Metropolitan News-Enterprise


Monday, December 22, 2008


Page 1


Justices Revive Ex-Court Commissioner’s Age Bias Suit


By a MetNews Staff Writer


y a MetNews Staff Writer

The First District Court of Appeal Friday reinstated a former Sonoma Superior Court commissioner’s suit charging the court with age discrimination.

Div. Four said that discretionary function immunity does not apply to the selection of commissioners, and that Theodore DeJung had presented sufficient evidence to avoid summary judgment on his claim that he was replaced because the court had stronger candidates for the job.

DeJung, who was 65 years old when he was replaced by 43-year-old Larry Ornell four years ago, was a traffic referee in the Sonoma County Municipal Court from 1976 to 1982 and a commissioner from 1982 to 2004, moving from the municipal court to the Superior Court  due to consolidation.

He held the commissioner position fulltime from 1982 until 1996, when—with the court’s approval—he agreed to split the position with Gayle Guynup, a retired municipal court judge who notified the Superior Court in late 2003 that she planned to retire from the commissioner’s position by the following April 1.

Evidence presented by DeJung in opposition to the summary judgment motion indicated that the court agreed to allow him to continue working half-time and to recruit another half-time commissioner to replace Guynup. Then-Presiding Judge Allan Hardcastle informed him in January 2004 that the Executive Committee had voted not to continue the time-split, and to instead have a fulltime commissioner in the position, DeJung said.

DeJung said he told Hardcastle he would like to fill the fulltime position if that was what the Executive Committee wanted, but that he was told a week later that the judges “want somebody younger, maybe in their 40s,” he said. The court subsequently held a competitive recruitment process for the full-time position, for which DeJung applied.

Fifty-three lawyers sought the position, with 12—including DeJung—being named as finalists and interviewed by a panel made up of Hardcastle and two other judges. The panelists ranked the finalists, with none of the three ranking DeJung among the top six.

Ornell, who was younger than all but one of the other finalists and all but five of the applicants, was chosen by the full court after apparently being ranked fourth among the finalists by all three of the panelists.

Retired Superior Court Judge Frank Peterson, hearing the case on assignment, granted summary judgment both on grounds of discretionary function immunity and for failure to state a cause of action.

But Presiding Justice Ignacio Ruvolo, writing for the Court of Appeal, said FEHA expressly waives sovereign immunity by making public employers liable for discrimination to the same extent as private ones, and takes precedence over the more general provisions of the Tort Claims Act dealing with discretionary immunity.

The jurist went on to say that there are triable issues of material fact with regard to the court’s contention that it had valid, age-neutral reasons for not retaining DeJung.

Ruvolo cited alleged statements by Hardcastle to DeJung and others concerning the court’s desire to hire a younger person; the fact that Ornell was hired in preference not only to DeJung, but to three higher-ranked finalists in their 50s and 60s; and the fact that DeJung had served the court for many years without serious complaint.

The case is DeJung v. Superior Court, A116911.


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