attendance by probationary teachers as a condition of achieving permanent status.”). As
the Hunt court observed, physically in attendance equates to “experience.” (Id., at
p. 614.) Furthermore, according to the LAUSD, actual participation during a “school
day” is important for an probationary employee’s experience and simplifies the
LAUSD’s evaluation of that employee; that makes sense to us.
Another barrier to Cox’s claim is Education Code section 44975, which
prescribes: “No leave of absence when granted to a probationary employee . . . shall not
be considered as employment within the meaning of . . . Sections 44908 to 44919,
7
inclusive.” This section provides that the time period when a probationary employee is
on a “leave of absence” does not count towards the “complete school year” requirement
of section 44908. Cox’s rejoinder is that “if an employee works during her leave and is
later paid for that work, it would be unconscionable to deny her credit for time worked”
and “if an employee works during a leave and is paid, the employee was not on a leave
for the time she worked.” Beyond that rejoinder, however, she offers no authority for
ignoring the force of section 44975. We, however, cannot overlook the clear language
of that section.
4. The “Partial Day” Claim
LAUSD concedes that Cox worked an additional 3 1/2 hours. Yet, continues the
LAUSD, that makes no difference because Cox cannot count those “hours,” or “round
up” those hours into a day, or “round up” her assumed 74.7% to satisfy section 44908.
It must be stressed that section 44908 states “at least 75 percent of the number of
days . . . . ” There is no reference therein to “hours” or to “rounding up.” We cannot
substitute “hours” for “days” on nothing more than the argument of counsel. The same
applies to “rounding up.” Additionally, the statute itself belies Cox’s claim. The
Legislature expressly said “at least 75 percent of the number of days.” We cannot hold
that it really meant something else (e.g., “hours” or slightly less, i.e.,74.7%).
Cox relies upon Vittal or Griego, but neither supports her expansive
interpretations or provides a basis for rejecting a “literal” approach in interpreting key
statutes. Indeed, Griego commands: “In construing a statute . . . significance should be
given to every word, phrase, sentence and part; a construction making some words
8
surplusage is to be avoided.” (Griego, supra, 28 Cal.App.4th at pp. 518-519.) In short,
we cannot overlook section 44908’s clear language.
In Vittal, the school district’s employee was assigned to work at a junior college.
The appellate court evaluated an Education Code section (since repealed, with no
current comparison), providing that a probationary employee in a junior college district
could complete a school year with 75 percent of the number of hours. The use of hours
there, though, applied only from 1956 to 1968 when the plaintiff taught different hours,
sometimes 3 or 4 days a week. (Vittal, supra, 8 Cal.App.3d at p. 117.) We decline to
apply that situation to this dispute. Moreover, in considering why the Legislature did
what it did with respect to the statute in question, Vittal made reference to the “usual
and general prevailing situation in elementary and secondary schools in which teachers
are assigned to classes taught five days a week. Thus, the requirements of the section
[with respect to such teachers] were expressed in terms of days.” (Id., at p. 120.)
Griego stands for the proposition that Education Code section 44949.21 must be
harmonized with Education Code section 44975. In construing both of those sections,
that court concluded that a leave of absence does not create a break in the continuity of
service required for classifying an employee as permanent. The rule at issue here is not
related to “a break in the continuity of service,” but instead how to satisfy the specific
requirements of section 44908. We see no rationale to extend Griego’s conclusion to
this appeal.
9
CONCLUSION
We conclude that Cox’s claims find no support in an evidentiary sense or in the
relevant sections of the Education Code. As the trial court observed,”[w]hile it may
appear draconian, [Cox’s] failure to work one and a half additional days during the
2008-2009 school year supports [LAUSD’s] conclusion that the year’s service did not
constitute a complete school year. [Cox] was, therefore, properly classified as
a probationary employee in 2009-2010, and on March 8, 2010, was properly notified
that she was non-reelected effective at the end of that year.”
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DISPOSITION
The order is affirmed. LAUSD shall recover its costs on appeal.
HEESEMAN, J.
WE CONCUR:
CROSKEY, Acting P. J.
ALDRICH, J.
11
Filed 8/21/13 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ERICA COX, B239693
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS128454) v.
LOS ANGELES UNIFIED SCHOOL ORDER CERTIFYING OPINION DISTRICT, FOR PUBLICATION [NO CHANGE IN JUDGMENT] Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on July 23, 2013, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
[There is no change in the judgment.]
AI Brief
AI-generated · verify before citing
Holding. A probationary school employee who fails to work the statutory 75 percent of school days required for a "complete school year" cannot count hours worked during a leave of absence or round up partial days to satisfy the requirement.
Issues
Whether a probationary employee may count hours worked during a leave of absence toward the 75 percent 'complete school year' requirement under Education Code section 44908.
Whether Education Code section 44908 permits rounding up partial days or converting hours into days to satisfy the 'complete school year' requirement.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Education Code section 44908 defines a “complete school year” as “at least 75 percent of the number of days the regular schools of the district in which he is employed are maintained . . . . ””
“As noted above, section 44908 refers just to “days” not “hours.””
“This section provides that the time period when a probationary employee is on a “leave of absence” does not count towards the “complete school year” requirement of section 44908.”