Riverside Community College Dist. v. Biersmith CA4/2 (2021) · DecisionDepot
Riverside Community College Dist. v. Biersmith CA4/2
California Court of Appeal Oct 15, 2021 No. E073818AUnpublished
Filed 10/15/21 Riverside Community College Dist. v. Biersmith CA4/2 Reposting corrected version See dissenting and concurring opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RIVERSIDE COMMUNITY COLLEGE DISTRICT, E073818 Plaintiff and Appellant, (Super.Ct.No. RIC1825186) v. OPINION STEPHEN BIERSMITH,
Defendant;
ERIC THOMPSON,
Real Party in Interest and Respondent.
APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge.
Reversed.
Liebert Cassidy Whitmore, Pilar Morin, David A. Urban and Meredith Karasch for
Plaintiff and Appellant.
No appearance for Defendant.
1
Pacific Justice Institute, Kevin T. Snider and Michael J. Peffer for Real Party in
Interest and Respondent.
Real Party in Interest and respondent Eric Thompson was a tenured Sociology
professor at Moreno Valley College (College), which is part of plaintiff and appellant
Riverside Community College District (District). Students complained to the College
that Thompson made inappropriate comments in class about women and made those who
identified with the Lesbian, Gay, Bisexual and Transgender (LGBT)1 community feel
uncomfortable. Further, he sent a video about conversion therapy called Understanding
Same-Sex Attraction (video) to all staff at the College with the subject line “The Research
Continues,” and showed it in his classes in the Spring 2014 semester.2 In 2015, the
District started an investigation into Thompson, which resulted in a 90-day notice of
Unprofessional Conduct and/or Unsatisfactory Performance under Education Code
section 87734 (90-Day Notice).
After the 90-Day Notice, students reported that Thompson continued to make
disparaging remarks in the classroom regarding women. Further, a student complained
that her low grade in Thompson’s class was based on her sexual orientation. After she
made the complaint, and an investigation had begun, Thompson sent her an email asking
her to drop her complaint. The District opened another investigation, and ultimately, the
1 This court is aware that this community is currently referred to as LGBTQ but the transcript only identified the group on campus as the LGBT community.
2 Conversion therapy is a controversial method of trying to change a person’s sexual orientation.
2
District determined in October 2017 to discharge Thompson. Thompson requested
arbitration. After a lengthy hearing during which several of the College’s students
testified, and Thompson testified, the arbitrator determined that Thompson engaged in
immoral conduct, was dishonest, was evidently unfit for service and refused to obey the
school laws within the meaning of Education Code section 87732. However, the
arbitrator found mitigating circumstances, and imposed the penalty of a 90-day
suspension without pay rather than terminating Thompson’s employment.
The District filed a petition for writ of mandate arguing that since Thompson was
found unfit to teach, he should be dismissed (petition). The trial court denied the petition
without issuing a statement of decision. The District filed this appeal from the denial of
the petition.
On appeal, the District claims (1) the trial court committed reversible error by
refusing to issue a statement of decision; (2) the trial court and arbitrator erred by finding
that some of the charges were not supported by the evidence; (3) the trial court and
arbitrator abused their discretion by finding that Thompson should only be suspended for
90 days when he should have been dismissed; and (4) the court and the arbitrator erred by
finding that allegations prior to the issuance of the 90-Day Notice could not form the
basis of the discipline. We reverse.
3
FACTUAL AND PROCEDURAL HISTORY3
A. FIRST INVESTIGATIONS OF THOMPSON REGARDING
STATEMENTS TO A FACULTY MEMBER AND CONVERSION
THERAPY VIDEO
Thompson was a Sociology professor employed by the College, who, by 2014,
had been teaching for over 14 years. He had been hired by the College in 2005 as a full-
time professor and had tenure. Thompson had a Master’s Degree in Sociology. He was
married and had seven children. According to his syllabus, which he handed out to
students for the classes he taught in 2014 and 2015, grades in his classes were based on
exams, written assignments and participation. The accredited College consisted of over
8,500 students with 55 percent of the student body being female. The College had an
ALLY program that supported the LGBT community on campus. The College had a
“Diversity Committee” that was dedicated to fostering an inclusive and accessible student
experience.
In 2014, a male professor filed a formal complaint of harassment against
Thompson with the College administration. The male professor, who was homosexual,
was told by Thompson that the only way he would find true happiness would be to
divorce his husband and beg the Lord for forgiveness. Thompson also told the male
3The factual history is based on the exhibits admitted at the arbitration hearing, which included prior investigations into complaints against Thompson and the live testimony at the arbitration hearing.
4
professor he taught his students about conversion therapy. Thompson sent out a link to
the video on an all-faculty email service.
In 2015, an attorney, Sandra Lindoerfer, was hired to investigate the complaint.
Thompson was interviewed on March 10, 2015. He was teaching three in-person classes,
and other online classes. Thompson was asked about a complaint that had been made
about him and was asked what he believed the complaint to be about. Thompson replied
that he had emailed the video around September 2014.4 He explained that the video “in a
rather neutral way” showed the “other side” of the debate considering a person’s sexual
identity. He wanted to present the opposing view. He sent the link to the video in an
email to the entire College staff and employees; it did not go to students. He felt that
conversion therapy had been “demonized” by the American Psychological Association
and the American Sociological Association because it did not fit their “political
interests.” He wanted to get the information out. He did not want to hurt feelings.
Thompson believed that a person who was homosexual could, according to the research,
change. Thompson also showed the video in class.
Thompson felt pressure from the president of the College to stop showing the
video. Thompson thought it was appropriate to show the video in class as it was an
appropriate subject to discuss in a college class. Thompson felt he was persecuted by
4 The video apparently used a symptom-based model for homosexuality. It referenced that earlier events in a person’s life may have caused them to have homosexual tendencies and that therapy addressing the early trauma could be used to treat homosexuality.
5
“radicals” on campus. Thompson agreed with the president of the College to not show
the video in class just that semester.
As a result of the complaints, Lindoerfer submitted a report; the report is not part
of the record. Based on the report submitted on April 1, 2015, Thompson was required to
complete sensitivity training, which he completed.
B. SECOND INVESTIGATION AND 90-DAY NOTICE
One of Thompson’s students, Krista E., who was in Thompson’s class in Spring
2015, made a complaint against Thompson. In June 2015, Krista was interviewed by
Lindoerfer. Krista was the treasurer of the LGBT Straight Alliance (LGBTSA) Club on
campus. Her daughter, who was gay, also attended the College. Krista had been told of
some “issues” that Thompson may have with the gay community prior to her taking his
class.
Thompson showed a video to the class about a Mormon man who was gay but
married. After it was over, he told the class that he showed it to the class to show that it
was possible to have these types of feelings but overcome them and have a straight,
“normal lifestyle.” Thompson also mentioned in class that his wife was not educated and
he liked it like that so she would not go anywhere. Krista insisted that someone used the
word “dyke” in the classroom and that Thompson repeated the word.
Krista told Lindoerfer that there was a time in class when he called on her when
they were talking about same-sex marriage. She insisted he did not normally call on
people in class. During the discussion, Thompson talked about a biological father
marrying his daughter after years apart. Krista was offended that he compared
6
homosexual relations with a case involving a biological father and daughter. When
students in the class started talking about lesbian women dressing like men, she left the
classroom. She felt Thompson was encouraging the stereotype. She was upset that
Thompson continued to question her about same-sex marriage and no one else. In July
2015, Lindoerfer interviewed several other students and faculty members.
Several students confirmed Krista left Thompson’s class the day same-sex
marriage was discussed. Some students did not think that Thompson was singling out
Krista. Greg A. reported that someone in the classroom used the work “dyke” but
Thompson never used the word; one student stated Thompson said not to use that word.
Sergio M. was interviewed on June 8, 2015. He had been a student at the College.
