Gensler v. Bd. of Trustees of the South Orange Community College Dist.

Filed 1/30/07 Gensler v. Bd. of Trustees of the South Orange Community College Dist. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gail Andrea Andler, Judge. Affirmed.

Howard Gensler, in pro. per., for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Mary L. Dowell and David A. Urban, for Defendant and Respondent.

Howard Gensler is a tenured professor at Saddleback College. He appeals from a judgment that denied a petition for a writ of mandate. The petition sought to compel the Board of Trustees of the South Orange County Community College District (District) to assign Gensler six courses during the 2006 summer session. Gensler argues the District breached the faculty employment contract when it assigned three of those courses to part-time faculty, since he stood ready to teach them. We cannot agree, and so affirm.

* * *

In January 2006, Gensler told his department chair (Allanah Rosenberg) that he would like to teach as many courses as possible during the 2006 summer session.[1] Rosenberg prepared a recommended schedule that assigned four courses to Gensler and sent it to the Dean of the Social and Behavioral Sciences Division, Patricia K. Flanigan.

Flanigan modified the schedule and gave Gensler three courses. Before doing so, she consulted with Rosenberg. Flanigan made the change to better match the summer enrollment patterns and classroom availability, and to ensure students a greater selection of professors. . . . I fully considered Gensler for all open summer positions, and decided upon an assignment that well-suited the College. She explained the division traditionally limits faculty to three courses during the summer term. This avoids overloading faculty, since summer class sessions are longer than those during the regular year, and it also gives students the opportunity to choose among faculty members offering the same course. There are some exceptions, such as unusual scheduling, student, or other needs, for example unusual student demand for a particular class or instructor.

Upon learning of the schedule, Gensler asked Flanigan to give him three additional classes. She refused and assigned them to part-time faculty. Flanigan explained that she had turned down Gensler for the same general reasons the assignments were originally made: to bring Gensler within the three-course maximum

. . . and to allow students a choice of professors . . . . Flanigan said full-time faculty do not in common practice have a right of first refusal on all classes offered, and [i]t certainly does not constitute a standard practice to assign full-time faculty every summer class they request, notwithstanding the interests of students and reasonable limits the college places on the number of classes faculty can teach.

Gensler protested the decision in informal meetings with the colleges vice-president, president, and what he described as the [d]istrict [a]dministration, but all upheld the schedule. The instant petition for a writ of mandate (Code Civ. Proc.,  1085) followed on March 30, 2006.

The petition set out a single claim for breach of a clause in the South Orange County Community College District Academic Employee Master Agreement 2004-2007 (employment agreement) that provides as follows: The Dean will give first consideration to full-time faculty members for additional assignments such as overload, summer session, special projects. The petition alleged Gensler was a full-time faculty member, six courses were available for the 2006 summer session, Gensler made a timely request to teach all six, and the District had a ministerial duty to assign them to Gensler before offering any to part-time faculty. Gensler alleged he exhausted all administrative remedies, and he had no adequate remedy at law. A writ of mandate was sought to compel the District to assign the six courses to Gensler for the 2006 summer session. The trial court issued an alternative writ that directed the District to show cause why it should not give Gensler the requested courses.

The Districts answer denied Gensler was entitled to teach six courses and denied he exhausted the administrative remedies provided for in the grievance process that was a part of the employment agreement. As affirmative defenses, the District alleged failure to comply with the grievance process, and that the Dean had discretion to assign and approve faculty work loads, among others.

The matter was tried on declarations. The Districts evidence is as set out above. Gensler offered two declarations of his own and several third party declarations. Neither of Genslers declarations was signed, and the trial court sustained the Districts objections to them. Genslers first declaration essentially set out the same operative facts presented by Flanigan. It went on to declare the standard teaching load at Saddleback College for full-time faculty is 15 hours of instruction per week, 10 more hours may be assigned, and Gensler regularly taught a 24-hour-a-week load. The second Gensler declaration alleged Flanigan and Rosenberg were biased against him, delving into faculty politics to explain how this came to be.

