*1 Dist., No. 13200. Fourth Div. Two. Mar. 1974.] [Civ. HOSPITAL,

NORTHERN INYO Plaintiff Respondent, COMMISSION, PRACTICE FAIR EMPLOYMENT Defendant and Appellant; KELLER, in Interest and

LOUISE Real Party Respondent.

Counsel O’Brien, General, J. Robert H. Assistant Attor- Evelle Attorney Younger, General, Ashmann, General, and Judith T. for De- Deputy Attorney ney fendand Appellant. Smith for Plaintiff and Schaefer and Willis Respondent.

Smith & for No Real Interest Party Respondent. appearance Opinion . (hereafter Commission

TAMURA, J The Fair commanding á in mandate Commission) from FEPC or appeals Hos- Inyo issued Northern cease and desist order against it to vacate a in em- an act of racial discrimination alleged District (Hospital) pital Keller). (Mrs. in interest Louise real party ployment practiced Indian, Keller, filed an unlawful practice Mrs. an American after her with the FEPC that the charging Hospital, granting complaint leave, her an sick refused to her because of race. solely Following rehire formal filed Hos- investigation, a accusation1 served and charging her discrimination Mrs. Keller because of race solely pital against *4 in (a).2 and violation Labor ancestry Code section subdivision The Cbmmission heard the matter itself of the office with a officer hearing Code, (Gov. administrative subd. hearings (b).3) § presiding. The Commission found the that had discriminated Hospital unlawfully against Mrs. Keller as the in accusation and issued a cease and charged desist order $2,982.40 and an order the directing to Mrs. Keller Hospital pay in lost as wages a result of the against unlawful discrimination practiced her.4 and to review va- administrative mandamus for filed

Hospital petition others, that the Commission the ground, among cate the FEPC decision on the “were not by weight abused its discretion in that its supported of the whole record.” light or evidence in the evidence substantial on was granted At the hearing commencement petition, Hospital by 1In the California Fair procedures prescribed accordance with the Act, one assistance was made of the commissioners staff by investigation Code, (Lab. served. caused issued and and that commissioner the written accusation to be 1421, 1423.) §§ (a), provided: “It shall be an 2Labor Code that time section subdivision at occupational qualifica fide practice, based a bona employment upon unlawful unless or, tion, regulations security established except upon applicable where based United States or the State California: creed, color, origin, “(a) race, national religious employer, For because of the an to refuse select ancestry, any person, employ to or him or to or sex of to refuse hire discharge such to bar or to training leading employment, or program him for employment, training leading or to employment program person from from terms, privileges conditions or against compensation or in person discriminate such employment.” who the commissioner investigated section with Labor Code 3In accordance participate in served did not and to be issued and case caused accusation hearings. not did employment taken and therefore other Keller had in the meantime 4Mrs. seek reinstatement. “affects leave to amend an that the FEPC decision by adding allegation Petitioner, fundamental vested to establish rights employment practices and conditions to at Petitioner’s procedures impose The cause was thereafter on the facility.” and submitted hospital argued answer, the Commission’s and the administrative record. petition, as be summarized the FEPC hearing may at evidence adduced The follows: is located in Keller was Bishop, at which Mrs. employed

The Hospital Local California, the Northern Inyo Hospital is owned and operated District, Hospital district. Mrs. Keller commenced working a public su- laundry and eventually appointed its kitchen and 1960- laundry minor 17,1970, surgery, that she needed learning On August pervisor. McConnell) if she would be (Mr. she asked the administrator testified that to work if she should She undergo surgery. allowed to return to work. Keller Mr. McConnell that she could return Mrs. thereupon replied without sick leave (her having for a leave of absence previously applied pay from used) been and underwent she was released surgery. day fully 11, 1970), she a letter from Mr. McConnell received hospital (Sept. leave her her of absence had been informing approved “[t]he of the Board is that to work will be on the avail- return policy contingent *5 of the work load at that time.” ability 28, 1970,

On October Mrs. Keller obtained a release from her physician to return to work. She went to that told McConnell and Mr. day Hospital she was McConnell return to work. told her to see Jim Stewart ready who had taken Mrs. Keller’s as apparently laundry. place supervisor Mr. Stewart informed Mrs. Keller that no was needed at that time. help Mrs. Keller she would be available for work should there be replied an opening. board of a letter to the 1970, Mrs. Keller wrote