He took two Sociology courses with Thompson. Thompson always started his classes
discussing that he was the breadwinner and that his wife stayed at home, homeschooling
his children. Sergio interpreted his statement to mean he thought that is how a family
should be. Sergio felt that Thompson did not allow students to express their opposing
views. Sergio provided that Thompson had made a diagram of the family in class which
was god, man and then woman. Sergio really liked Thompson and thought that no one
complained about him because he had a charming personality and his classes were easy.
Ann Pfeifle was interviewed on June 23, 2015. She was a history professor at the
College. She was the advisor for the LGBTSA on campus. She had served on the
“Diversity Committee” at the College. Pfeifle had complained to the Diversity
Committee about Thompson. She confirmed that Krista told her Thompson discussed
liking his wife to be uneducated so she would not leave him. Pfeifle had viewed the
7
video and could not watch all of it because it was very upsetting. She considered it anti-
gay propaganda. It was not a neutral presentation of the issue. Another student named
Erick had come to her crying over the video shown by Thompson in Fall 2014. Erick had
confided in Thompson and felt that Thompson had betrayed him. Thompson used the
terms “symptoms” of homosexuality. Pfeifle recommended Erick talk to Thompson.
Erick spoke with Thompson about students leaving the classroom during the video.
Thompson responded that they should have stayed to discuss it and they were cowards.
Victor S. was interviewed on July 28, 2015. He had been at the College since
2012. He served on the Diversity Committee. Victor thought that Thompson was great
in encouraging students to participate in class but needed to keep his personal views out
of class. Thompson said in class that the man came before women in all respects.
Thompson oftentimes compared gay marriage to pedophiles and polygamists.
Angela J. was interviewed on July 28, 2015. Angela had been at the College for
two years and was part of the Diversity Committee. She had taken two classes with
Thompson. She felt he pushed his fundamentalist Christian ideals on the class. He
quoted Bible scripture in class. Angela believed that when students wrote papers, he
would give lower grades to the students who expressed viewpoints different than his.
Thompson made it clear one day in class that women who have children should not be
out of the home. Angela watched the video and it was very upsetting to her. One
student, Charles, who was in class with Angela, was crying after the video and asked if
something was wrong with him.
8
Dr. Robin Steinbeck was interviewed on July 21, 2015. She was an administrator
at the College. One time Thompson had called her a feminist because she worked and
had children at home. He told her it made her a bad mother. Dr. Steinbeck was told by
other faculty they were offended by the video. On July 8, 2015, Dr. Larisa Broyles was
interviewed. She was teacher at the College. She was actively involved in the Diversity
Committee. She got the video from a school-wide email sent by Thompson. In the
email, Thompson stated that conversion therapy was scientifically valid. After that, at a
Diversity Committee meeting, several students, including Victor and Angela, complained
about Thompson. Dr. Steinbeck confirmed a student named Charles had expressed that
Thompson asked the class if anyone had the symptoms in the video. Charles felt forced
to answer. Charles had “ambiguous” sexuality. Students stayed in Thompson’s class
because they felt they had to get the credit to graduate.
Thompson was interviewed again by Lindoerfer on September 3, 2015.
Thompson acknowledged he showed a video in his classes about a Mormon man who had
homosexual attractions but was married. Thompson showed the video in one of his
classes, and Charles mentioned that he had all of the “symptoms” in the video.
Thompson denied that he used the word symptoms. Thompson described Charles as
being older and wearing colorful clothes. Thompson stopped showing the video after the
Fall 2014 semester because he felt pressured to stop. He did not want to make the
commitment to stop showing it indefinitely.
Thompson denied he ever told a female student that if she had children she should
not be going to college. He also denied ever telling his students that he thought the ideal
9
family structure was the female staying at home and the male being the bread winner. He
may have discussed this family structure but only in discussing cultural ideas.
Thompson gave Krista an “A” in his class. He knew she had children and a
husband. He had noticed that she wore a T-shirt with LGBT on it to class. He assumed
that she was sympathetic towards that “cause” or may be homosexual. He recalled she
had left class abruptly during a discussion of families and same-sex marriage. He
insisted he started calling on students by name in class to encourage more participation.
He thought it was “immature” of her to leave class when they discussed stereotypes about
lesbians including why some lesbians dress like men. Thompson thought that college
students believed they had a right not to be offended.
On May 11, 2015, Thompson emailed the president of the College detailing what
had occurred in the classroom when Krista walked out. Thompson referenced that the
LGBT community on campus was targeting him. He ended the email by stating, “At the
very least, the LGBT community needs to STOP WHINING, to GROW UP, and to
realize that this is COLLEGE.”
Thompson denied ever using the work “dyke” in class as it was offensive. He did
not recall anyone else using the term in class.
Lindoerfer filed a report on November 9, 2015. The report addressed the impact
of the video on faculty and students; how the email sending the video impacted faculty
and students; whether Thompson made a comment in class that the ideal family structure
was the husband as a bread winner and the wife staying home; whether he told a student
10
who had children she should stay home rather than go to college; and the impact on
Krista as to comments made in class.
As for the video’s impact on students, Lindoerfer was advised by students that
Thompson had told his students prior to showing the video to watch for the symptoms in
the video, and if they had them, they probably had a disorder. After the video, he asked
the class if anyone had symptoms. Thompson denied this statement. Another student
stated that Thompson only asked generally how the students felt about the video.
Lindoerfer was unable to interview Charles. Lindoerfer found that there was not
sufficient evidence of the statement by Thompson.
Lindoerfer concluded that showing the video caused several students in his classes
and faculty members to be emotionally upset. It had such a significant impact as it was
discussed by several student organizations. Thompson showed the video based on his
own religious beliefs. Further, based on Thompson sending the video to the homosexual
male professor, and other interactions, the professor was caused anxiety and started
having panic attacks. He had to take medication.
As for statements made by Thompson regarding a man being the breadwinner and
women staying home, students stated that Thompson had expressed that he followed this
patriarchal model in his own home. Lindoerfer relied on the reports from Krista, Victor,
and Angela to conclude that Thompson had made comments derogatory toward women,
including that women who have children should stay at home.
As for the complaints by Krista, Lindoerfer found that Thompson did direct
questions regarding same-sex marriage to her. The evidence showed that Thompson
11
attacked Krista, who was a visible LGBT supporter, by continuing to ask questions about
same-sex marriage. He was unable to argue both sides of an issue.
The District sent Thompson notice of the administration determination and a
summary of Lindoerfer’s investigative report. It stated, “Based on the foregoing as
summarized . . . it is the District’s conclusion that no violation of District Policy or
Administrative Procedure occurred. However, it is imperative that you understand the
fact pattern of the investigation showed that your conduct was unprofessional. Therefore,
the matter has been referred to . . . Human Resources and Employee Relations for
consideration of an appropriate course of action.”
On March 3, 2016, Thompson was sent the 90-Day Notice. It listed the facts that
supported the notice and what areas Thompson was to correct. Thompson was advised
he was not to single out students or treat them differently because of their sexual
orientation. Further, Thompson was advised not to make discriminatory statements on
the basis of gender. Such statements degraded the educational experience of the females
in his class and may deter them from pursuing education. Thompson was directed to
correct the deficiencies immediately. He was not to engage in conduct that violated laws
prohibiting discrimination based on protected status, including gender and sexual
orientation. His performance would be monitored and the administration at the College
would help him. It he continued to demonstrate these types of behavior, he would be
subject to disciplinary action, including dismissal.
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C. COMPLAINTS ABOUT THOMPSON AFTER THE 90-DAY NOTICE
In June 2016, a complaint was made by Derian H. to the dean of instruction at the
College that Thompson had them complete extra credit assignments in his Sociology
course about “fixing being gay.” She was concerned because she had written in her extra
credit paper about the video that she was gay. After Thompson received the paper,
Derian clamed he did not make eye contact with her and he had not given her a grade on
the written assignment. She was worried about her grade.
In September 2016, Thompson was notified about the complaint from Derian. He
was advised that an investigator, Kristine J. Exton, had been hired to investigate. In the
letter, Thompson was advised: “You are advised that any attempt to take reprisals
against, to intimidate, coerce or otherwise threaten any participant of this process
constitutes unacceptable and illegal conduct and will not be tolerated. As such, you are
directed to refrain from all such activities.”
