Dawn v. State Personnel Board

91 Cal. App. 3d 588, 154 Cal. Rptr. 186, 1979 Cal. App. LEXIS 1602, 20 Empl. Prac. Dec. (CCH) 30,007, 19 Fair Empl. Prac. Cas. (BNA) 1030

• Court: California Court of Appeal
• Decided: April 4, 1979
• Docket: Civ. 16328
• Status: Published

Opinions

Opinion

REGAN, J.

Plaintiff Dawn filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5; it sought review of defendant’s decision affirming a promotional appointment of a woman, Patricia Khan, to a civil service position which plaintiff alleged he would have received had. the law been properly applied.

The fundamental question on appeal is whether the judgment of the trial court denying the petition for mandate is supported by substantial evidence, viewing the record in the light most favorable to defendant. (Brush v. City of Los Angeles (1975) 45 Cal.App.3d 120, 123 [119 Cal.Rptr. 366]; Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691-692 [133 Cal.Rptr. 154].)

The defendant State Personnel Board (board) is created and established by article VII, section 2, of the California Constitution. Plaintiff was a civil service parole agent I in the Department of the Youth Authority. In September 1971, a promotional examination was given for the position of parole agent II. A number of parole agents I, including plaintiff and Khan, took the examination. Plaintiff placed in the third “rank” of eligibles and Khan in the sixth.¹ In 1974, when an appointment was made to an open position of parole agent II, Khan was appointed from the list of eligibles established by the 1971 examination. At the time of appointment she and plaintiff were both available therefor under the rule of the “three highest ranks” (as provided on Gov. Code, §§ 19057 and 19057.1), since the eligible persons in the other ranks above rank six had been eliminated by previous appointment or by waivers.

Following the appointment of Khan, plaintiff filed a formal employee grievance which was heard in the department by the parole administrator; after “formal, structured interview” procedures, the administrator found the appointment was legal since Khan was in the first three ranks.² The director affirmed this finding. The grounds of plaintiff’s grievance were that he was more qualified due to a wider range of experience, and was higher on the list. He asserted he was “passed over” due to the affirmative action program. His supervisor, George Hopkins, who had made the appointment of Khan, stated plaintiff and Khan were “equally qualified” and in the absence of a compelling reason to act otherwise he supported the departmental policy of recruiting and promoting more ethnic minorities and women. Plaintiff appealed to the board, which, after hearing procedures, found that both plaintiff and Khan were eligible for appointment and that the department was free to choose between equally eligible persons. It affirmed the appointment. In so doing, it had before it the same charge of sex discrimination which had been made before the departmental reviewing officer. It concluded, in effect, that as long as the appointment was from among equally eligible or qualified persons, the matter of sex discrimination was not an issue. In so concluding, the board, like the departmental reviewing officer, had before it the statement of George Hopkins, supervising parole agent, that “both candidates were equally qualified for promotion . . . .”³

Plaintiff contends he was denied the right to advance in California civil service on the basis of merit and ability as required by the California Constitution and civil service statutes. He makes reference to the merit system requiring appointments and promotions “under a general system based on merit ascertained by competitive examination.” (Cal. Const., art. VII, § 1, subd. (b).) He also refers to various provisions of the Government Code providing for a comprehensive plan of civil service (see Gov. Code, § 18900 et seq.), some of which emphasize promotion of employees showing fitness, willingness, ability and efficiency. (See, e.g., Gov. Code, §§ 18930, 18951.) None of these provisions however, nor any other provisions of law, derogate from the clear right of an appointing power within an agency to promote from among any persons who have attained by examination one of the three highest ranks as provided in Government Code section 19057.1 where, as here, such persons are of equal ability as found by their superiors. It cannot reasonably be said that by choosing one the other has been denied the right to advance on the basis of merit and ability. (See Paule v. State Personnel Board (1974) 38 Cal.App.3d 32, 35-36 [113 Cal.Rptr. 38].) Being on an eligible list affords no right to an appointment. (Graham v. Bryant (1954) 123 Cal.App.2d 66, 70-71 [266 P.2d 44].)

Plaintiff contends that Government Code section 19057.1, “the ‘rule of three ranks,’ does not permit the use of discriminatory, non-job-related selection methods for promotional appointments.” Plaintiff does not challenge the validity or contents of the department’s affirmative action plan as such and agrees with the social purpose of affirmative action programs. However, it is his position that such practices or programs (affirmative action) cannot be upheld when “in conflict” with the merit system of civil service, which constitutionally mandates merit and ability as the means of advancement.

