Jenkins v. County of Riverside

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-SVW

COUNTY 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

1633

JENKINS v. COUNTY OF RIVERSIDE 1635

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-

1636 JENKINS v. COUNTY OF RIVERSIDE

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

1

Although 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.

2

As 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)).

JENKINS v. COUNTY OF RIVERSIDE 1637

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

3

As 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).

1638 JENKINS v. COUNTY OF RIVERSIDE

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

4

Jenkins abandoned her other two claims by not raising them in opposi-

tion to the County’s motion for summary judgment.

JENKINS v. COUNTY OF RIVERSIDE 1639

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-

1640 JENKINS v. COUNTY OF RIVERSIDE

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-

JENKINS v. COUNTY OF RIVERSIDE 1641

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.”).

1642 JENKINS v. COUNTY OF RIVERSIDE

[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,

5

In 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.

6

We 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.

JENKINS v. COUNTY OF RIVERSIDE 1643

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.