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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39172
Experience:  Retired (mostly)
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I work at IT Department of college. I have been denied in promotion/reclassification

Customer Question

I work at IT Department of college. I have been denied in promotion/reclassification twice. First time in 2006, and second time in December 2010. In 2006 personnel commission assigned analyst had an interview with me and my boss to analyse my work. He came and ask questions in relation to my current position and as a result his findings were not in favor my promotion, though my immediate supervisors supported my case at some degree. By saying at some degree because one day my boss came and told me that he would be fired by someone if he will support my case. I did back up because I would not want to be a cause for someone else trouble. In August of 2010 that particular person left our organization so I did apply again. At this time again personnel analyst came to analyse my work. In both occasions I did apply for the same entry supervisory level position. After discussion with analyst she told me that I do not qualify for this promotion/reclassification because I do not perform supervisory duties. I unsuccesfully appealed up to Personnel Commission and above. According to Personnel Commission Rules and Educational Code of California that position does not require supervisory skills, and out of class duties should accrued during time. For past 6 + years my duties are out of class. I do maintain and support entire network about 900 computers plus 50 various servers and services almost all alone. I did perform periodical supervision over same with my class co-workers. I do planning, scheduling coordination and most of the functions necessary for proper functionality of the network. However, because I do not supervise - which is not a requirement for that position classification my promotion has been denied. While no one even bother to study all other duties. My both immediate supervisors supported my reclassification process. How can I get what I earned long time ago. I did apply DFEH office on what they replied if there is no discrimation they will not review my case. There are much more details I can provide, but above is just short outcome.
Submitted: 6 years ago.
Category: California Employment Law
Expert:  N Cal Atty replied 6 years ago.
If you tell them you need an assistant and they allow you to hire one, that would make you a supervisory employee and thus eligible for reclassification. That seems like the easiest way to resolve the problem.

Supporting 900 computers and 50 servers sounds like more than a one person job.

I hope this information is helpful.
Customer: replied 6 years ago.
I do supervise periodically over same class employees. in addition I do supervise student workers. However this cannot be assumed as supervision as per Personnel Comission rules. Besides job description of the position that I am trying to reclassify does not require supervisory experience. The situation is more complicated then you think, and not because I do think so. I have read educational Code and our Personnel Commission rules. Actually Personnel Commission actions violating their own and ED Code of California. Besides my administration would not hire a new employee, budget. Sorry, Your answer was not helpful. I believe they will not open position while I am here. I am more then sure that they will open position and hire 2+ people to do my job if I l;eave the job.
Expert:  socrateaser replied 6 years ago.

Different expert here.

In general, California public college instructor employment decisions are controlled by the school's administrative grievance process, in concert with any collective bargaining agreements between union-member instructors and the school. Judicial review is limited to evaluating the fairness of the administrative hearing process -- not the correctness of any decision. See, e.g., Code Civ. Pro. 1094.5; Pomona College v. Sup.Ct. (Corin) (1996) 45 Cal.App.4th 1716, 1726, 53 Cal.Rptr.2d 662, 668; Gutkin v. University of So. Calif. (2002) 101 Cal.App.4th 967, 976-977,125 Cal.Rptr.2d 115, 122-123.

What this means for your purposes, is that if you have exhausted the school's administrative process, then your next step would be to petition the Superior Court for a writ of mandate to determine the fairness of the school's decision making process. A favorable outcome could potentially be accomplished by proving that the process places you in the position of having to satisfy a rule that is arbitrary and capricious, because it has no legitimate relationship to your actual job function, or to any school interest, other than to prevent personnel in your position from being promoted.

For an employment rights attorney referral, see this link.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Lawyer
Satisfied Customers: 39172
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 6 years ago.



I tried to figure out if my timing is off. Not found answer yet. The Personnel Comission decision was made on Dec 13th od 2010. According to DFEH I have one year to present my case, but I don't think there is a discrimination, and even if there is some there is no way I can prove this. So DFEH out of scope since there is no fact of discrimination. In case if I am off of the timing what are my other possibilities.

Expert:  socrateaser replied 6 years ago.
I'm not seeing the sort of unlawful "class-based" discrimination that is handled by DFEH. The discrimination that you are being subjected to is the base discrimination applicable to all persons under the Constitution -- i.e., that all laws/regulations must be reasonably related to some legitimate government interest. Laws must be rationally based -- not arbitrary or capricious, i.e., enacted simply because someone thought the law/regulation a good idea.

This is an extremely high bar to overcome -- however, it is not an impossible bar. Your facts suggest that the regulation concerning your promotion has no rational basis, because you could be in charge of managing every government asset in the state, worth hundreds of billions of dollars, and yet not entitled to a promotion, because you did not manage anyone else. I'm making this extreme argument to show how a regulation prohibiting promotions solely because the person seeking promotion does not manage any other person is an absurd standard, considering that you do manage a huge number of vital government assets.

In giving this additional thought, I see (rather than a writ of mandate action) a viable civil action under federal law (42 U.S.C. § 1983), which also has a one-year statute of limitations in California.

You won't be able to process this through any state agency. You will need a private civil rights or employment rights lawyer with some courage. You might even consider contacting the ACLU, though it's really not in their core 1st Amendment area.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!