United States v. 2005-02-08 | 03-55412 | JENKINS VCOUNTY OF RIVERSIDE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 EVELYN JENKINS,
Plaintiff-Appellant, No. 03-55412
v. D.C. No.
 CV-99-05476-SVWCOUNTY OF RIVERSIDE; KENNETH B.
COHEN, in his official capacity, OPINION
Defendants-Appellees. 
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
December 10, 2004—Pasadena, California
Filed February 9, 2005
Before: James R. Browning, Harry Pregerson, and
Marsha S. Berzon, Circuit Judges.
Per Curiam Opinion
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COUNSEL
Diane Catron Roth, Roth & Roth, LLP, Riverside, California,
for the plaintiff-appellant.
Christopher D. Lockwood, Aris, Lockwood, & Gray, San
Bernardino, California, for the defendants-appellees.
OPINION
PER CURIAM:
Plaintiff-Appellant Evelyn Jenkins alleges, in this § 1983
suit, that Defendant-Appellee County of Riverside (“the
County”) deprived her of her property right in continued pub-
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lic employment in violation of the Fifth and Fourteenth
Amendments when she was summarily terminated in 1998. A
prior panel of this court concluded that Jenkins would prevail
on such a claim so long as she was a “regular” employee at
the time of her termination. See Jenkins v. County of River-
side, 25 Fed. Appx. 607, 609 (9th Cir. Jan. 7, 2002) (unpub-
lished decision) (Jenkins I) (citing Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564 (1972)).1 For the second time,
this court is asked to determine whether Jenkins was a “regu-
lar” or “temporary” employee of the County as defined by
sections 1(t) and 1(v), respectively, of County Ordinance 440,
the “Riverside County Salary Ordinance.”
[1] The first panel to consider this question held that a gen-
uine issue of material fact existed as to whether Jenkins was
“qualified” for regular employment within the County and
remanded to the district court for further discovery. See id. at
610. No other deficiency in the record was identified. The
prior panel’s holding that the “qualification” question is deter-
minative is the law of this case. See S.F. Culinary, Bartenders
& Serv. Employees Welfare Fund v. Lucin, 76 F.3d 295, 297
& n.3 (9th Cir. 1996); Ninth Cir. R. 36-3(b)(I). Though we
have limited discretion to decline to follow the law of the
case, none of the factors justifying such a departure apply
here. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1393
(9th Cir. 1995).2 Disposition of this appeal therefore turns
1Although Jenkins I is the law of this case, nothing in this opinion alters
its status as an unpublished disposition, not citeable under Circuit Rule 36-
3. 2As Leslie Salt explained:
The law of the case doctrine is not an absolute bar to reconsid-
eration of matters previously decided. The doctrine “merely
expresses the practice of courts generally to refuse to reopen what
has been decided, not a limit to their power.” Thus, the court may
reconsider previously decided questions in cases in which there
has been an intervening change of controlling authority, new evi-
dence has surfaced, or the previous disposition was clearly erro-
neous and would work a manifest injustice.
55 F.3d at 1393 (quoting Messenger v. Anderson, 225 U.S. 436, 444
(1912)).
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entirely on whether Jenkins was, in fact, “qualified” for regu-
lar employment. Because we hold that she was so qualified,
we reverse and remand for further proceedings.
I. Background
Jenkins was hired by the County as an “Office Assistant II”
(“OA-II”) on May 14, 1992. As the deposition testimony of
her supervisor makes clear, she was hired to work at a local
hospital to “clean up a tremendous backlog of fetal monitor-
ing strips which were piled in the hospital’s basement,” “fin-
ished that task within a few months and less than six months
after she was hired,” and when she completed that task, was
“trained and assigned with the rest of the regular staff to per-
form the ongoing work of the [nursing] department.” As the
district court stated, “[i]t is undisputed that the position Plain-
tiff held was designated a temporary position, and at all times
Plaintiff was designated a temporary employee. Plaintiff
worked full-time and continuously in this position until her
termination on or about May 26 or 27, 1998.”