After receiving notice of the complaint, Thompson sent an email to Derian. He
stated that his email was not an attempt to coerce or intimidate her in any way, mirroring
the language of the letter. He expressed that he was disappointed that she had made a
formal complaint against him. He was unaware of her sexual orientation until he
received the complaint. He wrote, “So I’m asking you to kindly reconsider going
forward with this. It is a hassle for me and takes away from my obligations to my current
students and family (my wife is due any day now).” He further stated it would cost the
taxpayers money. He then stated she had every right to proceed with the complaint. He
said that he cared for all of his students and he cared for her.
13
Exton interviewed Thompson on November 15, 2016. Thompson had tried to
exercise his academic freedom but a minority of the students complained about his
exploring alternative ideas of sexual identity. He felt bullied and harassed by members of
the LGBT community and some of the administration.
He acknowledged that he was using the video as extra credit in 2016. He did so
because he did not want to give up his academic freedom. He insisted it was necessary
for the class to show social constructionist perspective on sexuality. He insisted he
provided another video for extra credit that showed biological reasons for homosexuality.
Extra credit assignments were turned in but only given credit if the student was close to a
higher grade. He sometimes handed them back but not usually.
He recalled Derian was an average student. She emailed him about her grade and
he responded with her scores on everything. She had a 63 percent in the class so she did
not receive the points for extra credit. His email to her about the complaint was to show
he cared about her and her grade was not based on her sexual orientation. He mentioned
input errors in the grade book so that she could tell him if she made any mistakes in
entering her grades. He never read her extra credit assignment where she stated she was
gay. He did not treat her differently after it was turned in.
Exton filed her report detailing her investigation into Derian’s complaint on
February 4, 2017. The question for the investigation was whether Thompson awarded
Derian’s grade in Sociology based on her sexual orientation. Derian refused to be
interviewed. Exton reported that Derian had performed poorly on some of the
examinations in the class. Any extra credit would not have improved her grade.
14
Thompson insisted he did not read Derian’s extra credit assignment and was unaware she
was gay until he was advised of her complaint. Exton concluded, “The preponderance of
the evidence shows that it is UNFOUNDED there was discriminatory animus on the basis
of sexual orientation by Professor Thompson in assigning” Derian’s grade. As for
whether he changed his attitude toward her in class, several students stated that they did
not observe any change and Thompson stated he was unaware that Derian was gay until
the complaint. The allegation was unfounded.
Exton addressed comments made by Thompson in class regarding his family and
religion. Faith N. was interviewed and recalled Thompson discussing that men were
superior to women, and a man should be the head of the household. She recalled the
video was an extra credit assignment. Thompson encouraged the class to view the video
because it contained the truth. He said homosexuality was deviant. His classes were
filled with his philosophies and not book material. Thompson said in class that “whiny
feminists” were ruining the world. She did not file a complaint because she was worried
he would find out. David W., Vanessa S., and Michelle M. watched the video, which
was extra credit, and did not know Thompson’s views on homosexuality. Thompson
encouraged discussions in class and listened to other viewpoints. Jessica F. stated
Thompson would oftentimes connect his lecture to the Bible but it did not bother her.
She knew nothing about the video. Iris I. reported that no one in Thompson’s class was
offended by anything he said or did. He did not talk about his personal views of
homosexuality.
15
Exton stated that Thompson told her he talked about his family in class to
personalize himself. He discussed his personal religious views as a way to discuss
different ideologies. He believed homosexuality was caused by environmental factors
and not biological but never told his students what he believed. He never said
homosexuality was deviant. He admitted showing the video in his classes. Thompson
felt harassed by the administration and students for trying to exercise his academic
freedom. Thompson believed the video was important to his curriculum. He claimed
that Dr. Steinbeck told him that it was okay to show the video as extra credit. He also
added another video regarding the biological explanation of homosexuality. Thompson
denied calling someone “whiny feminists” but did mention the term in class for
discussion. He only emailed Derian to let her know he cared about her. Exton had
reviewed the proceedings leading up to the 90-Day Notice.
Exton found that Derian’s complaint that Thompson spoke in class about his
religious beliefs and family was true. Exton also found that the email sent to Derian
inferred that he would change her grade if she dropped the complaint.
D. DISTRICT DECISION TO TERMINATE THOMPSON
On March 22, 2017, the District sent a letter to Thompson informing him that it
was recommending to the Board of Trustees that he be terminated. A predisciplinary
Skelly5 review process would occur prior to the recommendation of termination.
5 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206 (Skelly) [a hearing on the dismissal of a public employee].)
16
The District’s recommendation for dismissal was based on the following
violations of Education Code section 87732: (a) Immoral or Unprofessional Conduct;
(b) Dishonesty; (d) Evident Unfitness for Service; and (f) Persistent violation of or
refusal to obey the school laws of the state or the reasonable regulations prescribed for
the government of the community colleges. Attached was a Statement of Charges, which
discussed the investigations involving Krista, the 90-Day Notice and the investigation
involving Derian.6 The District noted that Thompson had been advised of its policy
regarding discrimination and retaliation. Thompson filed an objection and intent to be
present at the Skelly hearing.
At the Skelly hearing, Thompson presented an audiotape of the class session where
Krista left during a discussion of the United States Supreme Court’s hearing a same-sex
marriage case. In the audiotape, Thompson discussed the fact that the United States
Supreme Court was discussing same-sex marriage and that Justice Alito had brought up a
question during oral argument about what if four people wanted to get married. One of
the students brought up a situation in another country where three men had gotten
married. Thompson stated, “Wow. Other thoughts? Raymond? Martin? Krista, what
do you think? Does Alito have a point here or is he all washed up.”
Krista responded that she thought marriage was by definition only between two
people. Thompson brought up a situation in which a woman had never met her biological
father. She searched him out when she was older, they liked each other and got married.
6The statement of charges were amended after the predisciplinary Skelly hearing. The charges will be detailed, post.
17
Thompson stated, “Now, these are consenting adults. They’re also—they also meet the
people’s requirement of, oh, it should just be two people. What do you think about that,
Krista? You have—by your definition, it should be just two people, you said.” Krista
responded that it was morally wrong. Thompson asked, “Are you judging, Krista?” She
responded, “[A]bsolutely.”
Krista then discussed that a person who was not married to their significant other
would have no rights if that person was sick. A female student asked, “Well, it’s not—
okay. I’ll—lesbians—well, girls, lesbians like a girl right, so she decides ‘I don’t want a
guy because I like a girl.’ ” Thompson responded, “Okay.” The female student
continued, “Okay. If she likes a girl, why does—have you noticed every time there’s a
lesbian couple, two girls, why does one dress like a guy if she likes—and she likes girls,
why doesn’t she dress—” Krista interrupted, “That is so—I’m gonna—I’m sorry.” The
female student finished, “Why doesn’t she dress like a girl? Why does she dress like a
[boy].” Thompson then stated, “Maybe Krista will stay, because— ” and Krista
responded, “No, I’m not staying.” Thompson then stated, “I’m going to say that that
doesn’t always happen, but you bring up a good point and it’s worth considering.” Krista
stated that it was completely false and a generalization. Thompson stated, “My thing is I
don’t know why,” and “Does anyone have a guess? I don’t know.”
Other students discussed the possible reasons.7 Thompson suggested that the
students ask their lesbian friends. Thompson then discussed polygamy. He stated, “But
7 Krista had apparently left the class at this point.
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my point is, if I had another wife, however, I could take one out on a date and the one
would be home with the kids.” A student brought up that the two wives would become
jealous. Thompson agreed. He stated, “They get jealous. To such a degree that the
whole atmosphere at times in the house might be characterized by this cloud—thick
cloud of resentment between the two because one woman thinks that the husband loves
her—the other woman more and the—women are already prone to being catty, aren’t
As for the first allegation the arbitrator concluded, “After a review of the
documents introduced and testimony presented, what Thompson said and allowed to be
said by others could well have caused Krista E. to become upset, but did not violate any
of the College’s policies or procedure and/or rise to the level of unprofessional conduct.”
