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Gloria Cheung Henderson v. Newport-Mesa Unified School District et al

March 13, 2013


(Super. Ct. No. 30-2011-00498064) Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge.

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.



Reversed and remanded.

Gloria Henderson appeals from a judgment of dismissal entered after the trial court sustained a demurrer to her complaint without leave to amend. Henderson, a teacher, sued Newport-Mesa Unified School District and its governing board (the District), alleging claims for damages based on (1) the District's failure to accord her "first priority" when they elected to fill a vacant position in the subject matter she had previously taught, as required by Education Code section 44918 (unless otherwise specified, all further statutory references are to this code); and (2) the District's discrimination against her on the basis of her race, in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900, et seq.).

The trial court sustained the District's demurrer to both causes of action on the basis Henderson's claims were barred by res judicata, because she had participated in an administrative proceeding which adjudicated her rights in connection with the District's decision to layoff a large number of teachers at the end of the prior school year, and she later voluntarily dismissed her petition for writ of mandate challenging the adverse result of that proceeding. Additionally, with respect to Henderson's claim for violation of section 44918 specifically, the court concluded the statute did not give rise to a private right of action for damages and that whatever right Henderson had to enforce the statute by way of a writ of mandamus had been rendered moot by her failure to pursue that relief in a timely manner. We reverse the judgment.

Section 44918 imposes a mandatory duty on the District to accord temporary teachers such as Henderson "first priority" in hiring under the specified circumstances, and we can discern no rationale for imposing such a duty other than the desire to provide those temporary teachers with some protection against the risk they will be permanently relegated to "temporary" status, while others with no greater qualifications are hired to fill positions which offer the potential of achieving employment security. Whether the District's alleged failure to fulfill that duty was a proximate cause of the damages Henderson alleges is a matter of proof at trial, but for pleading purposes it is sufficient that she has alleged facts suggesting it was.

The court's determination that both causes of action were barred by res judicata was similarly flawed. The earlier administrative hearing addressed only the District's decision to layoff a large number of certificated employees for economic reasons at the end of the 2009-2010 school year, and resolved claims affecting the order in which that layoff would impact individual employees. With respect to Henderson specifically, it appears the hearing resolved only her contention she had been improperly classified as a "temporary" employee - a classification which effectively guaranteed the layoff would impact her personally. There is no indication the administrative hearing addressed Henderson's distinct right, as a temporary teacher, to be accorded priority if the District chose to fill a vacant position in the subsequent school year, or her right to be free from discrimination on the basis of her race. Consquently, the court erred in concluding Henderson's current claims were barred by the doctrine of res judicata.


For purposes of analyzing the District's demurrer, we "generally assume that all facts pleaded in the complaint are true." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.)

According to the complaint, Henderson is a first generation Chinese-American. She holds California teaching credentials qualifying her to teach several subjects. She also holds Masters Degrees in both English and Psychology. In January of 2008, while Henderson was employed as a tenured teacher in another school district, she was offered the opportunity to take over the Advanced Placement English Program at Corona del Mar High School, a school within the District.

Henderson was classified as a "temporary" teacher, but was told it was the District's policy to initially classify all new teachers as temporary, and she could expect to be reclassified as a probationary teacher after a few months. Prior to the end of the 2007-2008 school year, the District notified her she would be rehired for the 2008-2009 school year, but again as a "temporary" teacher.

During the 2008-2009 school year, Henderson was assigned to teach the same Advanced Placement English classes she had been hired to teach the prior year, plus an Advanced Placement Psychology class. At the end of that school year, Henderson was "released" by the District pursuant to section 44954, but was once again rehired as a temporary teacher for the 2009-2010 school year and assigned to teach the same Advanced Placement courses she had taught the prior year.

At the end of the 2009-2010 school year, the District again notified Henderson she was being released pursuant to section 44954. But the District also decided to eliminate approximately 125 "full time equivalent" positions from its payroll due to a cut in state spending. Thus, on or about March 5, 2010, the District sent out layoff notices to 242 probationary and permanent certificated teachers, plus related notices to all 71 temporary teachers employed by the District. These related notices offered the temporary teachers an opportunity to participate in a hearing held pursuant to sections 44949 and 44955, to contest the District's decision.

Henderson was among 173 potentially affected teachers who elected to contest her proposed layoff at the administrative hearing, which took place in April and May of 2010. Of those teachers, Henderson was the only one who employed private counsel to represent her at the hearing. All the other teachers were represented by counsel provided by the union. At the hearing, the District employee who was responsible for supervising the layoff process testified the District was not seeking to actually terminate the employment of any high school teacher who held "probationary status or higher." Henderson, in turn, relied on evidence suggesting she had been improperly classified as a temporary employee when others with lesser qualifications and less seniority had been classified as probationary or permanent.

On May 17, 2010, at the conclusion of the hearing, the Administrative Law Judge (ALJ) ruled in favor of the District on all issues. The ALJ concluded the District had good cause for its decision to terminate each of the 173 employees who elected to contest the layoff decision. The ALJ's decision was approved by the District's governing board on May 19, 2010.

Over the course of the summer of 2010, the District made no offer to reemploy Henderson for the subsequent school year, as it had done in each of the prior two summers. Instead, the District advertised to fill certain positions for which Henderson was both qualified and entitled by law to be given first priority.