While employed as an OA-II, Jenkins consistently received
exemplary performance reviews and worked well in excess of
the annual 1,000-hour ceiling that County Ordinance 440
placed on temporary employees.3 During her employment at
3As here relevant, the Ordinance provides:
No temporary employee shall be permitted to work in the same
capacity in which he/she performs substantially continuous ser-
vice for more than 1000 working hours (approximately 6 months
of full time service) during any one fiscal year. In the event that
a department head has unusual circumstances to warrant employ-
ment of a temporary employee for a longer period, the depart-
ment head may request approval on the Board of Supervisors’
agenda, prior to the employee working more than 1000 hours in
the fiscal year. The request to extend the service shall set forth
the justification, the hire date of the temporary employee, and the
number of hours requested in the extension. Any additional
extension shall require further Board of Supervisors’ approval
annually, prior to the employee working 1000 hours in that fiscal
year.
County Ordinance 440 § 12.C(3).
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the hospital, Jenkins applied for regular employment seven
times. On four of those seven occasions, Jenkins passed the
written examination required of all civil service applicants.
Each time she passed the exam, she was interviewed for a reg-
ular position but not offered one.
On May 26, 1998, Jenkins was summarily terminated. She
claims that her termination came less than six hours after she
turned in a doctor’s report related to a worker’s compensation
claim that she had initially filed in 1996 and suggests a con-
nection between the two events. Regardless of the reason for
her termination, however, the parties do not dispute that it was
without cause, without notice, and without a hearing.
In her amended complaint, Jenkins alleged that the County
deprived her of her property right in continuing public
employment, in violation of 42 U.S.C. § 1983; violated the
California Fair Employment and Housing Act, Cal. Gov.
Code §§ 12,900 et seq., in terminating her on the basis of her
disability; and violated the Meyers-Milias-Brown Act, id.
§§ 3500 et seq., by breaching her employment contract.
Reaching only the § 1983 claim,4 the district court, upon
cross-motions for summary judgment, ruled in the County’s
favor, finding that Jenkins never acquired the status of a per-
manent employee, nor was she ever “qualified” for such sta-
tus. As discussed above, a panel of this court reversed the
district court’s decision in a memorandum disposition,
remanding to allow Jenkins to proceed with discovery and
provide evidence in support of her claim that she was, indeed,
qualified for a regular position.
On remand, and after discovery, the district court reached
the same conclusion again. Relying on California cases
described in more detail below, and summarizing the time line
4Jenkins abandoned her other two claims by not raising them in opposi-
tion to the County’s motion for summary judgment.
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of Jenkins’ failed attempts to obtain regular employment sta-
tus, the court held that the only evidence before it “conclu-
sively indicates that Plaintiff was not qualified to obtain a
permanent position.” The court opined that “the only explana-
tion for [Jenkins’] failure to acquire a permanent position is
that she was not selected for a regular position because she
did not measure up to the other applicants who were select-
ed,” (internal quotation marks omitted). According to the dis-
trict court, Jenkins’ failure to complete two “requirements” —
being offered a regular position and completing a fixed proba-
tionary period during which she would have been employed
“at-will” — was fatal to her claim that she was “qualified” for
a regular position. This timely appeal followed.
II. Analysis
[2] The district court’s analysis reads “qualified” too nar-
rowly, in light of extant California case law. Jenkins estab-
lished the facts that she (a) passed the written civil service
examination; (b) was interviewed for a regular position, indi-
cating that she scored very high on the examination; (c) took
a temporary position; (d) exceeded the limits the Ordinance
placed on the number of hours a temporary employee could
work; and (e) was reviewed, successfully, as if she were a
probationary employee. These factors, taken together, indicate
that she was, indeed, “qualified” for regular employment.
