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May 2013

Gordon & Rees Partner Don Willenburg Wins Employment Appeal for College District

Gordon & Rees partner Don Willenburg of San Francisco recently won 2/3 of an appeal vindicating a community college district’s decision to lay off teachers due to California’s budget crisis.

The district decided to eliminate some classes and teaching positions to reach budgetary goals. The faculty association challenged the layoffs on behalf of the teachers, but an administrative law judge sided with the district.

Three of the teachers filed suit, arguing that they were qualified to “bump” into other positions held by teachers with less seniority. The trial court agreed, and ordered that the teachers be reinstated and reimbursed for lost benefits.

Willenburg, leader of Gordon & Rees’s appellate practice group, represented the district in post-trial motions and on appeal. He first won a stay of the trial court’s order to reinstate all three teachers pending the appeal. After an expedited schedule and facing a difficult substantial evidence standard of review, he persuaded the appellate court to reverse the trial court’s judgment regarding two of the teachers. One of them was not qualified to “bump” into the position she wanted. The other instructor wanted to “bump” into a position that the district had eliminated as part of the budget cuts, and argued that the district should have kept the position open for him. Willenburg persuaded the court of appeal that the statute “provides a teacher only with the right to transfer into an existing position. If the position is eliminated, no matter when, the right to transfer does not exist.”

This victory also will reduce or eliminate awards of costs and attorney’s fees, currently the subject of separate appeals.

Don Willenburg