that the Rules relating to seasonal employees were violated.¹ He contends instead that such employees should be treated the same as permanent civil service employees who are protected against discharge without cause and who are entitled by due process to certain procedural safeguards prior to discharge and to a full trial-type hearing after discharge. This attempted analogy to permanent civil service employees is not supported by the statutory scheme.

Pursuant to article IX, section 34 of the Los Angeles County Charter, the Los Angeles County Civil Service Commission has prescribed Rules governing employment practices which have the force and effect of law. Rule 2.38 defines “Recurrent” as “employment at certain recurring periods, such as monthly, quarterly, annually, or bi-annually. ‘Seasonal’ and ‘Recurrent’ are synonymous.” A person may be employed in a recurrent position only for the duration of the recurrent work, and may be retained in one class of position for no longer than 12 months of continuous service in the same department. (Rule 15.07.) A recurrent reemployment list is maintained, with names grouped according to their last performance rating as follows: First, all employees having ratings of “Outstanding”; second, all employees having ratings of “Competent”; and third, all employees having ratings of “Improvement Needed.” Employees having ratings of “Unsatisfactory” are omitted from the list. When a recurrent appointment is to be made, the appointing power at his discretion may appoint any one of those persons whose names appear in the highest group on the recurrent reemployment list who is available and willing to serve. Each group shall be exhausted before appointments are made from the next lower group. (Rules 15.01, 15.02.)

“When recurrent employees are to be released the release shall be in accordance with the needs of the service, in the order determined by the appointing power.” (Rule 15.04.)

“A recurrent employee whose services have not been satisfactory may be released after service on him of a copy of his performance evaluation report showing such unsatisfactory service.” (Rule 15.05.) The consent of the commission is not needed to the discharge or reduction of a temporary or recurrent employee. (Rule 19.09.) An employee may review his rating at any time with any of the persons who have signed the report or who have assisted in making the rating. (Rule 21.07.) A revised rating may be submitted by the appointing power at any time upon evidence of changed work habits or performance on the part of an employee. (Rule 21.02.)

Whereas permanent employees are “discharged,” which is defined as separation from service “for cause” (Rule 2.15), recurrent employees are “released” if their “services have not been satisfactory” (Rule 15.05) or are released “in accordance with the needs of the service, in the order determined by the appointing power.” (Rule 15.04.) Thus it is apparent from the statutory scheme that recurrent employees were never intended to have the tenure or job security granted to permanent civil service employees, or even the more limited protections granted to probationary employees (compare Rules 13.01, 19.07, and 19.09 regarding probationary employees). The nature of the recurrent employee's interest in his job must be determined by the local law creating it. (Board of Regents v. Roth, 408 U.S. 564, 577-578, 92 S.Ct. 2701, 33 L.Ed.2d 548; Bishop v. Wood, 426 U.S. 341, 344-346, 96 S.Ct. 2074, 48 L.Ed.2d 684; Skelly v. State Personnel Bd., 15 Cal.3d 194, 212, 124 Cal.Rptr. 14, 539 P.2d 774.) As analysis of the cases cited by plaintiff demonstrates, the interest of a seasonal employee such as plaintiff in his job is not the type of interest which invokes constitutional requirements for a hearing or preremoval safeguards.

DISCHARGE

We first consider whether plaintiff stated a cause of action for what he called “breach of contract,” assuming for purposes of ruling on demurrer that he was discharged “without just cause.” The terms and conditions of public employment are governed by statute or ordinance, not by contractual standards. (Markman v. County of Los Angeles, 35 Cal.App.3d 132, 134, 110 Cal.Rptr. 610; Fugitt v. City of Placentia, 70 Cal.App.3d 868, 871, 139 Cal.Rptr. 123.)

As pointed out above, the Rules relating to seasonal employees such as plaintiff do not create a civil service type system permitting discharge only for cause. Instead, seasonal employees may be “released” “in accordance with the needs of the service, in the order determined by the appointing power.” Seasonal employees are not granted even the more limited protections accorded to probationary employees.

In other words, according to the Rules, plaintiff served at the pleasure of the appointing power. (See Bogacki v. Board of Supervisors, 5 Cal.3d 771, 782-783, 97 Cal.Rptr. 657, 489 P.2d 537.) “A public employee serving at the pleasure of the appointing authority whether he be a ‘permanent’ employee in a non-civil-service county as in this case, a ‘provisional’ employee in a civil service county, or any other kind of public employee serving on this basis is by the terms of his employment subject to removal without judicially cognizable good cause. ‘Unquestionably, a broad discretion reposes in governmental agencies to determine which (such) employees they will retain. Considerations of comity and administrative efficiency counsel the courts to refrain from any attempt to substitute their own judgment for that of the responsible officials.’ Only when such a public employee can show that his employment has been unjustifiably conditioned on the waiver of his constitutional rights will the courts intervene and give relief.” (Bogacki v. Board of Supervisors, supra at p. 783, 97 Cal.Rptr. at p. 665, 489 P.2d at p. 545; citations omitted; brackets theirs.)

As recently stated in Fugitt v. City of Placentia, supra, 70 Cal.App.3d 868, 874, 139 Cal.Rptr. 123, 128, “Although the statutes and rules are not uniform with respect to probationary periods, the cases uniformly hold that the rules which limit removal of civil service employees under prescribed conditions are inapplicable to probationers, and that until probationary appointees have completed the probationary period they may be summarily discharged.”