In November early that she complaining committee advisory Hospital directors and the with the statements: concluded following rehired. The letter had not been dis- I feel some that way this to but anyone, “I mentioned have never I I not do I think should is somewhere. If did my job, here criminating [sz'c] Smith, letter dated Mr. attorney, have been told.” replied Hospital’s to work the leave of absence made return contingent stating November his that no work work. He stated it was understanding availability there was an but that she would be called when was then available opening. before the board of directors he that she could Although suggested appear her Keller did not do so. Mrs. discuss Mrs. employment, apparently Service Indian Legal Ford the California to a Pat admitted talking Keller to the her letter Hospital. time she wrote about avail- thereafter became three that although openings was evidence There fill of these any was not called to positions. Keller laundry at the Mrs. able on account against she discriminated she felt was Mrs. Keller testified that leaves of absence had Indian because Hospital granted of her ancestry them. rehired female workers and had subsequently several non-Indian leave had been on sick fact that certain Caucasian named employees their was corroborated a consultant returned to jobs subsequently who to the FEPC case. investigated McConnell that the who had been rehired after

Mr. testified workers sick leave were nurses whose skills were short Mrs. Keller initially supply; was not rehired because the shut down for laundry remodeling; partially letter, Mrs. Keller’s November more her statement particularly “I somewhere,” feel in some is here way discriminating “put [szc] mind”; doubt in he admitted there was a available sometime in job [his] November of 1970 but testified that letter and Mrs. Keller’s subsequent to the FEPC 1971) him not (Jan. to rehire her complaint persuaded because he was to do so afraid that an admission would be that Hospital had discriminated her. He denied that there had been against any discrimination Mrs. Keller because of her racial against ancestry. filled out by form survey Hospital

An FEPC pattern that the em- indicates at the FEPC hearing in evidence received Of the minority 24 are members of of whom group. ploys persons, Oriental, Negro who are neither nor are members minority group Mexican, American One Central or South ancestry. 6 are persons Twenty- the former category designated supervisor.5 the 18 persons are nonminority designated four supervisors. persons *6 the of the of is City McConnell testified that Bishop Mr. population 9,000 3,000, its is and the vicinity immediate more than the population 16,000. of the is Mrs. Keller testified that the Indian county population Reservation, and the City of the Indian the Bishop Bishop population of whom lived areas numbered on reser- surrounding 900 persons, vation. that, knew, only she was the American Indian 5Mrs. Keller testified as far as she employment supervisorial capacity by Hospital. a at the of her employed in time However, indicating a survey employment of one Indian in form American Hospital with the by filled out connection supervisorial capacity apparently was longer employed investigation by Hospital. when Mrs. Keller was no at time FEPC employed one two Hospital as to inconclusive whether

The evidence is therefore supervisorial capacity. Indians American The Commission found Mrs. was Keller granted medical leave 17, 1970, or about absence on August that she understanding would be entitled to the first available for which she position was qualified; 28, 1970, on October Mrs. Keller became available for reemployment was assured again by that she would be Hospital rehired when the first available since that position time developed; have positions developed which Mrs. Keller was but others qualified were hired for those positions; the failure to Mrs. Keller was reemploy due to her solely race or ancestry. that the

The court below determined FEPC decision “affects fundamental to establish vested and to rights Hospital] practices procedures [the conditions to at and that the impose facility” employment hospital [its] court was therefore authorized to exercise its on judgment independent of the evidence. The court found it be weight true that Mrs. Keller absence; a medical leave that she became available for re- granted 28, 1970; on October and that the failed to rehire Hospital However, her. the court found that the failure to rehire was not because of Mrs. Keller’s race or and that the did not ancestry violate Labor (a). Code section subdivision was entered Judgment directing issuance of a writ mandate peremptory the FEPC to ordering vacate its decision.