The audio did not corroborate Krista’s testimony. She was not singled out as she
claimed. The offending statement about lesbians was made by another student.
Thompson could not ameliorate the situation because she left. The discussion about
same-sex marriage was appropriate in a Sociology class. The arbitrator noted it was
difficult to balance academic freedom against discrimination and harassment. The
arbitrator expressed it was difficult to understand that, if Thompson was targeting
students for harassment and discrimination, and making inappropriate comments, that
34
none of this was put on his student evaluations. A majority of the student evaluations
were positive. Further, he had very positive faculty reviews.
As for Thompson’s comments about women staying home with their children, the
arbitrator found it was supported by the testimony of several students and Thompson
admitted he presented studies on working women and marriage. He also made comments
to Dr. Steinbeck. The arbitrator found, “Such comments about women had a negative
effect on his students and were contrary to established College policies which prohibited
discrimination and harassment.” The arbitrator further stated, “Having a faculty member
actively discourage such participation under the guise of instruction, was prejudicial and
contrary to the mission of the College. An academic institution should not have to
tolerate such behavior at the expense of its students.”
As for the 90-Day Notice, Thompson was given no assistance by the District to
change his behavior. Nonetheless, “the weight of the evidence clearly established, he
engaged in additional unprofessional conduct after receiving the notice with the letter
sent to Derian H. and his false statement to the investigator.”
The arbitrator concluded there was no evidence that Derian’s grade or the failure
to return her extra credit papers was due to her sexual orientation. The arbitrator did find
that Thompson violated the directive of the letter sent to him regarding the investigation
into Derian’s complaint. As such, the arbitrator found, “Even though the evidence was
insufficient to prove he had discriminated or retaliated against Derian H. in grading, his
denial that he was not trying to threaten or coerce her when he wrote his letter was
unpersuasive.” An attempt to influence was enough. The arbitrator felt the evidence was
35
sufficient that he lied to Exton when he said he did not know the “status” of Derian’s
complaint. The arbitrator found that Thompson did not threaten Hendrick.
The arbitrator found that Thompson’s comments on the audiotape about being
“catty” were inappropriate and a derogatory statement. Such improper characterizations
and name calling was unacceptable. These statements on the audiotape showed
Thompson was gender biased. The arbitrator concluded, “The evidence was sufficiently
supportive in that regard.”
The arbitrator found there was not sufficient evidence that students were
discouraged from presenting different viewpoints.
As for evidence that Thompson targeted students, the arbitrator concluded, “There
is little doubt Thompson had strong opinions in certain areas, however, with the
exception of the clearly inappropriate comments he made about women attending college
or working, there was insufficient evidence he actually ‘targeted’ individuals based on
gender, religion, or another protected class.”
The arbitrator then addressed the appropriateness of dismissal. The arbitrator
noted that several events occurred prior to the issuance of the 90-Day Notice but the
president chose not to discharge or take any other disciplinary action based on the events
prior to the notice. The arbitrator concluded, “It was his latter conduct, which although
still only sustained in part, warranted some type of severe discipline.” The arbitrator also
found as an aggravating factor that there was a lack of remorse or acceptance of
responsibility by Thompson. The arbitrator noted “He exhibited a certain amount of
arrogance when he told his students that tenure gave him the right to do what he wanted.”
36
The arbitrator also noted, “Even though the 90-day letter clearly put Thompson on notice
certain conduct would not be tolerated, he still chose to ignore the directive.”
The arbitrator then issued his finding of facts, which, pertinent here, included
(1) Thompson did not cause Krista to be humiliated based on her affiliation with the
LGBT community; (2) Thompson made derogatory statements toward women and
continued through Spring 2016; (3) Thompson failed to adhere to the requirements of his
90-Day Notice when he made discriminatory statements on the basis of gender; (4) he did
not discriminate against Derian; (5) Thompson failed to adhere to the directives in
Exton’s letter of September 14, 2016, when he interfered with an investigation by
improperly contacting Derian in attempt to get her to drop her complaint, and made a
false statement; (6) Thompson did not threaten Hendrick; (7) the audiotape of his class
did not show gender bias;9 (8) Thompson did not discourage students from presenting
different points of view in class; (9) Thompson did not target students based on gender,
gender identity or religion; (10) there was sufficient cause to suspend Thompson by a
preponderance of the evidence because of immoral conduct, dishonesty, unfit for service
and refusal to obey school laws; (11) the Morrison10 factors of unfitness to teach were
shown; and (12) given that not all of the allegations were sustained and because of the
presence of mitigating circumstances, the discharge was not appropriate. The arbitrator
imposed a 90-day suspension without pay but not discharge.
9This clearly was not the intent of the arbitrator. The arbitrator had already concluded that there was sufficient evidence of gender bias in the tape.
10 Morrison v. State Board of Education (1969) 1 Cal.3d 214 (Morrison).
37
G. PETITION FOR WRIT OF MANDATE
The District filed a petition for writ of mandate pursuant to Code of Civil
Procedure section 1094.5 (petition). The District contended that the arbitrator’s decision
to suspend Thompson and reinstate him was not supported by the weight of the evidence
and constituted a prejudicial abuse of discretion. The finding was inconsistent with the
factual findings. The District alleged some of the factual findings by the arbitrator were
incorrect, but did not specifically argue the factual findings. The District sought
dismissal of the arbitrator’s decision and for the trial court to order the arbitrator to enter
a new decision upholding the dismissal of Thompson.
Thompson, as the real party in interest, filed an answer to the petition arguing that
the petition should be denied.
The District filed its opening brief in support of the petition. The District argued
that the arbitrator’s decision was erroneous as it orders the reinstatement of a professor
who was found unfit to teach, engaged in immoral conduct, was dishonest and disobeyed
school laws. The finding that he was unfit to teach itself was enough to warrant
Thompson’s dismissal. The District was concerned reinstating Thompson would subject
them to liability and that students would be further victimized. The District insisted that
Morrison mandated dismissal. The District contended the arbitrator abused its discretion
by discrediting the accounts of multiple students regarding discrimination based on being
part of the LGBT community. However, the District did not argue which of the
statement of charges should have been found true. Further, the arbitrator improperly
credited student evaluations, which were hearsay as Thompson did not call these students
38
to testify. The District concluded that a community college district could not under any
circumstances be required to retain a faculty member who was found unfit to teach.
Thompson filed a responding brief. Thompson argued that the trial court had to
afford a strong presumption of correctness to the arbitrator’s findings. Further, it was the
arbitrator’s decision as to the appropriate penalty to be imposed. Although the arbitrator
found there was sufficient cause for disciplinary action, it did warrant terminating
Thompson. The evidence supported only a 90-Day suspension.
The District filed a reply to Thompson’s brief. The District again argued that the
finding that Thompson was unfit to teach required his dismissal.
The hearing on the petition was held on July 9, 2019 after the trial court issued its
tentative ruling that it was going to deny the petition. The District requested a written
statement of decision. The trial court first noted that it did not read Code of Civil
Procedure section 632 as requiring a written statement of decision if the hearing was less
than eight hours. The trial court ruled it did not have to issue a written statement of
decision as the matter was only going to take approximately 20 minutes.
Counsel for the District argued they were “really challenging” the fact that after
finding Thompson unfit for teaching, which meant he had a defective temperament that
could not be corrected, it was inconsistent under the Education Code to reinstate him.
The District noted, “In reaching that determination, he made findings of fact, and we
agreed.”
The trial court first noted that it could find no case law to support that once a
determination of unfitness was found it meant automatic dismissal. It was within the
39
discretion of the arbitrator. Counsel for the District responded that a finding of unfitness
meant a defective temperament as a matter of law that cannot be corrected. Further,
every case in which a teacher was found unfit, they were terminated. The District argued
the arbitrator abused his discretion. The District contended that Thompson had not
apologized and continually engaged in the conduct. He had defective temperament that
could not be changed. He would continue to behave this way and the District would be
liable. Thompson argued that the arbitrator never found he had defective temperament.
