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August 30, 2013

Close, But No Cigar: Court of Appeal Holds that Probationary Counselor Who Fell 1.5 Days Short of Completing Her Second Consecutive School Year Was Not Permanent

On July 23, 2013, California’s Second District Court of Appeal upheld the denial of Erica Cox’s petition for a writ of mandate, through which she had sought to compel the Los Angeles Unified School District to reinstate her as a permanent certificated employee.  Cox, who was a mere 1.5 days short of serving two consecutive probationary years in a counseling position, unsuccessfully argued that she should receive credit for additional hours worked and/or a partial work day that could be “rounded up” and counted toward the minimum.  The Court of Appeal’s opinion was certified for publication in the Official Reports on August 21, 2013.  (Cox v. Los Angeles Unified School District (2013) 2013 WL 4477843.)

Background Facts
Erica Cox was employed by the Los Angeles Unified School District for the 2007-2008 school year as a first-year probationary counselor with a normal work day of six (6) hours.  Cox successfully completed the 2007-2008 school year and was retained for the succeeding 2008-2009 school year.  During the 2008-2009 school year Cox worked 135 out of 182 days due to a maternity leave.

While the District retained Cox for the 2009-2010 school year, it nonetheless continued to classify her as a probationary employee.  Cox was subsequently non-reelected at the end of the 2009-2010 school year.

The District determined that Cox was subject to non-reelection because she did not serve two complete consecutive school years in a position requiring certification qualifications as required by Education Code section 44929.21.  The District determined that Cox did not meet this requirement because Education Code section 44908requires a probationary certificated employee to serve “at least 75 percent of the number of days the regular schools of the district…are maintained” to be credited with a complete school year.  The District calculated the required minimum number of days as: 182 total days x 0.75 = 136.5 days.  Cox, who worked 135 days that year, fell 1.5 days short.

Cox unsuccessfully challenged her non-reelection in Superior Court.

The Court of Appeal’s Decision
On Appeal, Cox argued that the District compensated her for a total of thirty (30) additional hours that she had worked on a grant application during 2008-2009, and that those additional hours equated to an additional five (5) work days, thus putting her over the 75% threshold.  While Cox was not clear as to whether the claimed 30 additional work hours transpired during her maternity leave or following her return to work, the Court of Appeal determined that her argument lacked merit either way.

On the one hand, assuming Cox worked those hours during her maternity leave, the Court identified two bases on which to deny her credit toward a complete school year.  First, she would not have been physically in attendance at work, actually participating during the school day and gaining experience.  Second, Education Code section 44975 states the time during which a probationary employee takes a leave of absence “shall not be considered as employment within the meaning of…Sections 44908 to 44919.”  Thus, section 44975 precludes counting a probationary employee’s leave of absence period toward the “complete school year” requirement of Section 44908.

On the other hand, assuming Cox worked those hours during the work days and weekend days immediately following her return from maternity leave, those hours could not be counted to increase the total number of regular school days that she worked.  The Court emphasized Section 44908 refers only to “days” and not “hours.”  Thus, even if Cox worked additional hours beyond her normal six (6) hour work day on the school days that immediately followed her return from maternity leave, those additional hours do not constitute additional “days” within the meaning of the statute.  Furthermore, any hours that Cox may have worked on the Saturday and Sunday following her return to work could not be counted, as weekend days are not days on which the regular schools of the District were maintained.

Cox also argued that she worked a partial 3.5 hour day during 2008-2009 that was not included in her calculation. Those 3.5 hours, when counted as a day worked, brought her total days worked to 136, which amounted to 74.7% of the 182 regular school days.  Cox argued that 74.7% should be “rounded up” to 75% to satisfy the requirement of section 44908.

The Court of Appeal rejected Cox’s argument, reasoning that the Legislature clearly required that a probationary employee work “at least 75 percent of the number of days” to receive credit for serving a complete school year, and that there is no authority to substitute “hours” for days or to “round up” to 75%.

Thus, the Court of Appeal held that Cox was properly classified as a probationary employee during the 2009-2010 school year, and that her timely notice of non-reelection was likewise proper.

Significance for School Districts
Considering that the Education Code has oftentimes been characterized as the furthest thing from a model of clarity (one judge even famously described it as “painful” to delve into the code), this Court of Appeals decision represents a refreshingly clear and simple construction and application of the law, and more importantly, does so in a way that benefits school districts.

Given this judicial clarity, school districts that keep accurate records of probationary certificated employees’ number of days worked and properly classify them in accordance with that accounting should have confidence that administrative decisions made in reliance upon that accounting, such as non-reelections, will likely withstand the type of “close, but no cigar” challenge that Cox presented in this case.

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