The result here is compelled by the California Supreme
Court’s only pertinent decision, Villain v. Civil Service Com-
mission of San Francisco, 117 P.2d 880 (Cal. 1941), and by
the District Court of Appeal’s decision in McGillicuddy v.
Civil Service Commission, 24 P.2d 942 (Cal. Dist. Ct. App.
1933).
[3] McGillicuddy concerned trackmen employed by the
City and County of San Francisco who brought suit challeng-
ing their removal without cause from civil service positions
that were designated “temporary appointments.” The Califor-
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nia Court of Appeal found conclusive “that respondents’
names appeared on the eligible list, and that each was
appointed therefrom after certification by the commission,
and that each had been employed continuously in his position
for a long period of time before removal.” McGillicuddy, 24
P.2d at 943; see also id. at 943-44 (“As respondents had
worked in such positions in excess of the maximum proba-
tionary period fixed by the charter, their appointments were
to be ‘deemed complete’ within the meaning of the old char-
ter.”). The court’s decision was based on an earlier — and
materially different — version of the San Francisco charter
than that at issue in Villain, see 117 P.2d at 883-84 (distin-
guishing McGillicuddy). Nevertheless, its underlying conclu-
sion is pertinent here:
[T]he commission had no power to adopt a rule
whereby positions which were neither temporary in
fact nor temporary by the law of their creation could
be designated temporary, thereby preventing the eli-
gibles appointed thereto from acquiring permanent
tenure after serving through the probationary period.
. . . Under such a rule as interpreted by the commis-
sion, the appointing power could absolutely prevent
eligibles from acquiring a permanent status merely
by following the procedure adopted in the present
case. Regardless of the true nature of the position or
the length of time the appointee had served, such
appointee could be removed at will, according to
appellants’ theory, without cause and without a hear-
ing merely because he had been appointed to a posi-
tion designated under the rule as “temporary.”
24 P.2d at 944.
Villain did not take issue with this analysis, but instead dis-
tinguished McGillicuddy on its facts. At issue in Villain were
temporary stenographer positions offered to four individuals
by the City and County of San Francisco in 1934. The plain-
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tiffs had taken the written civil service examination, and, out
of 225 individuals who passed the written examination, they
ranked 177, 191, 202, and 224. At the time, the San Francisco
charter required that civil service positions be offered to the
highest-scoring person on the list of those who passed the
written qualifying examination. See Villain, 117 P.2d at 881.
The question before the California Supreme Court was
whether the plaintiffs, who were initially hired to temporary
positions, had effectively become permanent civil service
employees and therefore safe from termination without cause.
The plaintiffs’ low ranking on the eligibility exam was cen-
tral to the Villain court:
Had the positions been classified as permanent,
plaintiffs would not have been certified to them, for
it is admitted that at the time of certification there
were approximately fifty eligibles whose names pre-
ceded those of plaintiffs on the civil service list, a
great number of whom would undoubtedly have
been willing to accept the positions, if offered to
them as permanent employment. It was solely by
reason of the fact that the positions were temporary,
that the plaintiffs, although among the lowest 25 per
cent on the eligible list, were able to secure a place
upon the city and county payroll.
Id. at 881-82; see also id. at 883 (“[H]ad the positions been
permanent, they would not have been eligible for appointment
to them because of the many candidates with higher rating on
the civil service list.”). Also of importance to the court in Vil-
lain was the fact that the plaintiffs had not attempted to con-
vert their status from temporary to permanent, even though
they had several opportunities to do so. See, e.g., id. (“During
the period in question at least two of the plaintiffs were given
notice by the commission that they might apply for permanent
positions at a salary of $100 a month, but they failed to
respond.”).
