Appellate Court Addresses Temporary Teachers

March 2013

A California Court of Appeals has allowed a temporary teacher to proceed with her allegations that a school district violated Education Code section 44918 by not according her “first priority” in hiring and by discriminating against her on the basis of race in violation of the California Fair Employment and Housing Act (“FEHA”).  (Henderson v. Newport-Mesa Unified School Dist. (Mar. 13, 2013, G046765).)  The court determined that a prior administrative proceeding did not bar the teacher’s claims and also concluded that section 44918 provides a private right of action for damages.  

According to her complaint, Gloria Cheung Henderson was classified as a temporary teacher who was “released” by the District pursuant to Education Code section 44954 after the 2008-09 school year.  She then was rehired as a temporary teacher for 2009-10 and assigned to the same advanced placement classes she had taught the previous year.  At the end of the school year, she was again released.  The District also sent layoff notices to 242 probationary and permanent certificated teachers, along with related notices to all 71 temporary teachers it employed.

Henderson, along with 172 other potentially affected teachers, contested the proposed layoffs at an administrative hearing.  She claimed that she was improperly classified as a temporary employee when others with lesser qualifications and less seniority had been classified as probationary or permanent employees.  However, an administrative law judge found that the District had good cause for its decision to terminate each of the employees who elected to contest the layoff decision.  Prior to the next school year, Henderson alleged that she applied for available positions for which she was qualified and entitled to first priority, but was neither offered the positions nor asked to interview for them.

Henderson then sued the District, claiming it violated the requirement of section 44918 that she be accorded “first priority” if it chose to fill any vacant teaching positions for the subjects she had previously taught.  Henderson also alleged the District discriminated against her based on her Chinese heritage, in violation of FEHA.  She asserted that the District had a desire to systematically reduce the number of certificated employees who classified themselves as “Asian.”

The Superior Court of Orange County agreed with the District that the legal doctrine of res judicata, which precludes a matter already decided from being raised again, barred both of Henderson’s claims because she had participated in the administrative hearing and had voluntarily dismissed her challenge to the adverse result of that proceeding.  The court also determined that section 44918 did not give rise to a private right of action for damages since it was not intended to protect the financial well-being of temporary teachers.     

Henderson appealed the decision to the Court of Appeal, which reversed the Superior Court’s order dismissing the action. 

The appellate court first rejected the District’s interpretation that section 44918’s guarantee of “first priority” to a temporary teacher applies only to a teacher who has been retained for two successive years after being released under section 44954.  Instead, according to the court, the law requires that “even when a school district has given notice of release to a temporary teacher, if it has otherwise acknowledged the teacher’s satisfactory performance by choosing to retain him or her over the course of two consecutive school years, it must give that teacher first priority in the event it elects to fill a vacant position for which that teacher is qualified in the subsequent school year.  [Emphasis in original.]

Next, the court concluded that a private right of action for damages exists under section 44918 because the law was designed specifically to protect temporary teachers by providing them with an advantage in obtaining employment against applicants who have no prior relationship with the district.  The law imposes a mandatory, rather than discretionary, duty on districts to give temporary teachers first priority under certain circumstances when it fills vacant positions.

According to the court, section 44918, on its face, imposes more than an obligation to merely consider a temporary employee who fulfills its requirements for an available position on an equal basis with other applicants.  It stated that “Henderson is entitled to more than an opportunity to compete for the vacant position.  What she is entitled to . . .  is ‘a preferential right of reemployment.’”  

Finally, the court determined that the prior administrative proceeding involving Henderson did not bar her claims in this case.  The administrative hearing resolved only her contention she had been improperly classified as a “temporary” employee.  It did not involve her 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.   

Note that the Court of Appeal did not rule on the merits of the claims.  Rather, its decision only allows Henderson to move her case forward to the trial stage.  The Court expressly noted that it was a matter for proof at trial as to whether the District’s alleged failure to fulfill its duty to accord Henderson “first priority” in hiring was a proximate cause of the damages she claimed.

This case serves to remind districts filling vacant teaching positions that they are at risk of liability if they fail to accord “first priority” to temporary teachers who are qualified for the position and who have served at least 75 percent of two consecutive years in that capacity.

If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Melanie Petersen and John Norlin.
Melanie Petersen is a partner in the F3 San Diego office.
John Norlin is Special Counsel in the F3 San Diego office.

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