Gloria Cheung 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 lay off 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 lay off 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
FACTS
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)
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 master’s 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
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 0.5 percent, while the percentages of Asians in Orange County as a whole remained steady.
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 lay off 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 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 815.6 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
Henderson disputed each of the District’s new points, arguing there was nothing in the language of section 44918 requiring that a temporary teacher’s completion of two consecutive years be subsequent to her release pursuant to section 44954, and reasserting her contention the statute gave rise to a private right of action. Henderson also claimed the District had improperly characterized the purported “primary right” at issue in this case, because her right to be properly classified as a teacher was distinct from her right, as a temporary teacher, to be accorded statutory priority in rehiring, and both of those rights were distinct from her right to be free from racial and ethnic discrimination.
The court sustained the demurrer without leave to amend. In doing so, the court accepted the District’s “primary rights” analysis, and characterized the single primary right at issue in both the administrative proceeding and in the causes of action asserted in this lawsuit as Henderson’s alleged right to be “reemployed for the 2010/2011 school year.” The court also noted that all of “the facts underlying [Henderson’s current] claims were in existence by September of 2010, a full three months prior to the voluntary termination of the underlying proceeding.” The court thus concluded the adverse ruling in that administrative proceeding effectively subsumed Henderson’s current claims, and barred her from asserting any separate claim based upon the District’s failure to reemploy her.
The court also concluded, with respect to Henderson’s claim for violation of section 44918, that the statute provided no private right of action for failure to reemploy a temporary teacher: “Section 44918 does not provide for any specific remedy or penalty, and does not actually provide for reemployment; instead, it provides for nothing more than consideration amongst other similarly-situated teachers for whatever vacant spots (if any) exist for that particular school year. A private right of action under Gov. Code § 815.6 does not arise since § 44918 is not intended to protect the financial well-being of temporary teachers.” Finally, the court reasoned that while a mandamus remedy would be available to enforce the District’s compliance with section 44918, such an option had been rendered moot by the time Henderson filed
Following its order sustaining the demurrer without leave to amend, the court entered a judgment dismissing Henderson’s case.
DISCUSSION
1. Standard of Review
We review the court’s demurrer rulings de novo (McCall v. PacifiCare of Cal., Inc. (2001)
Significantly, because “[a] demurrer tests the sufficiency of a complaint by raising questions of law,” we are “not bound by the trial court’s construction of the complaint . . . but must make [our] own independent interpretation.” (City of Pomona v. Superior Court (2001)
2. Governing Law
The claims asserted by Henderson, both here and in the earlier administrative proceeding, arise against the backdrop of California’s “ ‘complex and somewhat rigid’ legislative scheme for classifying public school teachers . . . .” (McIntyre v. Sonoma Valley Unified School Dist. (2012)
“ ‘In the case of permanent and probationary employees, the employer’s power to terminate employment is restricted by statute. Substitute and temporary employees, on the other hand, fill the short range needs of a school district and generally may be summarily released. [Citation.]’ [Citation.]” (Vasquez v. Happy Valley Union School Dist. (2008)
Section 44954 specifies that school districts may “release” certificated temporary employees “[a]t the pleasure of the board prior to serving during one school year at least 75 percent of the number of days the regular schools of the district are maintained” (§ 44954, subd. (a)), and “[a]fter serving during one school year the number of days set forth in subdivision (a), if the employee is notified before the end of the school year of the district’s decision not to reelect the employee for the next succeeding year” (§ 44954, subd. (b)).
