Zhang v. County of Monterey

Background

Jacqueline Zhang sued the County of Monterey, the Monterey County Resource Management Agency, and the Monterey County Parks Department after the County ended her employment. At issue in this order was Zhang’s petition under California Code of Civil Procedure § 1085, which allows a court to order a public entity or official to perform a legally required act. Zhang sought reinstatement to her County position and back pay.

The County’s Personnel Policies and Practices Resolution provided that newly appointed employees generally serve a 12-month initial probationary period. It also stated that an employee serving an initial probationary period had no right to appeal adverse action and served at the pleasure of the appointing authority. The resolution separately addressed disciplinary actions and required certain notice and response opportunities for those actions.

Zhang began working for the County in October 2015 and was terminated on October 4, 2016. The termination letter stated that she was being released from her Finance Manager I position and from County service because she had not satisfactorily completed her probationary period. Zhang argued that her employment began on October 1 or October 3, 2015, that an earlier evaluation ended her probation, or that the termination occurred after the 12-month period had expired.

The opinion states that, in an earlier round of the case, the court granted the County summary judgment on seven of Zhang’s eight claims. The Ninth Circuit affirmed rulings on five claims, found factual disputes concerning two due-process claims, and sent the § 1085 petition back for the district court to reconsider whether to exercise supplemental jurisdiction. The district court later retained the petition and held a jury trial on the two due-process claims. The jury found for the County, answering that Zhang had not proved she was a permanent employee or that the County had deprived her of a protected property interest without due process.

Legal standard

To obtain a traditional writ of mandate under § 1085, Zhang had to establish two elements: first, that the County had a clear, present, and ministerial duty to reinstate her; and second, that she had a clear, present, and beneficial right to performance of that duty. A ministerial duty is an act that the law requires an official to perform in a prescribed way, without leaving the official discretion about whether to perform it.

Probationary status

The court concluded that Zhang was appointed on October 5, 2015, and therefore remained probationary when the County terminated her on October 4, 2016. The court relied on her offer letter, her employment and benefits documents, her July 2016 evaluation, statements attributed to her concerning the end of her probation, her unemployment-benefits request, and her County discrimination complaint. Those documents and statements generally identified October 5, 2015 as her start date.

The court rejected Zhang’s argument that attending a Parks Commission meeting on October 1 constituted starting work because the invitation was not mandatory and she did not begin working in the County offices or complete her initial employment documents until October 5. It also rejected the argument that the October 3 pay-period date began her probation, finding that the pay-period dates applied generally to County employees and did not establish her individual start date. The court further rejected the argument that her supervisor’s statement that she “easily passes her probation” ended the probationary period, because the supervisor testified that the statement was a mistake and the evaluation’s permanent-status box was not checked. Finally, the court found no support in the personnel resolution for treating the end of the probationary period as occurring at a particular time of day, and noted that Zhang was terminated before leaving work on October 4.

Personnel rules and writ

The court ruled that the personnel resolution’s disciplinary-action procedures did not apply to Zhang’s release from probation. Those procedures concerned “adverse action,” defined in the relevant section to include dismissal, suspension, disciplinary demotion, salary reduction, disciplinary probation, and formal written reprimand. The court concluded that this definition did not include release from probation.

The court also reasoned that the resolution’s dismissal provision concerned permanent employees because it described dismissal for unsatisfactory conduct or inefficient service, while probationary employees could be released without cause. The court declined to interpret the resolution as requiring greater procedures for probationary employees absent a clear indication that it intended that result.

Because the County did not violate the personnel resolution by releasing Zhang from probation, the court found that the County had no clear, present, and ministerial duty to reinstate her and that Zhang had no clear right to reinstatement. The court therefore denied Zhang’s petition for a writ of mandate under California Code of Civil Procedure § 1085.