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[4] Applying Villain and McGillicuddy, the parties do not
dispute that Jenkins worked far more hours than the maxi-
mum authorized for temporary employees. Nor do they dis-
pute that Jenkins passed the written civil service examination
on several occasions. Nor do they dispute that, in several
instances, Jenkins was interviewed for a permanent position,
reflecting the fact that her score on the written civil service
examination was high enough to qualify her for a permanent
position. Unlike the ordinance in Villain, County Ordinance
440 does not require that jobs go to the very highest scoring
applicants; the hiring agency can choose from among those
who attain high scores, and, in this case, chose Jenkins for
interviews based on her high scores on several occasions.5
That it would have been permissible to hire an applicant under
the applicable rules is all that California law requires for an
applicant to be considered “qualified” for a permanent civil
service position.6 Compare, e.g., Welch v. City of Long Beach,
5In its petition for rehearing, the County represents for the first time in
this litigation that the interview was an “oral test,” and that only the person
“identified as the top candidate” would be offered a position. Because Jen-
kins was never the “highest scoring” candidate on this “test,” the County
maintains, she was never “qualified” for regular employment. Nothing in
the record, however, including the evidence cited by the County, indicates
that the choice among candidates interviewed for the OA-II position is
based on objective, quantifiable standards. Instead, the “top candidate” is
the person chosen from the interviews, nothing more. To call that person
the only one “qualified” is to deprive the concept of de facto “regular”
employees of any meaning; under that approach, no person not actually
hired as a regular employee could ever be “qualified” to be a regular
employee.
In the analogous context of Title VII, we have held that meeting the
objective criteria for a position is sufficient to satisfy the “qualified” prong
of the test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), without regard to subjective hiring decisions. See, e.g.,
Lynn v. Regents of the Univ. of Cal., 656 F.2d 1337, 1342 (9th Cir. 1981).
The California case law supports the same approach here.
6We note, again, that our reading of California law is constrained by the
law of the case. We are not today deciding that showing that an employee
was “qualified” is enough, standing alone, for that employee to claim de
facto “regular” employment status. Rather, we address that factor alone
because it is the one left in dispute after the earlier appeal.
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241 P.2d 26 (Cal. Dist. Ct. App. 1952), Matherly v. Allen, 194
P.2d 18 (Cal. Dist. Ct. App. 1948), Ticknor v. City of Sacra-
mento, 181 P.2d 893 (Cal. Dist. Ct. App. 1947), Campbell v.
Bd. of Civil Serv. Comm’rs of the City of L.A., 173 P.2d 58
(Cal. Dist. Ct. App. 1946), and Nilsson v. State Pers. Bd. of
Cal., 78 P.2d 467 (Cal. Dist. Ct. App. 1938), with Villain, 117
P.2d at 881, and McGillicuddy, 24 P.2d at 943-44.
The remaining reason given by the district court for con-
cluding that Jenkins did not qualify for a regular position is
that regular employees must pass a six-month probationary
period before their employment is no longer at-will. As Jen-
kins notes, however, “[s]he was given the 3-month, 5-month,
and 12-month performance reviews given to probationary
employees, and thereafter given annual performance evalua-
tions as are regular employees who have obtained permanent
status.” Given that Jenkins was employed in her position for
over five-and-a-half years, and given that she qualified for a
regular position at least six months ago, the fact that the
county has consistently reviewed her performance in the exact
manner in which it reviews that of de jure “regular” employ-
ees is sufficient to satisfy the probation requirement.
[5] As Jenkins was “qualified” for a regular position under
California law, for purposes of this case she was a de facto
“regular” employee within the meaning of County Ordinance
440 at the time she was summarily terminated. Because she
established that she was a de facto regular employee under the
Ordinance, she had a property right in continued public
employment under the Fifth and Fourteenth Amendments. As
the district court noted, the property right question was the
only disputed liability question; if she had a property right,
then “the County violated [Jenkins’] due process rights by ter-
minating her employment without notice or a hearing.” Jen-
kins was therefore entitled to summary judgment as to the
violation of her due process rights.
REVERSED and REMANDED.
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