The (1) FEPC contends that the substantial evidence rather than the in- rule dependent judgment should have béen its decision applied reviewing (2) that there was substantial evidénce in the of the entire record light the Commission’s support decisión and that the should there- judgment fore be reversed with directions to enter for the Commission. From the which follows, analysis we have concluded that the foregoing contentions must be upheld.

I rules basic framework for the review of final governing judicial any a state rendered or local administrative is by order or decision agency pro- (Bixby vided Code of Civil Procedure section 1094.5. by Cal. 3d 481 P.2d Subdivision (c) “(c) section it claimed that the are Where not provides: supported evidence, in cases in which the court is authorized law to exercise evidence, its abuse on the of discretion is established independent judgment *7 if the court that determines the are not findings the supported by weight evidence; of the all other cases abuse of discretion is established if and- the court determines that the are not findings substantial evi- supported by dence in the of the whole record.” light

21 the that of its two arguments position advances support The FEPC of the decision should the of review rule govern scope evidence substantial is its (1) The FEPC an agency deriving adjudicatory It urges: in question. that its (2) and assuming the California Constitution even from powers derived, so fundamental vested of the rights are not adjudicatory powers not affected the decision. by were affected, evidence of the nature of the the substantial rights Regardless of decisions administrative rule defines the of review of statewide scope on which the Constitution has conferred adjudicating agencies specifically 7; (Bixby supra, 130, 141, Al Cal.3d fn. Martin v. powers. Bd., Appeals 287, 296]; Bev. etc. 52 Cal.2d coholic P.2d Cal. Ad 291 [341 (Cont.Ed.Bar) 5.63A, ministrative Mandamus 5.67 § Supp., [Jan. § 33].) The on which the theory FEPC bases its is a p. contention it state of constitutional is agency that the origin Industrial Department Relations was created the Legislature to the conferred pursuant powers it Constitution, 17½;6 California upon XX, article section the Fair Practices Employment Division is one of the nine divisions the comprising (Lab. Code, 56); the is § FEPC a subdivision of the department Division of Fair Employment (Lab. Code, Practices. 1414.) We are not § persuaded. is whether the FEPC is a constitutional not agency

The question Employment In Stearns v. Fair one of first entirely impression.

Com., 1155], court, 490 P.2d without elaboration, referred to of the FEPC as “of a findings state-wide administrative that lacks under the state Constitu agency judicial power tion, 205, 211.) . . (6 .” Cal.3d legislation FEPC establishing substantiates the view that the Commission’s is of adjudicating power leg islative rather than of constitutional In the California Fair origin. enacting (Stats. 121), Practice Act the act ch. which created YIVi, XX, Constitution, 6California provides: article section as amended in Legislature may provide wages “The general for the for minimum and welfare executive, employees purposes legislative, and for may those confer on a commission judicial powers.” and amendment, Legislature may, by appro- Prior to section read: “The legislation, priate provide wage and for the establishment of minimum women comfort, health, may provide safety general any minors for the welfare employees. provision and all No shall be construed as a limitation this Constitution Legislature upon authority any confer now or hereafter commission created, Legislature requisite carry power authority may deem out such as provisions of this section.” amendment, Com- preparing the 1970 the California Constitutional Revision In concisely the proposed “The section restates more substance mission stated: meaning, change the Section extended to existing except without provisions Revision Com. (Cal. all rather than women and minors.” Const. just employees Const.) Revisions of the Cal. part Proposed *8 22 its declared: “This and defined Legislature

the Commission powers, Code, 2, police div. shall be deemed an exercise of the pt. 4.5] part [Lab. welfare, of the health power the State the protection public prosperity, of of of (Italics (Lab. of the State California.” peace people supplied.) Code, 1411.) It did not to act under the to it purport granted by powers § XX, article section HV2 of the Constitution. The FEPC is therefore an of agency legislative its is not traceable to a origin adjudicatory power of the Constitution.7 (See Cal. Administrative Mandamus specific provision A, (Cont.Ed.Bar) A, 1974 app. p. Supp., app. [Jan. p.