The trial court adopted the tentative ruling and denied the petition.
Judgment adopting the tentative ruling and denying the petition was entered on
August 9, 2019.
DISCUSSION11
The District essentially argues on appeal that the arbitrator and trial court erred by
finding that some of the charges were not supported by the evidence; and by finding that
Thompson should only be suspended for 90 days rather than be dismissed.
11 The College did not reinstate Thompson after the denial of the petition despite the 90-day suspension period having long since passed. The parties were asked, on this court’s own motion, to provide supplemental briefing on whether the appeal should be dismissed based on the disentitlement doctrine. “ ‘ “A trial court’s judgment and orders, all of them, are presumptively valid and must be obeyed and enforced. [Citation.]” ’ [Citation.] [¶] ‘An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order.” (Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, 1390.) “Appellate disentitlement is a discretionary doctrine that must be applied in a manner that takes into account the equities of the individual case.” (People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 901, italics added.) After consideration of the supplemental briefing, we do not exercise our discretion to impose the doctrine.
40
A. STANDARD OF REVIEW
“When a school district seeks to dismiss a permanent employee, . . . , for immoral
conduct or evident unfitness for service, the [school district] must hold a hearing to
determine whether the charged conduct occurred and, if it did, what the proper remedy
should be.” (Crawford v. Commission on Professional Competence of Jurupa Unified
School Dist. (2020) 53 Cal.App.5th 327, 336 (Crawford).) “The governing board of a
community college district may seek the dismissal of a regular (tenured) employee for
one of ten specific causes” pursuant to Education Code section 87732. (West Valley-
Mission Community College District v. Concepcion (1993) 16 Cal.App.4th 1766, 1773
(West Valley).)
Education Code section 87732 provides, pertinent to this appeal that, “No regular
employee or academic employee shall be dismissed except for one or more of the
following causes: [¶] (a) Immoral or unprofessional conduct. [¶] (b) Dishonesty.
[¶] . . . [¶] (d) Evident unfitness for service. [¶] . . . [¶] (f) Persistent violation of, or
refusal to obey, the school laws of the state or reasonable regulations prescribed for the
government of the community colleges by the board of governors or by the governing
board of the community college district employing him or her.”
Education Code section 87667 provides “A contract or regular employee may be
dismissed or penalized for one or more of the grounds set forth in Section 87732.” The
disciplinary proceeding is heard by an arbitrator who “shall determine” whether there is
cause, and if so, the precise penalty to be imposed. (Educ. Code, § 87675.) Here, the
arbitrator found that the District had proved Education Code section 87732, subdivisions
41
(a), (b), (d) and (f), and “penalized” Thompson by imposing a 90-day suspension without
pay. The District appealed by filing its petition.
“Code of Civil Procedure section 1094.5 provides a trial court reviewing the
decision of an administrative agency exercises its independent judgment in reviewing the
evidence and that an ‘abuse of discretion is established if the court determines that the
findings are not supported by the weight of the evidence.’ [Citation.] Under the
independent review standard, the trial court may weigh the credibility of witnesses.”
(San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194
Cal.App.4th 1454, 1461 (San Diego).) “ ‘In a proceeding on a writ of administrative
mandate, “the party challenging the administrative decision bears the burden of
convincing the court that the administrative findings are contrary to the weight of the
evidence.” [Citation.]’ [Citation.] ‘Though the trial court is required to exercise its
independent judgment on the evidence, it is to give a ‘strong presumption of correctness’
to the [arbitrator]’s findings.’ ” (Crawford, supra, 53 Cal.App.5th at p. 336.)
“ ‘After the superior court makes an independent judgment upon the record of an
administrative proceeding, [the] scope of review on appeal is limited.’ [Citation.] We
must sustain the trial court’s findings if they are supported by substantial evidence.
[Citation.] In reviewing the evidence, we resolve all conflicts in favor of the party
prevailing at the trial court level and must give that party the benefit of every reasonable
inference in support of the judgment. ‘ “ ‘When more than one inference can be
reasonably deduced from the facts, the appellate court cannot substitute its deductions for
those of the superior court.’ ” ’ ” (San Diego, supra, 194 Cal.App.4th at p. 1461.) We
42
will discuss the standard of review for the penalty imposed by an arbitrator and affirmed
by the trial court, post.
We first note that the District argues the trial court erred by refusing to issue a
statement of decision. The trial court was required to issue such a decision. (Giuffre v.
Sparks (1999) 76 Cal.App.4th 1322, 1326, fn. 3 [a hearing on a petition for writ of
mandamus is a trial of a question of fact requiring a statement of decision].) Such error
does not require automatic reversal. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) We
conclude, post, that the arbitrator, and the trial court, by denying the petition, abused their
discretion in imposing a 90-day suspension instead of a dismissal. As such, the District
cannot show prejudice for the trial court’s decision not to issue a statement of decision
either orally or in writing.
B. FINDINGS ON STATEMENT OF CHARGES
The District makes specific arguments on appeal that the trial court and the
arbitrator findings on the unsustained charges were not supported by substantial evidence.
This includes the findings that the audiotape of the class lecture was not evidence of
gender bias;12 the finding that Thompson did not discourage students from presenting
views different than his own; by not finding that Thompson targeted students based on
protected status; finding that Thompson did not cause Krista to be humiliated based on
her affiliation with the LGBT community; finding that Thompson did not treat Derian
inequitably based on her sexual orientation; and that Thompson did not make a physical
12We have already concluded that the arbitrator did find the audiotape showed some gender bias.
43
threat to Hendrick. The District further contends the trial court and the arbitrator erred by
finding that allegations prior to the issuance of the 90-Day Notice could not form the
basis of the discipline.
Despite the arbitrator not finding all of the charges true, and essentially relying on
the evidence after the 90-Day Notice, he still found that Thompson was subject to
dismissal pursuant to Education Code section 87732. Further, the arbitrator found all of
the Morrison factors true finding that Thompson was unfit to teach. The charges that the
arbitrator found true, and the trial court affirmed by denying the petition, combined with
the lack of any evidence to suggest Thompson’s behavior would change, are sufficient to
support that Thompson should have been dismissed rather than suspended.13
C. DISMISSAL
The District contends the trial court and arbitrator abused their discretion by
finding that Thompson should not be dismissed. It contends the arbitrator and the trial
court failed to consider the District’s potential liability from Thompson’s conduct.
Further, by finding that Thompson was unfit to teach, as evidenced by finding all of the
Morrison factors were supported by the evidence, he could not be employed by the
District. Morrison mandated his dismissal. Further, his immoral conduct, dishonesty and
failure to obey school laws also warranted his dismissal.
13 We also note that the District did not raise any specific arguments in the briefing on the petition about the findings of fact. The District stated at oral argument that it agreed with the findings. The failure to raise an issue in a petition for writ of mandate waives the issue on appeal. (Crawford, supra, 53 Cal.App.5th at p. 343.) This is an additional reason that the findings of fact by the arbitrator and affirmed by the trial court need not be addressed on appeal.
44
“The California Supreme Court has interpreted the statutes involving discharge of
teachers for the listed causes. Terms such as immoral conduct, unprofessional conduct,
or moral turpitude, are so general that they must be given meaning by relation to the
particular profession involved. [Citation.] In other words, a teacher may have committed
an immoral act, but unless it indicates his unfitness to teach, it is not an appropriate basis
for discharge.” (West Valley, supra, 16 Cal.App.4th at pp. 1774-1775.)
