Tecun v. Jurupa Unified School Dist.





















Filed 10/15/12 Tecun v. Jurupa Unified School
Dist. CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 TWO






>

JUAN TECUN, Plaintiff and Appellant, v. JURUPA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

E054002 (Super.Ct.No. RIC515765) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Sharon J.
Waters, Judge. Affirmed.

Juan Tecun, in pro. per.;
Reid & Hellyer, Michael G. Kerbs, Jenna L. Acuff for Plaintiff and
Appellant.

Thompson & Colegate,
Susan Knock Brennecke, and Michael J. Marlatt for Defendant and Respondent.

The Jurupa
Unified School District
(the District) hired Juan Tecun as a classified employee. Just 126 working days later, it fired him.

Under the District’s
express written policy, a new classified employee remains on probation for “130
regularly assigned consecutive working days, including paid holidays,” but
excluding any “leave of absence or vacation.”

When Tecun filed this mandate proceeding, he was
apparently under three misconceptions.
First, he believed the District was subject to Education Code section
45301, which has been construed to require that vacation days must be counted
as part of a classified employee’s probationary period. The District, however, is not subject to
Education Code section 45301. In this
appeal, Tecun does not argue otherwise.

Second, Tecun believed he could add all of his
accrued vacation time (6.5 days) to the total duration of his employment (126
days), which would put him over the 130-day minimum. He overlooked the fact, however, that he >used 3 vacation days >during the 126 days. Thus, he was double-counting. Even if he were entitled to the 3.5 days of >unused vacation time, as well as to all
of the 126 days, that would put him at only 129.5 days. Again, Tecun does not argue otherwise.

Third, Tecun believed he was entitled to credit
for all of the 126 working days, even though he spent some of them (as noted)
on vacation, some on sick leave, and some simply AWOL. The trial court, however, ruled that
vacation, sick leave, and unexcused absences simply did not count.

With respect to this last point, Tecun argues
otherwise — vigorously. He now claims
that he is entitled to credit for the entire 126 days, plus the 3.5 days of
unused vacation, plus 4.75 hours of
overtime. This would give him a
total of 130.1 day.

We find no error.
Hence, we will affirm.

I

FACTUAL BACKGROUND

The following facts were shown by the testimony
and exhibitshref="#_ftn1" name="_ftnref1"
title="">^[1] introduced at trial.

The District’s “Policy 4206” provided:

“Each new classified employee . . .
shall be required to serve a probationary period of 130 regularly assigned
consecutive working days, including paid holidays, . . . before
attaining permanency . . . .

“At any time during this 130-day period, new
employees are subject to summary dismissal.
The right of hearing is not available to an employee who has not earned
permanent status . . . .
[¶] . . . [¶]

“Time spent on leave of absence or vacation shall
not apply toward completion of the probationary period.”

The District hired Tecun as a computer support
technician on January 15, 2008. In April and again in June 2008, he received
favorable evaluations. On July 8, 2008, the District fired
him. This is a total period of 126
weekdays.

During this period, Tecun enjoyed five paid holidays.

He took six days of sick leave (January 17 and
January 28-February 1).

He accrued a total of 6.5 days of vacation time,
of which he actually used three days (January 18, May 22, and May 23).

He was paid for a total of 4.75 overtime hours.

After he failed to show up for two days in a row
(July 7-8), without explanation, he was fired.
He was paid for the first of these two days, but not for the second.

Following Tecun’s termination, the District paid him for his remaining
3.5 days of accrued but unused vacation time.

>

Actual days	Worked	110
	Holidays	5
	Used vacation	3
	Sick leave	6
	Unexcused	2
	Subtotal	126
Add-ons	Overtime	0.6
	Unused vacation	3.5
	Subtotal	4.1
Total		130.1

II

PROCEDURAL BACKGROUND

In 2008, Tecun filed this mandate proceeding
against the District.

Tecun took the position that Education Code
section 45301 applied. Unlike Policy
4206, Education Code section 45301 provides that a classified employee must
serve a probationary period consisting of 130 days of “paid service.” This has been construed to include paid
vacation time. (California School Employees Assn. v. Compton Unified School Dist.
(1985) 165 Cal.App.3d 694, 701.)

The District argued that, even if Education Code
section 45301 applied, Tecun did not have 130 days of paid service. However, it also argued that, because it was
not a “merit system” district (see Ed. Code, §§ 45240-45320), Education
Code section 45301 did not apply; rather, under Education Code section 45113,
it was entitled to adopt its own probationary period policy for classified
employees.

In 2011, after a trial, the trial court denied
the petition. It found that the District
had not adopted a merit system, and therefore Policy 4206 was controlling. Accordingly, it also found that Tecun was not
entitled to credit for any vacation time or for any days he did not show up to
work (i.e., sick leave and unexcused absences).
It did not make any findings regarding overtime.

The trial court concluded that Tecun had not
worked “130 ‘regularly assigned consecutive working days
. . . .’ [The District]
was within its rights in terminating his employment during the probationary
period.”

III

THE CALCULATION OF THE
PROBATIONARY PERIOD

To prevail, Tecun would have to show that he is
entitled to credit for all of the 126
working days during his employment (including used vacation, sick leave, and
unexcused absences) plus all of the
4.1 “add-on” days that he is claiming (consisting of unused vacation and
overtime). If any one category is excluded, the remaining categories add up to less
than the required 130 days.

We will hold, however, that multiple categories
must be excluded.

