Temporary Teacher May Seek Damages For School District's Failure To Provide Her "First Priority" When Filling A Subsequent Vacancy

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In Henderson v. Newport-Mesa Unified School District (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., March 13, 2013), a California court of appeal considered whether a temporary teacher employed for more than two years by a school district before being laid off, had a right of "First Priority" when the district subsequently sought to fill vacancies.  The court ruled that Education Code section 44918 expressly provides for "First Priority" for such a teacher when subsequent vacancies are filled and the teacher had a right to bring action against the district for failing to provide it.

What This Means To You

Although the court did not rule on the merits of this case, it cautions districts to be dutiful in filling vacant certificated positions and that liability may arise if they fail to give “first priority” to a qualified temporary teacher who served at least 75% in the same grade level and subject matter during the previous two years.  However, note that in order for this to apply, the position must be determined to be “vacant.”

Facts

In January 2008, Gloria Cheung Henderson was hired by the Newport-Mesa Unified School District ("District") to teach the Advanced Placement English Program at Corona del Mar High School, a school within the District.  She was classified as a "temporary" teacher, and told that the District initially hired teachers as temporary before reclassifying them as probationary.  Henderson was rehired as a temporary teacher for the 2008-09 school year, and again for the 2009-10 school year.

Following the end of the 2009-10 school year, the District decided to reduce its staff size and send layoff notices to probationary and permanent certificated teachers, and related precautionary notices to all 71 temporary teachers employed by the District offering them an opportunity to participate in the layoff hearings.  Henderson retained her own counsel and participated in an administrative hearing to protest the layoffs.  The Administrative Law Judge ("ALJ") ruled in favor of the District upholding the layoffs and the District's governing board approved the ALJ decision.  During the summer of 2010, the District advertised to fill vacant positions for which Henderson was qualified.  Henderson applied but was neither selected nor interviewed. 

Henderson filed a claim against the District claiming it violated Education Code section 44918, which requires that a temporary employee who has been employed by the District for 75 percent of two consecutive years, receive "first priority" for a position for which she is qualified. Henderson also alleged violations of the Fair Employment and Housing Act (“FEHA”) stating that she was not rehired because she is Asian-American.

The District demurred and the trial court sustained the demurrer ruling that Henderson's claims had been adjudicated in the administrative hearing.  The court also found that section 44918 does not provide for damages nor a specific remedy.  Henderson appealed and the court of appeal reversed the trial court’s decision.

Decision

California classifies public school teachers in four categories - substitute, temporary, probationary, and permanent - each with greater procedural protections for job security than the preceding.  Section 44918 provides that if a temporary teacher who has been employed by the District for 75 percent of two consecutive years is released, that teacher "shall receive first priority if the district fills a vacant position" for which the teacher is qualified.

Henderson was employed for more than two consecutive years and met the threshold for receiving "first priority" in the event of a vacancy.  Yet, she was neither interviewed nor selected for the positions.  In fact, the District filled the positions with teachers who were both new to the District and less experienced than Henderson.  The court found that those allegations, if proven, were sufficient to demonstrate the District's failure to comply with its obligation to afford Henderson "first priority."

Further, the court said, the trial court erred in both of the reasons it gave for sustaining the District's demurrer.  The administrative hearing only dealt with the decision to layoff a large number of teachers, it did not address Henderson's claim that the District owed her "first priority," and it did not address Henderson’s individual merit as a teacher.  Therefore, the hearing did not adjudicate her individual claims and her claims were not barred by res judicata.

The court also determined that the trial court erred when it ruled that section 44918 does not provide a right of action because it does not provide a specific remedy or penalty.  Government Code section 815.6 allows an individual to state a claim for damages against a government entity for a violation of a mandatory statutory duty that is designed to protect against risk of a particular kind of injury.  The trial court "confused the issue of whether the statute imposes a mandatory duty with the issue of whether it specifies a particular remedy."  Those are distinct questions, and even in the absence of a specific remedy, section 44918 imposes a mandatory duty on the District to give temporary teachers with Henderson's work history “first priority.”  The court determined that section 44918 “imposes more than a mere obligation to consider Henderson for an available position.  The District’s mandatory duty is to give Henderson ‘first priority’ if it chooses to fill a vacant position in the grade level and subject which she taught as a temporary teacher.”

As to Henderson's FEHA claim that she was discriminated against because of her race, it was not addressed in the administrative hearing and was not barred by res judicata. 

The trial court's judgment sustaining the District's demurrer was reversed and remanded to the trial court with directions to overrule the District's demurrer. 

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Diana D. Halpenny, Marie A. Nakamura or Meghan Covert Russell | 916.321.4500