In determining whether an individual is unfit to teach, the following factors may
be considered: “[T]he likelihood that the conduct may have adversely affected students
or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness
in time of the conduct, the type of teaching certificate held by the party involved, the
extenuating or aggravating circumstances, if any, surrounding the conduct, the
praiseworthiness or blameworthiness of the motives resulting in the conduct, the
likelihood of the recurrence of the questioned conduct, and the extent to which
disciplinary action may inflict an adverse impact or chilling effect upon the constitutional
rights of the teacher involved or other teachers.” (Morrison, supra, 1 Cal.3d at pp. 229-
230, fns. omitted.) “These factors are relevant to the extent that they assist the board in
determining whether the teacher’s fitness to teach, i.e., in determining whether the
teacher’s future classroom performance and overall impact on his students are likely to
meet the [school district’s] standards.” (Ibid.)
Here, the arbitrator found all of the Morrison factors had been met. The District
insists this mandated dismissal of Thompson. However, there is no statutory or case law
to support such claim. It appears, from both the cases and the language of Education
45
Code section 87667, that even if the arbitrator finds each of the Morrison factors are
evident, he still has the discretion to impose discipline short of a dismissal.
“ ‘ “The penalty imposed by an administrative body will not be disturbed in
mandamus proceedings unless an abuse of discretion is demonstrated. . . . Neither an
appellate court nor a trial court is free to substitute its discretion for that of the
administrative agency concerning the degree of punishment imposed.” [Citations.]’ ‘[I]n
a mandamus proceeding, an appellate court vis-a-vis the trial court, conducts a de novo
review concerning possible abuse of discretion by the administrative agency. [Citation.]
The trial court’s determination of abuse or nonabuse of discretion by the administrative
agency is of no concern to the appellate court. The appellate court gives no deference to
the trial court’s determination. It makes its own determination, de novo. [¶] Conversely,
. . . in a mandamus proceeding an appellate court vis-a-vis the administrative agency,
does not independently or “de novo” determine penalty. “[A] court cannot substitute its
discretion for that of the administrative agency on the degree of punishment to be
imposed.” ’ ” (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404; Cate v.
State Personnel Board (2012) 204 Cal.App.4th 270, 284.)
However, “[W]hile the administrative body has a broad discretion in respect to the
imposition of a penalty or discipline, ‘it does not have absolute and unlimited power. It is
bound to exercise legal discretion, which is, in the circumstances, judicial discretion.’
[Citation.] In considering whether such abuse occurred in the context of public employee
discipline, we note that the overriding consideration in these cases is the extent to which
the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the
46
public service.’ [Citation.] Other relevant factors include the circumstances surrounding
the misconduct and the likelihood of its recurrence.” (Skelly, supra, 15 Cal.3d at pp.
217-218.)
In West Valley, supra, 16 Cal.App.4th 1766, Winston H. Miller, a community
college teacher, was arrested and charged with selling cocaine. The college district began
proceedings for dismissal pursuant to Education Code section 87732. Miller was
acquitted of the criminal charges because the cocaine found was excluded from evidence
but it was admitted at the administrative hearing on his dismissal. (West Valley, at pp.
1770, 1773.) The arbitrator determined that Miller was guilty of immoral conduct, but
was not unfit to teach. The arbitrator imposed a one-year suspension without pay. (Ibid.)
The college district filed a petition for writ of mandate. The trial court issued a writ
directing the arbitrator to order Miller’s dismissal and no back pay. Miller appealed
contending, among other things, that the trial court abused its discretion in making its
own penalty determination and by finding he was unfit to teach. (Ibid.)
On appeal, the appellate court reviewed whether the trial court properly
determined that the Morrison factors were supported by the evidence, which rendered
Miller unfit to teach. (West Valley, supra, 16 Cal.App.4th at p. 1776.) The appellate
court found, “The superior court’s findings were sufficient to support its ultimate finding
of unfitness to teach.” (Id. at p. 1778.)
The appellate court then addressed whether the trial court properly determined the
appropriate remedy was dismissal, rather than a one-year suspension. The court noted
that, “Review of the penalty determination . . . traditionally differs from the review of the
47
evidence and factual findings. The superior court upholds the penalty determination of
the agency or arbitrator, unless there has been a manifest abuse of discretion. [Citations.]
The appellate court uses the same standard as the superior court, reviewing the
arbitrator’s penalty for manifest abuse of discretion.” (West Valley, supra, 16
Cal.App.4th at pp. 1778-1779.)
The appellate court in West Valley referred to County of Santa Clara v. Willis
was accused of making inappropriate sexual advances to paralyzed patients and also to
other hospital employees, of being insensitive to patients’ needs, and of failing to do his
job properly. After administrative proceedings the hospital board determined he had
engaged in gross misconduct, but reinstated him without backpay. [Citation.] The
superior court granted a peremptory writ of mandate, finding the board had abused its
discretion and ordering it to terminate the employee. [Citation.] [¶] This court affirmed
the trial court’s order granting the petition for a writ, based on the singular circumstances
of the case. [Citation.] We agreed with the superior court that the hospital board had
abused its discretion in reinstating Willis. [Citation.] While an administrative body has
broad discretion in determining an appropriate penalty, it does not have absolute and
unlimited power, but must exercise judicial discretion. We affirmed the trial court’s
ruling ordering the discharge of the employee.” (West Valley, supra, 16 Cal.App.4th at p.
1779.)
The West Valley court concluded that, like Willis, the penalty imposed by the trial
court was correct. It found, “The arbitrator abused his discretion in selecting the penalty
48
of one year’s suspension. The idea of a cocaine-dealing community college instructor
communicating moral standards to students is just as repugnant as a hospital aide
fondling the genitals of helpless patients with spinal cord injuries. Reasonable minds
cannot differ that entrusting impressionable young minds to a teacher who facilitated the
sale of a kilo of cocaine would be dangerous. Reasonable minds cannot differ on the
propriety of discharge as a penalty for engaging in this immoral conduct. Under the
unique circumstances of this case the superior court did not err in determining the
appropriate penalty.” (West Valley, supra, 16 Cal.App.4th at p. 1779.)
In San Diego, supra, 194 Cal.App.4th at p. 1457,14 the employee, Frank
Lampedusa, was the dean of students at a middle school. The principal stated that
Lampedusa did a good job and was being considered for a vice principal position. An
anonymous call was made to the school district that Lampedusa had an advertisement on
Craigslist “ ‘men seeking men’ Web page soliciting sex.” The advertisement described in
detail the sexual acts Lampedusa wanted to engage in and included photographs of his
face, anus and genitalia. The advertisement did not list his name or profession. (Id. at
pp. 1458-1459.) The school district advised Lampedusa to remove the advertisement and
he immediately removed it. Lampedusa continued to work for one more month and then
was placed on administrative leave. He was then served with a notice of dismissal. (Id.
at p. 1459.) At a hearing in front of the Commission on Professional Competence
14 In San Diego, the teacher was dismissed pursuant to Evidence Code section 44932, which contains similar categories, including evident unfitness for service, as reasons for dismissal.
49
(Commission), Lampedusa testified he did not intend the advertisement to be seen by
students. The Commission affirmed no student had seen the advertisement. It concluded
that although the advertisement was vulgar and inappropriate, there was no connection
with him being a dean of students at the middle school. It found the school district failed
to show Lampedusa was unfit to teach by a reason of temperamental defect and that he
did not engage in immoral conduct such that he was unfit to teach. Further, there was no
likelihood of reoccurrence. (Id. at p. 1460.) The school district filed a petition for writ of
mandate. The trial court adopted the Commission’s findings and the school district
appealed. (Id. at p. 1461.)
