DeJung v. Superior Court (Labor and Employment Law)

Filed December 19, 2008

First District, Division 4

Cite as 2008 SOS 6883

Verdict on Age Discrimination Claims Reversed

Theodore DeJung, a former commissioner, sued the Sonoma County Superior Court for age discrimination under the California Fair and Employment Housing Act (FEHA) (Government Code section 12900 et seq.). He complained he was not allowed to continue as court commissioner because the court’s executive committee allegedly “wanted somebody younger”.

Court records showed Theodore DeJung, 65, was first hired as a full-time commissioner with the court in 1976.

Around 1996, he and a retired judge began to split one commissioner's post, each essentially working half time. But that arrangement fell apart when the other jurist decided to leave about a year ago.

According to DeJung, then-Presiding Judge Allan Hardcastle told him the court's executive board did not want two people splitting the position again. DeJung then asked to continue full-time but Hardcastle told him "he could not continue as a court commissioner because the executive board wanted somebody younger, in their 40s."

Nevertheless, DeJung applied for the commissioner's job; but was rejected in favor of "a substantially younger person in his 40s who had no prior judicial experience."

Eventually, the court picked Larry Ornell, who had been a Sonoma County prosecutor for more than a decade.

On December 6, 2006, the trial court issued a 17-page ruling granting the Superior Court’s motion for summary judgment based on the following grounds:

• that the Superior Court enjoyed discretionary immunity against suits for employment discrimination under FEHA when selecting candidates for commissioner positions


• in the alternative, that appellant had not raised a triable issue of fact with regard to his discrimination claim. Judgment in favor of the Superior Court was entered on January 23, 2007. This timely appeal ensued.

During appeal, DeJung argued that statutory immunity does not protect against direct public entity liability under FEHA, and there are triable issues of fact relating to the discrimination claim.

The Fourth District court of appeal agreed and therefore reversed the decision of the trial court. The case is remanded for further proceedings and DeJung is awarded his costs of the appeal.