I respectfully dissent.
The scholarly majority opinion closes its eyes to what actually happened in this case, unnecessarily reaches the question of the proper scope of review of FEPC proceedings and, to make matters worse, announces as proper a scope of review which will necessarily vary depending upon which party prevails at the FEPC hearing.
Before proceeding, it appears to me appropriate to set forth some additional facts not recognized by the majority. In 1969, prior to the 1970 episode, Mrs. Keller was granted sick leave on the understanding she could return to work only on a part-time basis because the laundry was to be renovated. Thereafter she returned to work on a part-time basis and was eventually restored to full-time employment. In fact, although she was reluctant to assume the responsibility, Mrs. Keller was thereafter appointed laundry supervisor. It is inconceivable that, in connection with the present episode, Mrs. Keller was not reemployed because of her Indian ancestry, when one year previously, she was reemployed after a sick leave and thereafter promoted to laundry supervisor. I note also that 18 of Hospital’s 140 employees are American Indians.
What actually happened in this case becomes quite apparent when one reads the findings and decision of the FEPC, the full text of which is attached hereto as Appendix A. Based on faulty arithmetic (infra), the FEPC decided that Northern Inyo Hospital had failed to implement a satisfactory aifirmative action program (see findings III-B. and IV) and decided *27to encourage the establishment of such a program by holding the hospital liable to Mrs. Keller in the present case (see findings III-B., IV and V).
It is unnecessary in this case to reach the question of the proper scope of review of FEPC proceedings. As I read the findings of the FEPC, finding V is made to depend to a considerable degree upon finding IV, and finding IV is not supported by the evidence whether one employs the substantial evidence test or the independent judgment test. Finding IV begins with the premise that Bishop, California, the situs of Hospital, has a population of approximately 3,000 persons, about one-third of whom are American Indians. The uncontradicted evidence was that the Indian population of the area surrounding Bishop, California, including the Bishop Indian Reservation, the City of Bishop, and surrounding areas, was 900 persons, of whom 825 lived on the reservation. The uncontradicted evidence was that the total population of the immediate vicinity of Bishop was 9,000 persons. The percentage of American Indians to non-Indians is therefore 10 percent, not one-third as found by the FEPC.
Were it necessary to reach the question of the proper scope of review of FEPC proceedings, I would hold that regardless of who prevailed before the FEPC, the appropriate scope of review is independent judgment review. In the first place, that that scope of review is the proper one is implied in several cases. (See Stearns v. Fair Employment Practice Com., 6 Cal.3d 205, 211 [98 Cal.Rptr. 467, 490 P.2d 1155] [citing Bixby v. Pierno, 4 Cal.3d 130 (93 Cal.Rptr. 234, 481 P.2d 242)]; International Union etc. Engineers v. Fair Emp. Practice Com., 276 Cal.App.2d 504, 507 [81 Cal. Rptr. 47].)
Secondly, I am not so certain as are the majority that no fundamental, vested right is here involved. Prior to the Bixby case, the criterion was whether or not the right affected or involved was vested. (See e.g., Merrill v. Department of Motor Vehicles, 71 Cal.2d 907 [80 Cal.Rptr. 89, 458 P.2d 33]; McDonough v. Goodcell, 13 Cal.2d 741 [91 P.2d 1035, 123 A.L.R. 1205]; Laisne v. Cal. St. Bd. of Optometry, 19 Cal.2d 831 [123 P.2d 457]; Cal. Administrative Mandamus (Cont.Ed.Bar) pp. 80-86.) I do not understand the extensive dicta in Bixby as restricting the old rule by adding a requirement that the right be also fundamental. Indeed, “in determining whether the right is sufficiently basic and fundamental to justify independent judgment review, the courts have considered the degree to which that right is ‘vested,’ that is, already possessed by the individual.” (Bixby v. Pierno, supra, 4 Cal.3d at p. 146; see also Toczauer v. State Bd. of Registration, 20 Cal.App.3d 1067, 1069 [98 Cal.Rptr. 211].)
*28Moreover, the question arises at what point do we ascertain the right involved or being affected. When the present case was pending in the superior court on Hospital’s petition for writ of mandate, it was not alone Hospital’s right to have employees of its own choosing that was involved or affected. The ruling of the superior court would necessarily affect Mrs. Keller’s right to employment free of racial discrimination as well. What the majority holds is that since Mrs. Keller prevailed before the FEPC, a substantial evidence review is proper; whereas, if Hospital had prevailed at the FEPC hearing,1 an independent judgment review would be proper. Thus, the majority makes the scope of review dependent upon which party prevailed before the FEPC. Such a rule does not commend itself to me.
If independent judgment review has any merit at all, it should be applied to proceedings of the FEPC. The FEPC is not an impartial adjudicatory body. It is charged with the enforcement of the California Fair Employment Practice Act. (Lab. Code, § 1419.) As in the present case, it acts both as the accuser and the adjudicator. Although an independent hearing officer is employed to preside at adjudicatory hearings, it is the Commission that renders the decision. The findings and decision of the FEPC in the present case (see Appendix A) are reminiscent of nothing so much as a chapter out of the Spanish Inquisition. The status and procedure of the FEPC cry out for independent judicial review of FEPC adjudicatory decisions.
As to the FEPC’s contention that the uncontradicted evidence discloses a violation of Labor Code section 1420, subdivision (e), it is sufficient to note that no violation of this subdivision of section 1420 was charged, and Hospital was never called upon to defend against such a charge. “The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.” (Ernst v. Searle, 218 Cal. 233, 240-241 [22 P.2d 715]; Gyerman V. United States Lines Co., 1 Cal.3d 488, 499 [102 Cal.Rptr. 795, 498 P.2d 1043].)