On appeal, the appellate court reviewed the Morrison factors and found the
Commission had improperly rejected them. The court noted, “ ‘ “ ‘[T]he calling [of a
teacher] is so intimate, its duties so delicate, the things in which a teacher might prove
unworthy or would fail are so numerous that they are incapable of enumeration in any
legislative enactment. . . . His ability to inspire children and to govern them, his power as
a teacher, and the character for which he stands are matters of major concern in a
teacher's selection and retention.’ ” [Citation.] [¶] There are certain professions which
impose upon persons attracted to them, responsibilities and limitations on freedom of
action which do not exist in regard to other callings. Public officials such as judges,
policemen and schoolteachers fall into such a category. [¶] . . . “A teacher . . . in the
public school system is regarded by the public and pupils in the light of an exemplar,
whose words and actions are likely to be followed by the [students] coming under [his]
care and protection.” ’ ” (San Diego, supra, 194 Cal.App.4th at pp. 1463-1464.) The
50
court noted that Lampedusa, during his testimony, had stated that he previously posted
these advertisements and placed the onus on the parents and students to not access his
site. (Id. at p. 1464.) The appellate court found also that the Commission erred by
finding that Lampedusa would not commit such acts again, as he had admitted to posting
the advertisement several times before. Further, he did not believe he had done anything
immoral. Finally, his posting of this sexually explicit content showed a serious lack of
judgment. (Id. at p. 1465.)
The appellate court in San Diego concluded that “The nexus between
Lampedusa’s conduct and his fitness to teach has been established. It is evident that his
conduct was ‘detrimental to the mission and functions of [his] employer.’ [Citation.] . . .
The conduct itself, together with Lampedusa’s failure to accept responsibility or
recognize the seriousness of his misconduct given his position as a teacher and role
model, demonstrates evident unfitness to teach.” (San Diego, supra, 194 Cal.App.4th at
p. 1465.) The appellate court also found that he engaged in immoral conduct. The
appellate court concluded that “Lampedusa’s conduct constituted grounds for dismissal
based upon his evident unfitness to teach and his immoral conduct.” (Id. at p. 1467.)
Similarly, in Cate v. State Personnel Board, supra, 204 Cal.App.4th 270, the
California Department of Corrections and Rehabilitation filed a petition for writ of
administrative mandamus challenging an administrative law judge’s (ALJ) decision to
impose a 30-day suspension rather than termination of a correctional officer whose
actions at the California Institute for Women were found to be inexcusable neglect of
duty, dishonest, he engaged in discourteous treatment of inmates and that he lied to his
51
supervisor. The trial court reversed the decision of the ALJ finding an abuse of discretion
in imposing a suspension rather than termination. (Id. at pp. 279-280.) The correctional
officer sought review, and the appellate court affirmed the judgment of the trial court
finding that the ALJ found that the correctional officer’s misconduct may be repeated
“and that such misconduct would likely result in harm to the public service . . . the
‘overriding’ consideration in the determination of penalty is the potential for harm to the
public service.” (Id. at p. 285.)
In Kolender v. San Diego County Civil Service Commission (2005) 132
Cal.App.4th 716, a deputy sheriff was dismissed by the sheriff’s department because he
lied about another deputy’s physical abuse of an inmate. The sheriff’s deputy appealed to
the San Diego Civil Service Commission, which reduced his penalty to a 90-day
suspension. (Id. at pp. 718, 720.) After the trial court denied the sheriff department’s
petition for writ of mandamus disputing the penalty determination, on appeal, the court
held that such reduction was an abuse of discretion. The court explained: “ ‘An abuse of
discretion occurs where, as here, the administrative decision manifests an indifference to
public safety and welfare. “In considering whether such abuse occurred in the context of
public employee discipline, we note that the overriding consideration in these cases is the
extent to which the employee’s conduct resulted in, or if repeated, is likely to result in,
‘[h]arm to the public service.’ [Citations.] Other relevant factors include the
circumstances surrounding the misconduct and the likelihood of its recurrence.”
[Citation.] The public is entitled to protection from unprofessional employees whose
conduct places people at risk of injury and the government at risk of incurring liability.’
52
[Citation.] Accordingly, this is not a case where reasonable minds can differ with regard
to the appropriate disciplinary action.” (Id. at p. 721.)
Here, Thompson’s conduct in the classroom, which significantly impacted his
students, coupled with the evidence that he had no remorse or plans to change his
behavior, renders the decision to impose just a 90-day suspension a manifest abuse of
discretion in this case. Putting Thompson back in the classroom provided no protection
to his students. Both Kolender and Cate emphasize the harm to the public service by
repeated bad behavior. In San Diego, the appellate court put great weight on the fact of
reoccurrence and that Lampedusa accepted no responsibility for his actions. Similarly,
here, Thompson took no responsibility for his actions, despite students testifying at the
arbitration hearing that they were upset and even cried during their testimony. Thompson
expressed he felt his tenure and right to academic freedom allowed him to discuss
controversial subjects even if it upset students. He felt his academic freedom allowed
him to offend his students.15 Thompson said he had no reason to change after the 90-Day
15 The dissent appropriately recognizes that the First Amendment protects public community college professors from discipline “based on student offense alone.” (Dissent at p. 6, fn. 3.) At a general level, Thompson was correct that his academic freedom gave him broad latitude to challenge and even upset students. As this case comes to us, however, it does not present such an issue of academic freedom. By the time of the arbitration hearing, both sides “agreed such instructional latitude was not unlimited” and subject to a “balancing test” under Pickering v. Board of Education (1968) 361 U.S. 563. Considering those legal positions, the arbitrator found that there is a difference between presenting challenging ideas and “targeting students to such a level to harass, threaten, ridicule, or impose one’s views.” Thus, the arbitrator found that Thompson’s comments about women “had a negative effect on his students and were contrary to established College policies which prohibited discrimination and harassment” and that an academic institution “should not have to tolerate such behavior at the expense of its students.” [footnote continued on next page]
53
Notice. In fact, the arbitrator specifically found that Thompson’s conduct was likely to
recur. (Morrison, supra, 194 Cal.App.4th at pp. 229-230.)
The fact that Thompson had no remorse and seemingly would not change his
behavior, and his gender bias, was not mitigated by the student evaluations or good
faculty reviews. The arbitrator did not provide his reasoning for finding that despite
Thompson degrading women in class, trying to influence a student to drop charges
against him, and making a false claim to an investigator, and specifically finding that
Thompson had no remorse, that the positive evaluations from other students and good
faculty reviews were relevant to mitigate such behavior. That some students were not
offended by Thompson in no way mitigated the impact his behavior had on the students
who were upset by comments made by Thompson. The arbitrator noted also that not all
of the charges were sustained. However, the charges that were sustained warranted
serious discipline.16
Sufficient evidence was presented that Thompson degraded women in class and
tried to influence a student who had filed a complaint. Angela testified that she felt
These findings are not challenged here. At this stage, the relevance of Thompson’s absolutist view about his academic freedom is simply that it provided no indication that he was willing to consider curbing even classroom conduct found to be harassing.
16 The dissent contends the arbitrator “could reasonably find no significant likelihood of reoccurrence.” The dissent further argues that the arbitrator did not make a specific finding on recurrence. (Dissent at p. 4.) However, the record supports that the arbitrator did find a likelihood of recurrence. The arbitrator specifically stated that he had found that all the Morrison factors were supported by the evidence, which included likelihood of recurrence. We rely on the detailed findings in the arbitrator’s decision rather than what the arbitrator “could” have found.
54
degraded. Casella testified that such degrading comments could cause depression and
anxiety. Some students were apparently not impacted by Thompson’s comments, but that
did not mean the impact on the students who testified at the arbitration hearing was any
less. The arbitrator found Thompson unfit to teach but failed to give import to the
factors—including the chance of recurrence and the impact on his students—in reaching
his decision to only impose a suspension.
Thompson contends that the arbitrator never found that Thompson had a
temperamental defect, which was required for him to be dismissed. In Woodland Joint
Unified School District v. Commission on Professional Competence (1992) 2 Cal.App.4th
1429 (Woodland), the court addressed a seemingly different analysis to the Morrison
factors. The appellate court in reviewing the trial court’s grant of a petition for writ of
mandate ordering termination of a teacher, addressed the meaning of “Evident Unfitness
for Service” within the meaning Education Code section 44932. (Woodland, at p. 1441.)