Henderson did apply for these available positions, but despite her qualifications and statutory priority, she was neither offered the positions nor asked to submit to an interview for them. Three positions for which Henderson was qualified were instead offered to Caucasian women. In December of 2010, Henderson applied for a part-time position at Estancia High School, another school within the District. After she interviewed with Estancia's principal, he told her she was his top choice for the position, although the final selection would be made by human resources personnel at the district level. Henderson was not offered the position.

As of the 2009-2010 school year, approximately 4.4 percent of the District's students allegedly self-classified as "Asian." In the two years Henderson was employed by the District, however, the percentage of certificated staff who self-classified as "Asian" was reduced from 3 percent to just .5 percent, while the percentages of Asians in Orange County as a whole remained steady.

Henderson claims the District's refusal to rehire her for the 2010-2011 school year was based on both a desire to retaliate against her for the vigorous defense she waged at the administrative hearing and a desire to systematically reduce the number of certificated employees who self-classifed as "Asian."

In January 2011, Henderson filed a claim against the District pursuant to sections 910 and 945.4 of the Government Code, seeking an award of damages stemming from its wrongful refusal to rehire her. Henderson's claim was denied by the District in February of 2011. In June 2011, Henderson sought and obtained a right to sue letter from the Department of Fair Employment and Housing pursuant to Government Code section 12960.

Based on the foregoing facts, Henderson's complaint alleged two causes of action: one for violation of section 44918's requirement she be accorded "first priority" if the District chose to fill any vacant positions teaching the subjects she had previously taught and a second for wrongful discrimination against her on account of her Chinese heritage, in violation of FEHA.

The District demurred to Henderson's complaint, arguing that both of her causes of action were barred by the earlier administrative proceeding, in which the ALJ purportedly found there was "good cause to not reemploy [her]," because Henderson had failed to exhaust her judicial remedy in connection with it. The District also argued Henderson's claim for damages based on the alleged violation of section 44918 failed to state a cause of action because the statute did not give rise to a private right of action for damages and that Henderson's sole remedy was a petition for writ of mandate to compel its compliance with the statute. In support of its demurrer, the District also asked the court to take judicial notice of Henderson's petition for writ of mandate challenging the result of the earlier administrative hearing, filed on June 21, 2010, and of her request for dismissal of that petition, with prejudice, filed on December 28, 2010.

Henderson opposed the demurrer, arguing the District's preclusion argument was based on a misconstruction of both the allegations of her complaint and the scope of the earlier administrative proceeding. She pointed out the complaint alleged only that the administrative proceeding had addressed the propriety of the District's decision to layoff a large group of employees at the end of the 2009-2010 school year, and made no reference to whether there were grounds for not rehiring her specifically for the 2010-2011 school year.

Henderson explained her participation in the administrative proceeding had been for the limited purpose of challenging her classification as a "temporary" employee, which afforded her the lowest level of job security in the implementation of the District's planned layoffs. Henderson also noted that as long as she remained classified as a temporary employee, the District had absolute discretion to terminate her services without cause, and consequently the existence of "good cause" for terminating her employment was legally irrelevant, and thus could not have been adjudicated in the proceeding. In support of her contention about the limited scope of the administrative hearing, Henderson requested the court take judicial notice of (1) the notices served on her by the District, which reflected she had been "invited . . . to participate in the statutory procedures for certificated layoffs . . . if you desired to challenge your classification as a temporary certificated employee," and (2) the District's resolution adopting the ALJ's decision, in which it specifically resolves that all the temporary teachers were "properly classified," and that all were "released from employment pursuant to section 44954."

Henderson also disputed the District's claim she had no private right of action for damages under section 44918, arguing the statute imposed a mandatory duty specifically designed to protect the employment rights of temporary teachers, and thus recognition of a private right of action in members of that affected group was necessary to further the statutory goal. Alternatively, she claimed that even if the court determined there was no private right of action, the District had expressly conceded that a petition for writ of mandate would be an appropriate remedy, and her cause of action alleged all the necessary facts to warrant such relief.

On October 25, 2011, the date originally scheduled for the demurrer to be heard, the court issued an order soliciting additional briefing on several issues. First, the court asked the parties to assume Henderson's right to preference in rehiring for the 2010-2011 school year had not been addressed in the earlier administrative proceeding, as she claimed, and to explain what obligation, if any, she had to exhaust administrative remedies for that claim prior to seeking relief in the court. Second, the court asked the parties to address whether Henderson's eligibility for "first priority" under section 44918 was dependent upon her serving two consecutive years as a temporary teacher after she had been released pursuant to section 44954. And third, the court asked the parties to address the extent to which Government Code section 815.18 bears on the analysis of whether Henderson has a private right of action under section 44918.

The parties provided the court with additional briefing, with the District adopting the court's suggestion that Henderson would not qualify for "first priority" in rehiring under section 44918, because she could not allege she had been retained as a temporary teacher for two full years after she was released pursuant to section 44954. The District also offered additional arguments supporting its contention Henderson had no private right of action under section 44918 in any event, and reasserted its claim that Henderson's causes of action were barred by the earlier administrative proceeding, but this time stated in terms of a "primary rights" analysis. Specifically, the District argued the "primary ...

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