I would affirm the judgment of the trial court.
*29Appendix A
Before the Fair Employment Practice Commission of the State of California
In the Matter of the Accusation ) Case No. FEP 70-71 B6515
, )
of ) L-1319
Northern Inyo Hospital, )
Respondent. )
)
)
_______.)
Decision
This matter came on regularly for hearing before the Fair Employment Practice Commission of the State of California, at Los Angeles, California, on May 18, 1972, at the hour of 9:30 a.m. Milford A. Marón, Hearing Officer of the Office of Administrative Hearings, presided. Charles E. Wilson, Counsel, appeared on behalf of the Fair Employment Practice Commission. The Respondent, Northern Inyo Hospital, was represented by Willis Smith, Esquire, its Counsel. During the entire proceedings a quorum of the Fair Employment Practice Commission was present, consisting of Pier Gherini, Chairman, and C. L. Dellums and Catherine L. Montgomery, members. Evidence both oral and documentary having been received, the Fair Employment Practice Commission makes the following findings of fact:
I
A. Stella C. Sandoval made the Accusation in her official capacity as Commissioner for the Fair Employment Practice Commission.
B. On January 16, 1971, Complainant, Louise Keller, filed a written verified complaint with the Fair Employment Practice Commission, alleging that she had been discriminated against by the Respondent solely because of her ancestry in violation of Section 1420(a) of the Labor Code, and that said violation occurred within the preceding one year.
II
Respondent, Northern Inyo Hospital, is a public entity of the Northern Inyo County Local Hospital District, and is thereby a political subdivision of the State of California. The Respondent is the employer of 140 persons at its hospital facility in Bishop, California. Complainant, an American Indian, is and was, at all times pertinent herein, qualified for reemployment with Respondent as a laundry employee or in another unskilled capacity.
III
Public Policy
A. The opportunity to seek, obtain, and hold employment without discrimination because of race or ancestry is recognized in the State of California as a civil right. The public policy of this State declares that the practice of denying employment opportunity, and discriminating in the terms of employment because of race, religious creed, color, national origin, ancestry, or sex foments domestic strife and unrest, and deprives the community of the fullest capacity for its development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general. The enforcement of this policy is for the protection of the public welfare, prosperity, health, and peace of the State, and is, therefore, viewed liberally to accomplish such purposes.
*30B. The Fair Employment Practice Commission believes that more than mere passive compliance with the letter of the California Fair Employment Practice Act is essential in order to accomplish its purposes; thus, the spirit of the law calls for a dynamic and comprehensive program of affirmative action to be sustained by employers on a high priority basis. This should all the more be true when the employer is a public agency entrusted with public responsibilities.
IV
Affirmative Action Program
Bishop, California, the situs of the hospital, has a population of approximately 3,000 persons, about one-third of whom are American Indians. Respondent’s ethnic pattern of staffing as of October 17, 1971, established that twenty-four (24) of its 140 employees, or 17.1%, were members of minority groups, while only eighteen (18), or 12.8% of these employees were American Indians. In the supervisory categories only one (1) of Respondent’s twenty-five (25) supervisors, or 4%, was a minority member and an American Indian. These raw statistics are helpful in placing the facts found in Finding V within an understandable context and points out Respondent’s reluctance to establish an elightened [sic] affirmative action program in accordance with State policy.
V
Gravamen
A. The evidence established that Complainant, a long-term employee of Respondent, was granted a medical leave of absence on or about August 17, 1970, with the understanding that she would be entitled to the first available position for which she was qualified.
B. On October 28, 1970, Complainant again became available for reemployment, and was again reassured by Respondent that she would be rehired when the first available position developed. Since that time positions have developed for which she was qualified, but others have been hired for said positions. The failure to reemploy Complainant was due solely to her race or ancestry.
Pursuant to the foregoing findings of fact, the Fair Employment Practice Commission makes the following determination of issues:
The Respondent, Northern Inyo Hospital, a political subdivision of the State of California, has discriminated against the Complainant, Louise Keller, solely because of her race or ancestry in violation of Section 1420(a) of the Labor Code of the State of California.
* * * * * *
Wherefore, the Following Order is hereby made:
The Respondent, Northern Inyo Hospital, a political subdivision of the State of California, and its agents and employees, shall cease and desist from engaging in acts of discrimination against Complainant, Louise Keller, solely because of her race or ancestry, and shall forthwith pay to said Complainant the sum of $2,982.40, being that sum of wages reasonably lost and legally chargeable to the unlawful discrimination practiced by Respondent on Complainant.1
In compliance with Section 1426 of the Labor Code, reference is hereby made to *31Section 11523 of the Government Code and Section 1094.5 of the Code of Civil Procedure, which prescribe the rights of appeal of any party adversely affected thereby.
This Decision shall become effective on the 10th day of July, 1972.
It Is so Ordered this 10th day of Jan., 1972.
MAM:bsh
Fair Employment Practice Commission
By-
Pier Cherini, Chairman
We were advised at oral argument that the employer never prevails at formal FEPC proceedings, because groundless complaints are weeded out and eliminated by investigation prior to the advent of formal proceedings.
Although the Complainant would also be entitled to reinstatement under this record, she has since accepted other employment, and, therefore, does not seek such relief. [Fn. in the original.]