But the Education Code narrowly defines the circumstances in which teachers may be classified as temporary, apparently due to a specific concern school districts might exploit that designation to the detriment of the employees, in an attempt to maintain maximum flexibility in hiring teachers from year to year: “The Code recognizes two general kinds of temporary employees: those who are employed to serve for less than three or four months, or in some types of limited, emergency, or temporary assignments or classes (see §§ 44919, 44921, 44986); and those who are employed for up to one year to replace a certificated employee who is on leave or has a lengthy illness (see §§ 44920, 44918).” (Bakersfield Elementary Teachers Assn. v. Bakersfield City School Dist. (2006)
Moreover, as explained in Haase v. San Diego Community College Dist. (1980)
Specifically, section 44918 provides that if a temporary employee who has served 75 percent of the school year is hired for a vacant position the next year, the year of temporary employment will retroactively qualify as a probationary year. (§ 44918, subd. (a).) Further, section 44918 requires that if a temporary employee who has served at least 75 percent of the school year has not been released pursuant to subdivision (b) of section 44954, that employee “shall be reemployed for the following school year to fill any vacant positions in the school district . . . .” (§ 44918, subd. (b), italics added.) In light of the latter provision, school districts must routinely “release” any temporary certificated employees who have served at least 75 percent of a school year, in order to maintain maximum flexibility to make hiring decisions for the following school year. (See McIntyre v. Sonoma Valley Unified School Dist., supra, 206 Cal.App.4th at pp. 177-178 [reflecting school district’s serial releases and rehiring of a temporary teacher over the course of three years].)
And in the provision especially pertinent to this case, section 44918, subdivision (c), provides that if a temporary employee “was released pursuant to subdivision (b) of [s]ection 44954 and has nevertheless been retained as a temporary or substitute employee by the district” for 75 percent of two consecutive years, “that employee shall receive first priority if the district fills a vacant position, at the grade level at which the employee served during either of the two years, for the subsequent school year. In the case of a departmentalized program, the employee shall have taught in the subject matter in which the vacant position occurs.” (§ 44918, subd. (c), italics added.)
More important, if such a requirement were inferred, it would produce an anomalous result. Specifically, under that interpretation, the temporary employee who has endured for two consecutive years following receipt of a notice pursuant to section 44954 would have less right to fill a vacant position in the subsequent year than would a temporary employee who had served only a single year without receiving such a notice. Subdivision (b) of section 44918 requires that the latter be “reemployed for the following school year to fill any vacant positions''’ (italics added), while under the District’s interpretation, subdivision (c) would guarantee the temporary teacher who had served two consecutive years after receiving such a notice only “first priority zjfthe district fills a vacant position” (italics added). Such a result runs counter to the Education Code’s near slavish adherence to seniority as a basis for establishing relative job security among teachers, and we reject it.
Instead, we conclude the statute simply reflects a modest effort to encourage school districts to integrate temporary teachers whose services have proved satisfactory over an extended period of time into the ranks of the probationary and permanent employees, and thus to curtail any tendency school districts might have to perpetuate a permanent underclass of “temporary” teachers with no prospects of achieving job security. Hence, under the first provision, any temporary employee who has served at least 75 percent of a school year and is then hired for the following year as a probationary employee is entitled to retroactive probationary credit for the year of temporary status. Under the second provision, if a school district fails to exercise its absolute right to release a temporary employee who has served at least 75 percent of the school year in accordance with section 44954, it is required to reemploy that teacher to fill a vacant position rather than another temporary slot.
And under the third provision of section 44918, which is the one at issue here, even when a school district has given a 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
With that statutory background in mind, we turn to the merits of the District’s demurrer.
3. Private Right of Action Under Section 44918
As we have explained, the allegations of Henderson’s complaint demonstrate that by the end of the 2009-2010 school year, she had served more than two complete, consecutive years as a temporary teacher, and thus she qualified for “first priority if the district fills a vacant position, at the grade level at which [she] served [and] in the subject matter in which the vacant position occurs.” (§ 44918, subd. (c).)