Genslers third party declarations came from three former or current professors and administrators. Myron Simon said it was standard practice for colleges and universities to give priority to full-time faculty in [s]ummer courses over part-time faculty. Armando Ruiz said the same thing, adding the District has always followed that practice. Walter G. DeAguero declared the Districts practice is to assign summer courses to full-time faculty first and then to offer the remaining courses to part-time faculty.

The trial court found the grievance process was not mandatory, so Genslers failure to file and pursue a formal grievance was not a bar to legal relief. On the merits, it found nothing in the contract language provides that full-time faculty have a right of first refusal or other automatic entitlement to teach as many courses as they wish. Judgment was entered for the District, denying the petition.

I

The District argues the appeal must be dismissed because the notice of appeal was filed before judgment, and because it is moot since the 2006 summer session is long past. We disagree.

A reviewing court may treat a premature notice of appeal as filed after entry of judgment. (Cal. Rules of Court, rule 8.104 (e)(2).) Since there is no claim the District was misled or otherwise prejudiced by the premature filing, we exercise our discretion to treat the notice of appeal as timely filed. Likewise, even where a matter is technically moot, an appellate court has discretion to decide the case where the issue is one of continuing public interest. (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d. 858, 868-869, fn. 8.) Since the instant issue may well arise in setting future summer schedules at Saddleback College, we believe it is significant enough to warrant our consideration and decision. The request to dismiss the appeal is denied.

II

The District also contends the appeal should be dismissed on procedural grounds, because mandate does not lie and Gensler failed to exhaust his administrative remedy. Again, we decline to do so.

The District argues Gensler is seeking to compel it to exercise its discretion so as to allow him to teach six courses, and mandate does not lie for this purpose. It is right on the law, since in general, mandate lies only to compel the performance of a ministerial duty, but not the exercise of discretion (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002.) But this point was not raised below, so it was waived. The request to dismiss on the ground that mandate is not the appropriate remedy is denied.

The exhaustion argument is that Gensler was required to follow the grievance procedure set out in the employment agreement prior to filing suit, and he did not do so. But, in our view, the grievance procedure is permissive, not mandatory.

The grievance procedures are found in article XXV of the employment agreement. A grievance is defined as a formal written allegation by a grievant who alleges a violation, misapplication or misinterpretation of a specific article, section of provision of this Agreement. (Art. XXV,  I.) But one need not follow the grievance route. The procedure states that [p]rior to filing a grievance . . . , the grievant is encouraged to discuss the potential grievance with his/her dean or appropriate supervisor . . . with intent to resolve the grievance informally. [] If the grievant is not satisfied with the disposition of the potential alleged grievance at the informal level, the grievant may file the grievance . . . . (Art. XXV,  I (E), italics added.)

As we read the grievance procedure, a faculty member may attempt informal resolution, and if that fails, he may choose to file a formal grievance and go forward under the procedures set out (which we have not summarized here). But by stating that a grievant may file a formal grievance if dissatisfied with informal resolution, the employment agreement leaves the grievant with another option, the one chosen by Gensler filing suit. A grievant who has tried to resolve his problem informally may file the grievance formally, or he may file a lawsuit.

The District is probably right that grievance procedures are mandatory even where the language is permissive (see Ruiz v. Sysco Food Services (2004) 122 Cal.App.4th 520, 532), but it is not clear to us and we need not decide the issue in light of our resolution on the merits.

III

In this ordinary mandate proceeding, we do not reweigh the evidence or substitute our judgment for that of the administrative body. Rather, we review to make sure the decision was not arbitrary or capricious. A court will uphold the agency action unless the action is arbitrary, capricious, or lacking in evidentiary support. A court must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. [Citation.] (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1786.)

IV

Gensler argues the Dean must satisfy all full-time faculty requests for courses before offering any course to part-time faculty. His theory is that this is the meaning of the first consideration language, which is sufficiently clear to require no further elucidation or argument. But it is not clear to us, and Genslers ipse dixit hardly makes it so.