Plaintiff has referred us to a number of federal cases in which the courts have attempted to reach a balance between merit system selection of employees, affirmative action programs, and the various civil rights acts prohibiting race and sex discrimination. When there is a conflict among these programs and laws there are serious problems. (See, e.g., Bridgeport Guard., Inc. v. Members of the Bridgeport C. S. Com’n (2d Cir. 1973) 482 F.2d 1333; Kirkland v. New York St. Dept. of Correctional Serv. (2d Cir. 1975) 520 F.2d 420; Equal Employment Opportunity Com’n v. Local 638 (2d Cir. 1976) 532 F.2d 821; cf. Bakke v. Regents of University of California (1976) 18 Cal.3d 34 [132 Cal.Rptr. 680, 553 P.2d 1152], cert, granted 429 U.S. 1090 [51 L.Ed.2d 535, 97 S.Ct. 1098]; University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733].) But the key word is conflict. We do not perceive a conflict here of the sort which has plagued the courts in other instances. The record in this case, when read most favorably to defendant as must be done, leaves us with no doubt that there is substantial evidence that the two persons involved were “equally qualified” as expressly or impliedly found by the supervising parole agent, the parole administrator, the department director, the State Personnel Board, and the superior court. The finding of equal qualification must be made by someone other than a reviewing court, whose role is to determine only whether the finding is adequately supported. It is. This being so, plaintiff was denied no right under state or federal fair employment or civil rights laws relating to sex discrimination; nor is there any conflict here between the civil service laws as applied and any state or federal fair employment or civil rights laws prohibiting sex discrimination. Both plaintiff and Khan were equally qualified for promotion by department standards and pursuant to Government Code section 19057.1. Under these conditions the department chose Khan in an effort to further the goals of an affirmative action plan⁴ it had adopted pursuant to the authority of Government Code sections 19702, 19702.1, 19702.5 and 19705. This policy favoring Khan has no equal protection significance, for it is only a denial of equal treatment that the law condemns. Dawn was not denied any right when he was only “equally” and not “better” qualified than Khan for the promotion. No more could Khan have been offended had the policy been just the opposite and Dawn was promoted. The choice, whether for or against Dawn, was constitutionally meaningless once total equality of qualification was objectively determined.

The judgment is affirmed.

1 A “rank” consists of one or more eligibles with the same whole percentage score., after rounding each score to the nearest whole percent. (Gov. Code, § 19057.1.)

2 The statement of the administrator set forth the following:

“We had considerable discussion about the degree of who was most qualified and the question raised was that the affirmative action policy would only come into effect when both candidates were equally qualified. It is Mr. Dawn’s contention that he is more qualified because He had been a parole agent for twelve years, compared to Mrs. Khan’s nine years, that he had worked in a Youth Authority institution before he came into parole, and that from time to time he had been left in charge of the office in the absence of the supervisor and assistant supervisor, and that he had been trusted to present the unit cases to Board.

“The supervisor states that both employees were equally qualified for the position because of their background and their functioning as parole agents. Mrs. Khan has. in addition to her parole agent experience, worked in the correctional setting in another state, worked in the Welfare Departments of Alameda and San Francisco Counties, and was a supervisor in the welfare department. Both candidates have demonstrated that they are exceptionally good parole agents and both are ready for promotion and both are qualified for promotion. The appointment of Mrs. Khan was legal in that she was in the first three ranks. With a statement from the supervisor that he found them both equally qualified, the affirmative action policy of the department would call for the appointment of a woman. I find no illegalities in the promotion and therefore must refuse to declare the appointment illegal and must refuse to appoint Mr. Dawn in that position.”

3 The board also had before it a statement by another Parole Agent II, Bernard C. Stone, who stated that Khan was a good parole agent but she did not in his opinion “demonstrate the leadership and supervisory characteristics” shown by plaintiff. Stone expressed opposition to the affirmative action policies of the department and believed Khan was promoted only because she was a woman.

4 The term “affirmative action” often leads to unnecessary confusion and misunderstanding because of a failure in advance to agree upon or assume a definition for i(. Among politicians especially, the lack of advance definition often appears deliberate. It can be defined either as (1) a preference for certain persons where there is total equality of objectively ascertained qualifications, or (2) a preference for persons with lower objectively'ascertained qualifications, to the corresponding'exclusion of persons better qualified. We deal here only with the former. (See Bakke v. Regents of University of California, supra, 18 Cal.3d 34.)