In Jenkins v. County of Riverside (2006 Daily Journal D.A.R. 4436, Cal.App. 4 Dist., Mar. 23, 2006), a California Court of Appeal considered the issue of whether an employee, who had worked for a county for approximately six years, was a temporary or regular employee. The Court concluded that the employee was a temporary employee and thus could not pursue her claim of discrimination or failure to accommodate under the California Fair Employment and Housing Act (FEHA), as the county legitimately fired her because she had exceeded the limited number of days that she could work in one year.
Evelyn Jenkins began her employment with the County of Riverside in 1992. County hired her as an Office Assistant II and assigned her to work at a local hospital to clean up a backlog of fetal monitoring strips. She completed that task within a few months and was trained and assigned to perform ongoing work in the nursing department. There is no dispute that the position she held was designated as a temporary position. However, she worked full-time in the position until County terminated her employment in May 1998.
Jenkins filed a lawsuit, alleging that County violated the FEHA by discriminatorily firing her because she was no longer able to perform her job due to disability caused by a work-related injury and by failing to reasonably accommodate her disability. After finding that Jenkins was a temporary employee and that County fired her because she had exceeded the maximum number of annual hours that a temporary employee could work, the trial court granted judgment to County without a trial.
Under County’s Ordinance No. 440, which sets out the structure of county employment, temporary employees may only work 1040 working hours during any one year period, unless the limit is extended upon written request by a department head. Furthermore, only the Board of Supervisors can turn a “temporary position” into a “permanent” or “regular” position.
In determining that Jenkins was a temporary employee and never became a regular employee, the court focused on three main factors. First, throughout Jenkins’ tenure with County, she was classified as a temporary employee and never received benefits. Jenkins was aware of her temporary status, as she took the required test and interviewed on numerous occasions but was unable to secure a regular position. Second, County presented evidence that temporary employees who reach 1000 annual hours are normally terminated or rotated to a different position. Jenkins had “slipped through the cracks,” according to County, possibly because of its adherence to a policy of not terminating workers, such as Jenkins, who have pending workers’ compensation claims but have not been rated permanent and stationary. Third, only the Board of Supervisors has the authority to create permanent positions, and County’s failure to follow its procedures for extending temporary positions did not operate to somehow usurp the Board’s exclusive right to convert Jenkins’ temporary position into a regular, permanent position.
For these reasons, the Court concluded that Jenkins was a temporary, at-will employee. County’s reason for firing her – because she had exceeded the limit on the number of annual hours that she could work – was legitimate. Furthermore, County did not have to reasonably accommodate Jenkins by assigning her to a regular, permanent position, because to do so would infringe upon the seniority and other rights of regular employees who obtained their positions through the civil service procedures.
It should be noted that, simultaneously with this lawsuit, Jenkins was pursuing a lawsuit in federal court claiming that County deprived her of her property right in continuing public employment in violation of 42 U.S.C. § 1983. In that lawsuit, the United States Court of Appeals determined that Jenkins was a de facto regular employee of County. The California Court of Appeal disagreed with this legal conclusion and determined that it was not bound to follow it. (For a discussion of the federal case, see our Legal Alert, “United States Court of Appeals Examines The Issue Of Whether A Terminated Public Employee Was Merely A Temporary Employee Or An Employee That Was Qualified For A Regular Position”, May 18, 2005.)
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