A. Standard of Review.

“In reviewing a trial court’s decision on a
petition for writ of mandate, we uphold the trial court’s factual findings if
supported by substantial evidence. [Citation.]
We, however, independently review the court’s decisions on questions of
law, including the trial court’s interpretation of statutory language
. . . .
[Citations.]” (>Barber v. >California> Dept. of Corrections and Rehabilitation
(2012) 203 Cal.App.4th 638, 644 [Fourth Dist., Div. Two].)

B. Used Vacation Days.

The District’s express written policy provided
that the 130-day probationary period did not include time spent on
vacation. Accordingly, used vacation
time must be excluded.

Tecun claims that the District conceded below
that used vacation time should be included.
Not so. It merely conceded that, >if Education Code section 45301 applied,
used vacation time would be included.
However, it also argued that Education Code section 45301 did not
apply. In any event, even if the
District made such a concession, it would not be binding on us. (Desny
v. Wilder (1956) 46 Cal.2d 715, 729.)

Tecun also argues that vacation time should be
included for policy reasons. Even if we
were convinced (and we are not), we would have no power to rewrite the
District’s stated policy simply because we disagreed with it.

C. Unused Vacation Days.

The District’s policy must also be construed as
excluding unused vacation days, for two reasons. First, the policy required a classified
employee to “serve a probationary
period of 130 regularly assigned consecutive working days . . . .” (Italics added.) This implicitly but necessarily excluded
vacation days that the employee never actually took. Holidays were included, even though they were
not working days, but only because the policy expressly so provided.

Second, this interpretation is reinforced by the
fact that the policy also expressly excluded “[t]ime spent . . . on
vacation . . . .”
Admittedly, unused vacation time has not yet been actually “spent.” Nevertheless, it would make no sense to >exclude used vacation time, yet >include unused vacation time.

D. Sick Leave.

Sick leave must also be excluded. The District’s policy expressly excluded
“[t]ime spent on leave of absence . . . .” The Education Code provides that classified
employees are entitled to a “leave of absence for illness or
injury . . . .” (Ed.
Code, § 45191.) Thus, as Tecun
concedes, sick leave constitutes a “leave of absence.”

Tecun argues, however, that the District’s policy
violated the Education Code. His
argument has two premises:

1. Education
Code section 44975 provides that, with respect to certificated employees, “[n]o leave of absence when granted to a
probationary employee shall be construed as a break in the continuity of
service required for the classification of the employee as permanent.”

2. A
1955 opinion of the California Attorney General concluded that >classified employees “are entitled to
the same minimum leave rights as are provided by law for certificated
employees.” (26 Ops.Cal.Atty.Gen. 275
(1955).)

The first premise is irrelevant. The fact that a leave of absence is not “a
break in the continuity of service” does not mean that it must be counted as
part of an employee’s probationary period.
It simply means that it does not prevent the workdays before and after
the leave of absence from being deemed “consecutive.” (See Griego
v. Los Angeles Unified School Dist. (1994) 28 Cal.App.4th 515,
519-521.) We are assuming, for purposes
of our opinion, that all of Tecun’s workdays were consecutive within the
meaning of Policy 4206.

The second premise is obsolete. The Attorney General’s opinion was based on
former Education Code section 14701, which specifically required that leaves of
absence be granted to classified employees “‘in the same manner as’” provided
by statute for certificated employees.
(26 Ops.Cal.Atty.Gen. 275 (1955).)
That section, however, has long since been repealed and replaced by
Education Code section 45190 (see Historical and Statutory Notes, 27C West’s
Ann. Ed. Code (2006 ed.) foll. § 45190, p. 85), which contains no
similar requirement.

We conclude that Tecun has not shown that the
District was required to give him credit for sick leave.

E. Overtime.

The District’s policy also excludes
overtime. Again, it allows credit only
for “regularly assigned consecutive
working days
. . . .” (Italics
added.) Overtime, by definition, is not
regularly assigned. Moreover, the
District evidently contemplated counting only entire days.

Once again, Tecun argues that overtime should be
included for policy reasons. We decline
to rewrite the District’s policy.

IV

GOOD CAUSE

Tecun also contends that, even if he was only a
probationary employee, his termination was arbitrary and capricious.

He forfeited this contention by failing to raise
it below. Precisely because he did not
raise it, the District did not have the opportunity to present evidence on it,
and the trial court made no findings on it.

Even if not forfeited, however, it lacks
merit. Tecun fails to show that,
legally, he could not be terminated without good cause. Ordinarily, a probationary classified
employee can be terminated without good cause, notice, or a hearing. (California
School Employees Assn. v. Governing Bd. of East Side Union High School Dist.
(2011) 193 Cal.App.4th 540, 543, fn. 2; see also Phillips v. Civil Service Com. (1987) 192 Cal.App.3d 996, 1000
[“[a] probationary employee of a public agency may be dismissed without a
hearing and without judicially cognizable good cause”].) Indeed, that is what “probationary” means.

Tecun relies on Fugitt v. City of Placentia (1977) 70 Cal.App.3d 868 [Fourth Dist.,
Div. Two]. The probationary employees in
that case, however, were entitled under a memorandum of understanding to
challenge their terminations as arbitrary or capricious in a grievance
procedure. (Id. at pp. 870, 873.)
There is no evidence of any similar memorandum of understanding in this
case.

Separately and alternatively, there is sufficient
evidence that the termination was not arbitrary and capricious. Tecun points to the fact that he had received
generally favorable evaluations.
Thereafter, however, he failed to show up for work for two days in a row
without any explanation. This would be a
nonarbitrary, noncapricious reason to terminate him.

V

DISPOSITION

The judgment is affirmed. The District is awarded costs on appeal
against Tecun.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We concur:





RAMIREZ

P. J.





HOLLENHORST

J.