Thus the of the rule turns on applicability independent judgment the nature of the affected the FEPC decision.8 The trial court right determined that the decision affected a fundamental vested of the right Hospital. the theoretical with that determination. In reviewing

We cannot agree Pierno, rule, Bixby our court in v. basis high for the independent 130, careful supra, Cal.3d that courts have undertaken judicial noted where administrative decisions affect individual substantially scrutiny but that in the area of economic due courts have minority rights process, and executive branches of to deal with legislative government permitted the economic and less social interference. judicial problems “[T]he courts have less to outmoded and to given rights emphasis property shibboleths (Bixby supra, 130, of freedom of contract.” v. XX, 7The directs FEPC our attention to the fact that article 17Vi of section Constitution, provides Legislature may as amended expressly that the confer on a carry “legislative, commission purposes established to out the of the section judicial executive and powers.” Legislature purport as the did not to act Inasmuch XX, Act, enacting article under section 17Vi in the Fair we Practice Legislature “judicial validly need not decide whether the could powers” confer pursuant the FEPC to the provision. constitutional journal suggest reviewing 8Two law articles a decision of the FEPC is court determining supported by limited to whether the are sub not stantial Commission’s evidence, if the accorded but can examine the evidence determine decision (The Stepchild weight with the Agencies, that evidence. FEPC: the State California 187, 193; Approach to Racial Discrimination 18 Stan.L.Rev. California’s 412-413.) however, articles, Employment, 5 were written U.S.F. L.Rev. Both Bixby. superior court prior to were decided The cases cited in articles S.F.R.R., Cal., Atchison, Jan. Super.Ct.L.A., T. & Civ. No. (Andrews v. Co., (FEP (FEP 60-B-037)]; Ramsey 60-A- v. T. H. Wilton No. SF-1 1962 [LA-1 Co., 60-A-215), (FEP 239); Guy apparently no F. Atkinson SF-3 McNeil v. No. Engineers Union etc. In International appeal ever taken from the decisions. Com., 47], Emp. author cited as Cal.App.2d Fair evidence, articles, independent judge, after an review the trial ity in one discrimination, reviewing court finding and the affirmed. upheld the Commission’s judge proper scope review question applied whether the trial Consequently, the decided. discussed nor was neither

23 is funda- the right whether 142.) Bixby determining observed “[i]n it, but the economic aspect the courts do not alone weigh mental the individual of it to of it in human terms and importance effect deter- 130, (4 144.) guidelines Cal.3d As general the life situation.” fundamental affects decision substantially whether an administrative mining made on a be that the determination must vested the court stated rights, no fixed rule basis and that the California case-by-case provides although formula, the rights it does in the function perform “precious protection 130, (4 146-147.) of the individual.” Cal.3d establish its to Bixby right employment Hospital’s guidelines,

Applying can in conditions of and to employment impose and procedures practices to vested right. right a fundamental While pursue termed sense be no Raich, (Truax v. is a fundamental right business or occupation a lawful 135, 7]; Purdy Fitzpatrick & v. 131, 36 33, S.Ct. 41 L.Ed. U.S. 239 [60 77, 645, 566, 456 P.2d California, Cal.2d 71 579 Cal.Rptr. [79 State of to conduct a business free of 1194]), there is no vested right 38 A.L.R.3d Pierno, Bixby supra, v. (see rales and regulations reasonable governmental Court, 145-146; Superior 130, Beverly Hills Fed. S. & L. Assn. v. 4 Cal.3d 306, 183]). claim that 316-317 259 Cal.App.2d Hospital’s [66 to establish its right it has a vested employment practices procedures (Day-Brite is based the discredited freedom contract. concept Missouri, Lighting, 421, 469, 472, Inc. v. 342 423 U.S. L.Ed. 72 [96 Parrish, 405]; 379, West Coast Hotel Co. v. S.Ct. 300 U.S. 392-393 [81 703, 708-709, 578, 1330]; L.Ed. 57 S.Ct. 108 A.L.R. Prudential Ins. Co. Cheek, 1044, 1051, v. U.S. 259 536 L.Ed. 42 S.Ct. 27 [66 A.L.R. Its vested is rendered even more tenuous right argument the fact that (a district). it is a local As such it is public agency hospital subject state laws in promulgating regulations governing Christian, and removal of (Raymond v. personnel. Cal.App.2d 536]; P.2d Cal.Jur.2d, 5.) Hospitals Asylums, § The court below erred in its exercising on the judgment independent of the evidence weight reviewing decision of the FEPC.9