The provision could just as easily mean that as between two similarly situated faculty members say, a full-time faculty member and a part-time faculty member, each of whom is teaching the same number of courses the school should favor the full-time faculty member. That is the interpretation that strikes us as more reasonable. We see nothing in the phrase first consideration that is so clear as to require us to find that a school district must abandon its duty to consider the interests of the students and the school in favor of allowing a faculty member to schedule a mountain of summer or special session classes.

The governing contract is the South Orange County Community College District Academic Employee Master Agreement 2004-2007. The full agreement is not in the record, nor the portion that describes the contracting parties, but both sides agree it controls this dispute, and we shall assume that is so for purposes of this case.

The dispositive provision is article XIV, part I, entitled Right of Assignment, which provides as follows. A. The Dean has to right to assign and/or approve each full-time faculty members workload. . . . [] B. The Dean has the right to assign and approve each part-time faculty members workload and particular assignment(s). [] C. The Dean will give first consideration to full-time faculty members for additional assignments such as overload, summer session, special projects.

Reasonably read, the right of assignment clause means the Dean must consider full-time faculty requests for summer courses before those of part-time faculty, but ultimately the Dean has discretion to decide how many courses a full-time faculty member may teach during the summer session. That is the only way to give meaning to both the Deans right to assign and approve full-time workloads, and the requirement that the Dean give full-time faculty first consideration for summer courses.

The Deans reasons for turning down Gensler are reasonable and that is all that matters it is not our role to second-guess that decision or say what we might have done. Flanigan declared the traditional summer session limit is three courses per instructor, to offer students a choice among professors and avoid overloading instructors who teach longer classes in a shorter time than during the regular term. These are reasonable considerations. Flanigan fully considered Gensler for all open summer positions, but reduced his load to three courses to better match the summer enrollment patterns and classroom availability, and to ensure students a greater selection of professors. While not the only factors one might take into consideration, there is nothing here that is arbitrary or capricious.

And the decision is supported by the evidence. The Dean was required to give Gensler first consideration for 2006 summer courses, and she did. Flanigan considered Genslers course request for the 2006 summer session twice, before anything was offered to part-timers. The first time, Genslers preferences came along with Rosenbergs tentative schedule that would have given Gensler four courses in response to his request for as many classes as possible. After Flanigan pared that down to three courses, she again considered Genslers direct request that she assign him three more courses. So there is no evidentiary basis to set aside the administrative decision in this case.

Gensler argues it is the standard practice in colleges and universities

to give full-time faculty priority in summer assignments, citing statements to that effect in the Simon and Ruiz declarations. But that is not what the evidence shows.

Neither the Simon nor Ruiz declarations explains what the declarant meant when saying full-time faculty are given priority. Neither said there is a right of first refusal, nor that full-time faculty members always get as many courses as they want. On the other hand, Flanigan declared there is no right of first refusal and no right to an unlimited teaching load. The Districts decision was, while not incontrovertible, supported by substantial evidence.

Gensler also contends he was entitled to the six courses under a department rule that full-time faculty would be given first choice of classes, after which part-timers would be able to indicate preferences. We cannot agree.

According to a declaration from Professor Sherry Miller-White, the department procedure was that [t]he schedule would . . . be given to the full-time faculty who would select their classes first. Then the part-time faculty would be allowed to select from the classes that were left over. But this rule did not alter the Deans right to set faculty workload, so it does not help Genslers case.

At bottom, Gensler confuses the right of full-time faculty to first consideration in selecting courses with a right of first refusal, which does not exist. And he also overlooks the Deans right to decide the appropriate workload for faculty members. The evidence shows Genslers course requests were fairly considered before any courses were given to part-time faculty, and the Deans decision to give him only three classes was reasonable, so no basis is shown for issuing a writ of mandate.

Since there has been no showing that the decision to deny Genslers request to teach six summer session classes was arbitrary or capricious, and it is supported by the

evidence, the petition for a writ of mandate was properly denied. The judgment is

affirmed. Respondent is entitled to costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.

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[1] The facts are drawn from the allegations of the verified petition and the evidence adduced to support and oppose it.