Plaintiff points out that seasonal employees who are rated higher than “unsatisfactory” are entitled to be listed on the reemployment list. (Rule 15.01.) But that Rule does not create a de facto system of tenure. The employees are grouped according to their ratings, “outstanding,” “competent,” or “improvement needed.” The Rule specifically provides that the appointing power “at his discretion, may appoint any one of those persons whose names appear in the highest group.”

We conclude that regardless of the alleged lack of just cause for plaintiff's discharge, no cause of action was stated.²

PREREMOVAL AND POSTREMOVAL PROCEDURAL SAFEGUARDS

Plaintiff argues that the Rules unconstitutionally deny due process to seasonal employees by permitting discharge without a trial-type hearing, either before or after discharge. This contention is without merit. Plaintiff did not have in this job the type of property interest which invokes constitutional procedural safeguards for plaintiff's release. (Board of Regents v. Roth, supra, 408 U.S. 564, 569-572, 577-578, 92 S.Ct. 2701, 33 L.Ed.2d 548; Bishop v. Wood, supra, 426 U.S. 341, 344-347, 96 S.Ct. 2074, 48 L.Ed.2d 684.) In Bishop v. Wood, supra, a policeman was discharged without a hearing. The city's ordinance had been authoritatively construed to provide employment at the will and pleasure of the employer, not a civil service type system. The court held that under this interpretation the policeman did not have a property interest in his job which constitutionally entitled him to a hearing. Plaintiff's seasonal job here involved even lesser interests.

Plaintiff misplaces reliance on cases involving permanent civil service employees. (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 197 & fn. 3, 124 Cal.Rptr. 14, 539 P.2d 774 (permanent state civil service employee); Perry v. Sindermann, 408 U.S. 593, 594, 600, 92 S.Ct. 2694, 33 L.Ed.2d 570 (college teacher employed for 10 years in college system which had a de facto tenure program); Arnett v. Kennedy, 416 U.S. 134, 136-137, 94 S.Ct. 1633, 40 L.Ed.2d 15 (nonprobationary federal employee in the competitive civil service).) These cases are inapplicable to a job like plaintiff's.

In Board of Regents v. Roth, supra, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548, the court considered whether, aside from a “property” interest in a job, the employee might also have a “liberty” interest which constitutionally required procedural safeguards. The court indicated that such an interest might require a hearing if, in the course of discharging the employee, the employer had made a charge which might seriously damage the employee's good name, reputation, honor, or integrity, or had imposed on the employee a stigma or disability which foreclosed his freedom to take advantage of other employment opportunities. The court made clear, however, that “(m) ere proof . . . that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ ” (Id., at p. 574, fn. 13, 92 S.Ct. at p. 2708.) In Bishop v. Wood, supra, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684, the court reiterated that it would be stretching the concept too far to suggest that an employee is deprived of liberty when he is simply discharged or not rehired in one job but remains as free as before to seek another.

While plaintiff is obviously unhappy at having been rated “Unsatisfactory,” there is no indication whatsoever that the county made charges which seriously damage his reputation or that the county has in any way foreclosed other employment opportunities. To convert the simple firing of a nontenured seasonal employee into a matter requiring a hearing would be stretching the due process concept of liberty too far.

Thus the trial court correctly concluded that plaintiff's interest in his seasonal job did not require the procedural protections accorded to permanent civil service employees and that the commission's Rules relating to seasonal employees are constitutionally valid.³

Plaintiff's other contention is that “Unsatisfactory” service is an impermissibly vague standard for the release of a seasonal employee. The “Unsatisfactory” rating standard is defined in Rule 21.04(b), with regard to probationary employees, as “Work performance is inadequate and below the standards of performance for the position.” There is no merit to the contention that this is an inadequate standard for the release of a seasonal employee. It relates specifically to the employee's ability to perform the job. (Cf. Morrison v. State Board of Education, 1 Cal.3d 214, 234, 82 Cal.Rptr. 174, 461 P.2d 375.) Again borrowing from case law involving permanent tenured employees, plaintiff argues that there is a vice in this definition because it leaves “unfettered discretion” to the employer. (E. g., California School Employees Assn. v. Foothill Community College Dist., 52 Cal.App.3d 150, 155-156, 124 Cal.Rptr. 830, 833 (rule against conduct “ ‘unbecoming an employee in the public service’ ” held impermissibly vague).) But as we have pointed out, the employer rightfully has discretion to release without cause a seasonal employee like plaintiff who is not protected by a civil service or tenure system. (Fugitt v. City of Placentia, supra, 70 Cal.App.3d 868, 874, 139 Cal.Rptr. 123.)

The order of dismissal is affirmed.

FOOTNOTES

1.  Nor is plaintiff in this action attempting to distinguish the 88 hours cliamed on his timecard from his claim for entitlement to 10 weeks pay.

2.  This is not a case falling within the limited exception of an at-will employee discharged for exercising constitutional rights. (Bogacki v. Board of Supervisors, supra; Bekiaris v. Board of Education, 6 Cal.3d 575, 587-588 & fn. 7, 100 Cal.Rptr. 16, 493 P.2d 480.)

3.  As pointed out above, plaintiff is not without a remedy. He had the right to review his unsatisfactory rating with his superiors, who could change the rating. (Rules 21.07, 21.02.)

ASHBY, Associate Justice.

STEPHENS, Acting P. J., and HASTINGS, J., concur.