II have been re result would remains whether a different question rule. This the substantial evidence in the case at bench under quired favor, argument that its deci is made 9 Sincethe FEPC found in Mrs. Keller’s no Our right employment. continue in her substantially affected fundamental sion her by a trial test preclude independent decision thus will not the use of the Keller’s reviewing employee in Mrs. court an FEPC decision unfavorable an position. whether findings to determine entire record review of the rule requires (Bixby evidence. substantial decision are an administrative supported v. 10; Inc. Enterprises, Boreta supra, fn. *10 Control, 85, Beverage 2 Cal.3d Cal.Rptr. Alcoholic Department [84 the evidence which 113, 1].) supports not isolate only 465 P.2d We may in the administrative relevant evidence other disregard finding Bd., 627, 638- Comp. App. (See LeVesque v. Workmen’s record. 639, Man 432]; Administrative fn. 22 463 P.2d Cal. Cal.Rptr. [83 hand, 5.75.) other neither (Cont.Ed.Bar) damus Jan. On the 1974 Supp., § we nor the trial court the Commission’s finding or overturn may disregard “ ‘for the that a would have reason it is considered that contrary finding ” Department (Boreta Enterprises, been or more Inc. v. reasonable.’ equally Control, 85, 94; Alco Bowman v. supra, 2 Cal.3d Beverage Alcoholic 652].) P.2d Board, 471-472 [340 etc. 171 Cal.App.2d Bev. holic mandamus an administrative proceeding issue in ultimate

The is “dis abuse of discretion its discretion. An abused the agency whether clearly against by not justified to an end purpose cretion exercised (Brown v. considered.” being circumstances reason, of the facts and all Schaub’s, 901]; Inc. Gordon, 666-667 240 Cal.App.2d [49 Control, P.2d Dept. Alc. Bev. Cal.App.2d record, is so lacking of the entire Unless the viewed in finding, light unreasonable, it it not be set aside. may as to render evidentiary support the Commission’s findings: The evidence following supports assurance from took leave of absence after only receiving Mrs. Keller a work; administrator as that she would be able to return the Hospital for she made herself available soon as she was released her physician, were then work but was denied on the that there reemployment ground non- no as thereafter were filled by openings; openings developed, they Indians; leave; non-Indian were rehired sick after extended employees there was no evidence that Mrs. Keller had an worker been unsatisfactory or was otherwise or unfit for From unqualified forego- reemployment. evidence, it be ing may inferred that the failure to reinstate reasonably Mrs. Keller was due to her race. who were the non-Indian per- employees explanation Hospital’s were were nurses who of absence after leaves return to work

mitted to because was not rehired was Mrs. Keller that the reason infers short supply admitted However, administrator Hospital not available. a was job as as November early made a 1970.” job “we could have possibly was not rehired that Mrs. Keller administrator indicated The Hospital she concern that board of directors her letter to the expressed because in a “doubt” that the letter discrimination. He testified put there be might it (e), makes Labor Code section subdivision his mind. specifically forbidden for unlawful to discriminate against person opposing practices Act or because he or she has filed a the Fair (e) with the Commission.10 Subdivision designed imple complaint basic discrimination in em ment the the act—elimination of objective it unlawful for an retaliate making against ployment—by employer the act. the accusation asserting granted by Although person right did not include an of a violation of sub against allegation Hospital (e), evidence that division administrator failed to rehire Mrs. Keller because her reference to “doubt” discrimination created a possible *11 in his mind was relevant to the of racial discrimination in charge employ irrelevant; ment. of Absence intent is what is discriminatory counts the Inc., effect Airlines, (Spurlock action. v. United employer’s 475 216, F.2d 218.) In the casé, circumstances of the the failure to present rehire Mrs. Keller because the administrator felt that to do so would be tantamount to an admission of discrimination resulted in a denial of a reemployment on account of privilege race.