But the District argued, and the trial court agreed, that section 44918 did not give Henderson a private right of action. We disagree. Government Code section 815.6 allows an individual to state a claim for damages against a governmental entity based on its violation of a mandatory statutory duty “that is designed to protect against the risk of a particular kind of injury . . . .” Courts apply a three-pronged test for determining whether liability can be imposed under this statute: “(1) an enactment must impose a mandatory, not discretionary, duty [citation]; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability [citations]; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (State of California v. Superior Court (1984)
In its analysis of section 44918, the trial court concluded section 44918 did not state a private right of action for two reasons: First, because the statute “does not provide for any specific remedy or penalty, and does not actually provide for reemployment; instead, it provides for nothing more than consideration amongst other similarly-situated teachers for whatever vacant spots (if any) exist for that particular school year . . . .” And second, because “§ 44918 is not intended to protect the financial well-being of temporary teachers.”
With respect to the first point, we note the court confused the issue of whether the statute imposes a mandatory duty with the issue of whether it specifies a particular remedy. Those are two distinct questions, and the test for determining the existence of a private right of action does not include any requirement that a statute actually specify a remedy.
Section 44918, on its face, imposes more than a mere obligation to consider Henderson for an available position. The District’s mandatory duty
Instead, our Supreme Court characterized section 44918 as obligating the district to give a temporary employee who fulfills its requirements “a preferential right of reemployment.” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)
California Teachers Assn., in which the Supreme Court addressed a teacher’s claim of preferential employment rights in connection with a vacant coaching position, is instructive in analyzing the effect of such a preferential right—and by extension, whether a school district’s violation of the right would support a claim for damages. There, the teacher filed an action seeking injunctive relief and damages against his school district, alleging it violated section 44919, subdivision (b), which specifies that an open coaching position “shall first be made available to teachers presently employed by the district.” The teacher argued the school district violated that obligation when it awarded a vacant coaching position for which the teacher had applied to a nonteacher, rather than to him. The trial court ruled against the teacher, however, agreeing with the school district’s interpretation of the statute as requiring only that it notify its teachers of the available coaching position, without any obligation to accord them any preference in hiring. The Court of Appeal then reversed that ruling, agreeing with the teacher’s contention that the statute obligated the school district to give a “ ‘right of first refusal’ ” (California Teachers Assn., supra,
The court first rejected the district’s (and trial court’s) position, explaining that “[b]y using the word ‘first,’ the Legislature clearly intended to afford some degree of advantage or priority to ‘teachers presently employed by the district,’ placing them on a level above both noncredentialed employees currently employed by the district, as well as persons not then employed by the district in question, whether or not credentialed. Under the [district’s proposed interpretation of section 44919(b), however, teachers can simply apply and be considered along with every other applicant, with no advantage.
The court then rejected the teacher’s (and the Court of Appeal’s) position, explaining that requiring the school district to give any employed teacher a right of first refusal “is too rigid, for it fails to take into account the relevant qualifications and skills the school district may require of an applicant before entrusting him or her to ‘supervis[e] athletic activities of pupils.’ One cannot qualify for a coaching position simply by possessing a teaching credential. In short, that an applicant for a coaching position is a ‘teacher[] presently employed by the district,’ is not, by itself, a guarantee of the job.” (California Teachers Assn., supra,
Instead, the court explained school districts retained “the discretion both to establish their own coaching qualifications and to evaluate coaching applicants to determine whether they meet those standards.” (California Teachers Assn., supra,
We conclude the majority’s analysis in California Teachers Assn. applies with equal force to Henderson’s proposed claim for violation of her right to “first priority” under section 44918. Here too, the Legislature’s use of the word “first” means Henderson is entitled to more than an opportunity to compete for the vacant position. What she is entitled to, in the words of the Supreme Court, is “a preferential right of reemployment.” (California Teachers Assn., supra,
But the mere fact the statute gave Henderson no ultimate guarantee of employment does not mean the duty it imposed on the District to accord Henderson “first priority” was a discretionary one. Instead, the fact she might not have been hired even if the District had fulfilled its obligations under the statute is pertinent only in assessing whether plaintiff can satisfy the third prong of the test for establishing a private right of action, i.e., whether defendant’s breach of the mandatory duty is “a proximate cause of the injury suffered.” (State of California v. Superior Court, supra,
The trial court’s determination that section “44918 is not intended to protect the financial well-being of temporary teachers” fares no better. Indeed, it seems to fly in the face of the Supreme Court’s characterization of that very statute as “giv[ing] the described classes of persons a preferential right of reemployment.” (California Teachers Assn., supra,
In Keech, the parents sought to impose liability based on the district’s failure to promptly assess their son for special educational needs. The court rejected the effort, explaining the statutes which governed the district’s obligations “were not designed to protect the parents of an emotionally or mentally handicapped child from the monetary expenses incurred in providing medical, psychological or related services for their child during the time it
And in Tirpak, the plaintiffs were a student who had been suspended from school and denied readmission and his mother; both sought damages for the alleged educational expenses and loss of earning capacity incurred as a result of the student’s suspension, as well as compensation for their attendant emotional and physical pain. To support their alleged private right of action, the plaintiffs relied on the district’s alleged violation of the statutory procedures designed to ensure that a student’s right of access to a free education will not be arbitrarily denied. In concluding no private right of action was stated, the appellate court explained the statutes in question “are part of a comprehensive set of procedural guidelines found in the Education Code, which are administrative in nature and intended to provide due process. Since it is clear that these provisions of the Education Code were not designed to protect students and their parents from money damages resulting from ‘educational’ injuries, plaintiffs have failed to state facts sufficient to constitute a cause of action.” (Tirpak v. Los Angeles Unified School Dist., supra,
Here, by contrast to Keech, there is no indication the statutory duty imposed by section 44918 is designed to provide a benefit to any group other than the one Henderson belongs to—temporary teachers. Moreover, it is clear the goal of the provision is to provide those temporary teachers with an advantage in obtaining employment in a vacant position as against applicants who have no prior relationship with the district, and thus to benefit them financially. And in contrast to Tirpak, the duty imposed is not merely procedural in nature. Instead, the right accorded to temporary teachers who have served for two consecutive years is a substantive right which guarantees them a hiring preference in the event their school district chooses to fill a vacant position at the grade level—and in cases of a departmentalized program, in the subject matter—which they have previously taught.
In light of the foregoing, we conclude subdivision (c) of section 44918 gives rise to a private right of action by a temporary teacher who has served at least 75 percent of two consecutive years in that capacity for the same school district, if the district fails to accord that teacher the required “first priority” when it chooses to fill a vacant position in the subsequent
4. Henderson’s Claims Are Not Barred by Res Judicata
The court also sustained the District’s demurrer to both Henderson’s claim for violation of section 44918 and her claim for violation of FEHA on the distinct basis that they were barred by the doctrine of res judicata. It reasoned that both claims were founded on the same primary right placed at issue in the earlier administrative proceeding, and noted that all of the facts underlying these claims had occurred “by September of 2010, a full three months prior to the voluntary termination of the [earlier] proceeding.” Based on that analysis, the court concluded Henderson’s current claims were part of the same legal “cause of action” adjudicated in the administrative proceeding, and thus that Henderson was precluded from relitigating them here. Henderson argues the court erred in its analysis, and we agree.