Discrimination is practiced subtle and many elusive ways; rarely there evidence of and notorious open The discrimination. FEPC has been entrusted with the of duty the effectuating declared of the state to policy protect safeguard the rights seek, of all opportunities to persons obtain and hold without (Lab. Code, discrimination. 1411.) § It has been declared the Legislature seek, the obtain opportunity and hold employment without discrimination because of race is a civil (Lab. right. Code, 1412.) The § field in which special the Commission acts requires expertise developed through of investigation employment prac 11 tices in a procedures multitude of cases and If situations. there is a reasonable basis evidentiary for its it should not finding, be set aside simply because a contrary finding may to be appear reasonable. equally Upon review of the record, entire it is our conclusion that the Commis sion did not abuse its power finding the failure to rehire Mrs. Keller constituted racial discrimination in employment. 1420, (e), 10Labor provides: Code section subdivision “It shall be an unlawful

employment practice, or, upon occupational qualification, unless based a bona fide except where applicable security regulations based established the United States or the of State California: « “(e) any organization employer, employment agency discharge, For labor expel against any person opposed any or otherwise prac- discriminate because he has undpr complaint, tices forbidden this act or he has filed because testified or assisted any proceeding this part.” under FEPC, 337-342, Tobriner, of for a brief survey 11See 16 L. J. Hastings California the Commission’s activities its first five years operation. during there was evidence in the our determination that substantial In view of record to Commission’s finding, judg- of the whole light support be reversed with directions to enter a denying ment should judgment rule, of mandate. the substantial for writ Under evidence petition scope to that of a trial court’s decision is identical of the trial review appellate 149; Enterprises, v. supra, 4 Cal.3d Boreta Inc. (Bixby court. Control, Beverage 94-95; Department supra, Alcoholic Cal.3d Vehicles, Department Merrill v. Motor Cal. P.2d A with reversal directions Rptr. deny petition does not involve an of the trial court. usurpation fact-finding power

Disposition is reversed directions to enter judgment denying for writ mandate. petition J., P. concurred.

Kerrigan, Acting

KAUFMAN, J.I dissent. respectfully

The closes its scholarly majority to what eyes actually opinion happened case, in this reaches the of the of unnecessarily question proper scope and, worse, review of to FEPC make matters announces as proceedings of review which will proper necessarily which scope vary depending upon at the FEPC party hearing. prevails

Before it me to set forth to some addi- proceeding, appears appropriate tional facts not recognized the by majority. In to the prior 1970 Keller was episode, Mrs. sick leave granted on the she could understanding return to work on a only basis because the was to part-time laundry be renovated. Thereafter she to returned work on a basis and was part-time eventually fact, restored to full-time In she was employment. although reluctant to assume the Mrs. Keller was thereafter responsibility, appointed laundry that, It is supervisor. inconceivable with the connection present episode, Mrs. Keller was not because her reemployed of Indian ancestry, when one year previously, she was after sick leave and there- reemployed after promoted laundry I note also that 18 of supervisor. Hospital’s 140 are American employees Indians. case becomes when one

What in this actually apparent happened quite FEPC, the full text of reads the and of the which is findings decision (infra), Based on attached hereto as A. arithmetic the faulty Appendix had FEPC decided Northern failed to satis- Inyo implement (see IV) and aifirmative action III-B. and decided factory findings program

27 such a of by holding hospital the establishment program to encourage III-B., V). (see case IV findings to Mrs. Keller in liable present of the scope proper to reach question case in this unnecessary It is FEPC, find- of the the As I read review of FEPC proceedings. of IV, find- finding degree a considerable V is made ing depend the substantial one whether employs the evidence IV is not ing supported IV Finding begins test. evidence test or the independent judgment California, has a the situs of population Hospital, Bishop, premise whom are American 3,000 about one-third of persons, approximately Indian was that the population evidence Indians. The uncontradicted California, Indian Res- including surrounding Bishop the area Bishop, areas, ervation, was 900 surrounding City persons, Bishop, was that the reservation. The uncontradicted evidence whom 825 lived on 9,000 the total of the immediate vicinity population Bishop persons. of American Indians to non-Indians is therefore 10 per- percentage cent, not one-third as found the FEPC.