a. Primary Rights Analysis
The court’s mistake was in its characterization of the “primary right” underlying Henderson’s various claims. As explained most recently by our Supreme Court in Boeken v. Philip Morris USA, Inc. (2010)
In the trial court’s view, the primary right at issue in both the administrative proceeding and the claims Henderson currently asserts was her right to be “reemployed for the 2010/2011 school year.” But a plaintiff’s primary right is defined by the legally protected interest which is harmed by defendant’s wrongful act, and is not necessarily coextensive with the consequence of that wrongful act. (See Daugherty v. Board of Trustees (1952)
b. Henderson’s Right to Proper Classification
As exemplified by Daugherty v. Board of Trustees, supra,
What Daugherty makes clear is that a public school teacher’s right to be properly classified, and thus to enjoy the appropriate “ ‘level of procedural protections to which a teacher is entitled should he or she be dismissed or nonreelected’ for the next school year” (McIntyre v. Sonoma Valley Unified School Dist., supra,
Moreover, to the extent the limited nature of Henderson’s participation in the administrative proceeding was not alleged with sufficient clarity in the complaint, she made that limitation explicit in her opposition to the District’s demurrer and even supported it with documentation provided by the District. Even assuming those documents were not appropriate subjects of judicial notice, it is sufficient for purposes of demurrer that Henderson demonstrated she is prepared to allege such facts. “ ‘[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ ” (Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009)
Significantly, the documents of which the District sought judicial notice in support of its demurrer do not establish anything to the contrary. In fact, Henderson’s petition for writ of mandate, challenging the result of the administrative hearing, actually supports her characterization of the limited claim she asserted therein. Specifically, her petition describes the nature of the action as one “to reclassify Petitioner as at least a ‘probationary employee’ . . . with a seniority date of March 14, 2008, and to reinstate Petitioner’s employment with [the District] as a ‘permanent’ employee ... for the 2010-2011 academic school year.” (Italics added.) Thus, the only thing that could be conclusively determined from this record is that Henderson’s subsequent dismissal of that petition for writ of mandate, with prejudice, would bar her from further litigating any claim based specifically on the assertion the district had improperly classified her as a temporary teacher.
c. Henderson’s Statutory Right to Priority in Rehiring
Henderson’s cause of action for violation of section 44918 is not based on any assertion she had been improperly classified as a temporary teacher. To the contrary, the cause of action is explicitly grounded on her classification as a temporary teacher. Henderson’s claim is that the District violated her statutory right, as a temporary teacher with two consecutive years of employment, to be accorded “first priority” in rehiring. Consequently that claim,
d. Henderson’s Right to Be Free from Discrimination Under FEHA
Additionally, as cogently explained in George v. California Unemployment Ins. Appeals Bd. (2009)
Of course, if an employee actually does litigate a claim of discrimination as part of an administrative review process, an adverse determination of that claim might be accorded collateral estoppel effect in a subsequent case. (Castillo v. City of Los Angeles (2001)
Because Henderson’s cause of action alleging the District discriminated against her on the basis of race in violation of FEHA was based on her distinct primary right to be free from such discrimination—a right which was not adjudicated in the earlier administrative proceeding—that cause of action is not barred by res judicata.
The District also argued that even assuming the administrative proceeding did not operate as a complete bar to the claims asserted by Henderson in this case, it nonetheless resulted in a binding determination by the ALJ that the District had “good cause not to reemploy her for the 2010-2011 school year.” According to the District, that determination is entitled to preclusive effect herein and demonstrates Henderson cannot prevail on either of her current claims. We disagree.
Collateral estoppel, or “issue preclusion,” prevents “relitigation of issues argued and decided in prior proceedings.” (Lucido v. Superior Court (1990)
The flaw in the District’s argument is that it apparently equates the ALJ’s determination that the District had good cause to terminate Henderson’s employment within the process of implementing layoffs, with a determination that the District thereafter had “good cause not to reemploy [her]” in another position that became available for the subsequent year. In effect, the District is suggesting the administrative proceeding actually adjudicated Henderson’s individual merit as a teacher. But there is nothing in either Henderson’s complaint, or the documents of which the District sought judicial notice, that would support such an inference. As far as we can discern from the record, the administrative proceeding addressed only the propriety of the District’s economic decision to implement a layoff and the order in which that economic decision would affect individual teachers. There is no indication the ALJ engaged in any evaluation of the relative merit of individual teachers or had any occasion to determine whether Henderson would be deserving of reemployment in the subsequent school year, if an appropriate position became available. Under these circumstances, the District has demonstrated no basis for application of collateral estoppel.
The judgment is reversed and the case is remanded to the trial court with directions to overrule the District’s demurrer. Henderson is to recover her costs on appeal.
Moore, J., and Thompson, J., concurred.
A petition for a rehearing was denied April 10, 2013, and respondents’ petition for review by the Supreme Court was denied June 26, 2013, S210175.