Were it to reach the review necessary question proper scope of FEPC I hold that would of who before proceedings, regardless prevailed FEPC, of review is review. appropriate scope independent In the first that that of review is the one is place, scope proper implied Com., (See several cases. Stearns v. Fair Employment Practice 211 Bixby P.2d v. Cal.Rptr. [98 [citing 1155] (93 Cal.3d 130 242)]; 481 P.2d International Union etc. Engineers Com., Emp. Fair Cal. Cal.App.2d Rptr. *13 fundamental, that no as are the majority certain I am not so

Secondly, case, Bixby to the the criterion was Prior is here involved. vested right (See was vested. Merrill e.g., affected or involved the right whether or not Vehicles, 89, 71 Cal.2d 458 Cal.Rptr. Motor 907 Department [80 v. Goodcell, 1035, P.2d McDonough 13 Cal.2d 741 123 33]; v. [91 P.2d 1205]; Optometry, 831 v. Cal. St. Bd. 19 Cal.2d Laisne [123 A.L.R. 80-86.) I (Cont.Ed.Bar) do 457]; Mandamus pp. P.2d Cal. Administrative the old rule Bixby as restricting understand the extensive dicta not Indeed, “in also fundamental. be right adding requirement to fundamental jus- is basic and sufficiently whether the right determining the degree have considered review, the courts tify judgment independent ‘vested,’ is, the individual.” is already to which that right possessed 146; Bd. v. State supra, at see also (Bixby v. Toczauer p. 211].) Registration, 20 1069 Cal.App.3d [98 Moreover, what arises at do we ascertain the question point right involved or affected. When the case was being in the present pending mandate, court on for writ of it was not alone superior Hospital’s petition to have of its own that was right employees choosing involved Hospital’s or affected. The court would affect ruling Mrs. superior necessarily Keller’s to free of racial right discrimination as well. What holds is that FEPC, since Mrs. Keller majority before the prevailed whereas, substantial evidence review is if had proper; Hospital prevailed at the FEPC an hearing,1 review judgment would be independent proper. Thus, the makes the majority review scope which dependent upon party before the FEPC. Such a rule prevailed does not commend itself to me. If review has all, merit at independent any it should be applied to of the FEPC. The proceedings FEPC is not an impartial adjudicatory It is body. charged enforcement of the California Fair Employ- Code, ment Practice (Lab. Act. 1419.) case, As in the § it acts present both as the accuser and the adjudicator. an Although independent hearing officer is to at employed preside it is the adjudicatory hearings, Commission that renders the decision. The and decision of the FEPC in the (see case present A) are reminiscent Appendix so much as nothing out of the chapter Spanish The status Inquisition. procedure FEPC out cry review of independent judicial FEPC deci- adjudicatory sions.

As to the FEPC’s contention that the uncontradicted evidence discloses a violation of Labor Code section subdivision (e), it is sufficient to note that no violation of this subdivision of section 1420 was charged, never called to defend upon such a against “The charge. rule is well settled that the theory which a case is tried must be ad- hered to on A appeal. not party permitted his change position a new and adopt different on theory To appeal. him do so permit would not be only unfair to the court, trial but manifestly unjust the opposing (Ernst litigant.” Searle, 218 Cal. 715]; 240-241 Gyerman P.2d Co., V. United States Lines Cal.3d [102 Cal.Rptr. P.2d I would affirm the judgment of the trial court. *14 argument employer prevails 1We were advised at oral never at formal proceedings, groundless complaints FEPC because are weeded out and eliminated

investigation to the prior proceedings. advent of formal Appendix A Employment Practice Commission Before Fair of the of State California ) Case No. FEP 70-71 B6515 the Matter Accusation

In , ) of ) L-1319 Inyo ) Hospital, Northern )

Respondent. ) )

_______.)

Decision regularly hearing Employment This matter came on for before the Fair Practice California, California, 18, 1972, Angeles, May Commission of the at Los State on Marón, at the Hearing hour 9:30 a.m. Milford A. Officer of the Office of Admin- Wilson, Counsel, Hearings, presided. appeared istrative E. Charles on behalf of the Employment Respondent, Inyo Hospital, Fair Practice Commission. The Northern Smith, represented by Esquire, During Willis its Counsel. the entire proceedings quorum Employment present, consisting of the Fair Practice Commission was Gherini, Chairman, Montgomery, Pier Evidence Practice Commission makes the and C. L. Dellums and Catherine L. members. received, having documentary both Employment oral and been Fair following findings of fact:

I capacity Accusation her official as A. Stella C. Sandoval made the in Commissioner Employment Practice for Fair Commission. 16, 1971, Keller, January Complainant, filed a verified com- On Louise written B. Commission, alleging plaint with the Fair that she had been ancestry against by Respondent solely because of her in violation of discriminated Code, 1420(a) pre- violation occurred within the Labor and that said Section ceding year. one II entity Inyo Inyo public is a of the Northern Hospital, Northern Respondent, District, of the State of County thereby political and is subdivision Local facility hospital at its employer persons of 140 Respondent The is California. was, Indian, per- all times is and at Complainant, an American Bishop, California. herein, laundry employee or Respondent as qualified reemployment tinent in capacity. another unskilled III Policy Public obtain, seek, without discrimination hold and opportunity A. The right. as a civil recognized of California ancestry in the State of race or because denying employment practice State declares public policy this race, religious discriminating employment because of the terms of and opportunity, unrest, and creed, strife and color, origin, ancestry, sex foments domestic national advancement, and development for its community capacity of the fullest deprives the employers, and the employees, the interests of substantially adversely and affects public protection of the general. policy is for the of this The enforcement public therefore, liberally State, is, health, viewed welfare, peace of the prosperity, purposes. such accomplish *15 Employment B. The that mere Fair Practice Commission believes more than Act is passive compliance Employment with of Practice the letter the California Fair thus, for a to of the calls accomplish purposes; spirit essential in order dynamic its the law by em- comprehensive program and affirmative action to be sustained of employer high the ployers priority on a This all the more be true when basis. should public public agency with responsibilities. is a entrusted

IV Program Action Affirmative California, of Bishop, hospital, approximately the has a population the situs of 3,000 Respondent’s ethnic persons, of are American Indians. about one-third whom 17, 1971, (24) twenty-four of its staffing as established that pattern of of October eighteen 17.1%, only minority groups, while employees, or were members of (18), the cate- supervisory In employees or of these were American Indians. 12.8% 4%, (1) (25) was a or twenty-five supervisors, gories only minority Respondent’s one of placing raw are helpful These statistics and Indian. member an American Re- and out points context Finding V within an understandable the facts found in program in elightened affirmative action [sic] establish an spondent’s reluctance to policy. with accordance State

V Gravamen Respond- Complainant, long-term employee A. The evidence established that a of ent, 17, 1970, granted August was the medical leave of absence on or about with understanding she which she position that would be entitled to the first for available qualified. was 28, 1970, again Complainant reemployment, B. On October available for became again was first by Respondent reassured she be rehired when the would which position developed. positions developed available she was time have for Since to re- qualified, positions. but The failure others have been hired said employ Complainant solely ancestry. due to or her race fact, Commis- foregoing the the Fair Pursuant to following sion makes the determination of issues: Respondent, Inyo Hospital, political subdivision of State Northern Keller, California, solely because against Complainant, Louise has discriminated 1420(a) of the Labor Code ancestry of her race or violation of Section State of California. Wherefore, Following ^[*] ^[*] Order ^[*] ^[*] hereby made: ^[*] ^[*] Inyo The Respondent, political Hospital, Northern subdivision of the State of California, agents employees, and its engaging shall cease from and desist acts Keller, against Complainant, solely discrimination Louise because her race ancestry, $2,982.40, being shall to pay Complainant forthwith said sum wages chargeable reasonably legally that sum tion lost and discrimina- unlawful Respondent practiced by Complainant.1 on Code, hereby 1426 of Labor reference is compliance In Section made would Although Complainant also be entitled reinstatement under this record, therefore, and, accepted employment, has since other does seek such she not original.] relief. [Fn. in *16 Section 11523 of the Procedure, of Civil Government Code and 1094.5 of the Code Section rights prescribe any adversely which appeal party affected thereby. day

This Decision shall effective July, become on the 10th 1972. Jan., Is day

It so Ordered this 10th 1972.

Fair Practice Commission By- Cherini, Pier Chairman MAM:bsh