The court noted, “ ‘evident unfitness for service’ ” . . . means ‘clearly not fit, not adapted
to or unsuitable for teaching, ordinarily by reason of temperamental defects or
inadequacies.’ Unlike ‘unprofessional conduct,’ ‘evident unfitness for service’ connotes
a fixed character trait, presumably not remediable merely on receipt of notice that one’s
conduct fails to meet the expectations of the employing school district.” (Id. at pp. 1444-
1445, fn. omitted.) If an analysis of the Morrison criteria indicates a teacher is unfit for
service, “the next step is to determine whether the ‘unfitness’ is ‘evident’; i.e., whether
the offensive conduct is caused by a defect in temperament.” (Woodland, at p. 1445.)
55
Here, it is not clear that the arbitrator considered whether Thompson suffered from
a temperamental defect. However, the purpose of such determination is a finding of “a
fixed character trait, presumably not remediable merely on receipt of notice that one’s
conduct fails to meet the expectations of the employing school district.” (Woodland,
supra, 2 Cal.App.4th at p. 1444.) Here, the arbitrator concluded that Thompson had a
certain “arrogance” about him when he told his students that tenure gave him the right to
do whatever he wanted. Thompson accepted no responsibility and showed no remorse.
Further, he ignored the directives in the 90-Day Notice. Th arbitrator found that
Thompson was gender biased. Nothing in the evidence supports that Thompson would
change his beliefs. This supported that Thompson was arrogant and gender biased,
character traits that were not likely to be changed despite the findings of the actions of the
District or a 90-day suspension. Thompson had exhibited these behaviors since at least
2013. As such, the evidence supports evident unfitness as defined in Woodland.
Finally, Thompson contends that some of the misconduct alleged against him was
protected by the First Amendment. However, in the trial court, Thompson did not file his
own petition for writ of mandate claiming that the arbitrator’s findings were incorrect or
contesting the 90-day suspension. (Wood v. Superior Court of San Diego (2020) 46
Cal.App.5th 562, 588, fn. 5.) As such, he has waived any claim that the arbitrator’s
findings were incorrect.
In sum, in imposing discipline against Thompson, the arbitrator recognized that
Thompson had no remorse and that he took no responsibility for his actions. Not once
did Thompson express sympathy for his students. The arbitrator concluded that
56
Thompson had made degrading comments about women, he lied to an investigator and
tried to convince one of his students to drop a complaint against him. As for the
degrading comments about women that Thompson made in class, the arbitrator concluded
that “[a]n academic institution should not have to tolerate such behavior at the expense of
its students.” Thompson refused to comply with the 90-Day Notice, he offered the
controversial video as extra credit despite knowing that it caused an uproar on campus
when he emailed it to faculty, and he was dishonest.
Despite these findings, the arbitrator decided to return Thompson to the classroom
without identifying any reason why Thompson’s behavior would change as there was no
indication he would be provided any training or tools to change his behavior. As the
arbitrator found, there was a likelihood that Thompson would repeat his behavior, and
Thompson’s lack of remorse underscores that likelihood, as our record nowhere shows
any commitment by him to change. The College should not be expected to allow
Thompson to teach classes with the fear that he would repeat his past behaviors. Under
the unique circumstances of this case, the arbitrator abused its discretion by failing to
give proper weight to the possibility of recurrence and the impact on Thompson’s
students. The proper penalty was dismissal.
57
DISPOSITION
The judgment is reversed. The superior court is directed to issue a writ of mandate
instructing the arbitrator to set aside its penalty decision of a 90-day suspension and
render a decision dismissing Thompson. Each party is to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
I concur:
RAPHAEL J.
58
[Riverside Comm. College Dist. v. Biersmith; Thompson, E073818]
RAMIREZ, P. J.
I respectfully concur in part and dissent in part.
I
IMPOSING A SUSPENSION WAS NOT AN ABUSE OF DISCRETION
I agree that the District1 has forfeited any challenge to the arbitrator’s factual
findings. (Maj. opn. at p. 44, fn. 13.) I also agree that “even if the arbitrator finds each
of the Morrison factors are evident, he still has the discretion to impose discipline short
of a dismissal.” (Maj. opn. at pp. 45-46.) However, I do not agree that the arbitrator
abused his discretion by ruling that the appropriate penalty was a 90-day suspension
rather than dismissal. (Maj. opn. at pp. 44-57)
Key to my decision is the highly deferential standard of review.
“Neither an appellate court nor a trial court is free to substitute its discretion for
that of the administrative agency concerning the degree of punishment imposed.
[Citation.]” (Barber v. State Personnel Board (1976) 18 Cal.3d 395, 404.) “Judicial
review of an agency’s assessment of a penalty is limited, and the agency’s determination
will not be disturbed in mandamus proceedings unless there is an arbitrary, capricious or
patently abusive exercise of discretion by the agency. [Citation.]” (Flippin v. Los
Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279.)
1 I use the same defined terms as does the majority opinion.
1
The abuse of discretion “‘“ . . . must appear very clearly before the courts will
interfere.” [Citations.]’ [Citation.]” (Landau v. Superior Court (1998) 81 Cal.App.4th
191, 218.) “If reasonable minds may differ with regard to the propriety of the
disciplinary action, no abuse of discretion has occurred. [Citation.]” (Flippin v. Los
Angeles City Bd. of Civil Service Commissioners, supra, 148 Cal.App.4th at p. 279.)
This is true even if the penalty seems to be too harsh or too lenient in the court’s opinion.
(Landau v. Superior Court, supra, at p. 221.)
“‘An abuse of discretion occurs where . . . the administrative decision manifests an
indifference to public safety and welfare. “In considering whether such abuse occurred in
the context of public employee discipline, we note that the overriding consideration in
these cases is the extent to which the employee’s conduct resulted in, or if repeated, is
likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors
include the circumstances surrounding the misconduct and the likelihood of its
recurrence.” [Citation.] The public is entitled to protection from unprofessional
employees whose conduct places people at risk of injury and the government at risk of
incurring liability.’ [Citation.]” (Kolender v. San Diego County Civil Service Com.
(2005) 132 Cal.App.4th 716, 721.)
The majority astutely focuses on the two key issues in this case: The nature of the
harm shown, and the likelihood of recurrence. (Maj. opn. at p. 54.) If the evidence
conclusively showed that Thompson “‘place[d] people at risk of injury’” (maj. opn. at
2
p. 52), and if it also conclusively showed a likelihood of recurrence, then dismissal was
the only possible penalty. But if not, then not.
The arbitrator found that the bulk of the allegations against Thompson were not
true. He found that Thompson did not discriminate against Krista based on a perception
that she was gay or LGBT-affiliated. He found that Thompson did not discriminate
against Derian based on her sexual orientation. He rejected Dr. Hendrick’s claim that
Thompson’s comment about a “sword” was a physical threat. He further found that
Thompson did not discourage students from expressing views that were different from
his. He declined to consider incidents that occurred before the issuance of the 90-Day
Notice, on the ground that “[t]hose shortcomings and corresponding corrective action
were already addressed in that transmittal.”2
He did find that Thompson had tried to get Derian to drop her complaint and had
made a false statement to the investigator — namely, that he was unaware of the status of
Derian’s complaint. It must be remembered, however, that he did so under the stress of
an investigation based on Derian’s allegations, which the arbitrator eventually found to
be false. Moreover, his false statement does not appear to have been material to the
investigation. In any event, this was not conduct in the classroom; it did not reflect on his
fitness to teach — at least not any more than would any other general moral turpitude.
2 A recitation of the evidence underlying these charges is therefore irrelevant to the arbitrator’s choice of penalty.
3
Certainly it was not an abuse of discretion for the arbitrator to find that it called for a
suspension rather than dismissal.
This leaves only the finding that “Thompson made statements derogatory towards
women . . . .” As to this finding, the arbitrator could reasonably find that neither “the
chance of recurrence” nor “the impact on [Thompson’s] students” (maj. opn. at p. 54)
required dismissal.
A. Likelihood of Recurrence.
First, the arbitrator could reasonably find no significant likelihood of recurrence.
The arbitrator did not make any express finding that Thompson’s conduct was
likely to recur. (But see maj. opn. at p. 53.)3 Rather, he found that “there appeared to be
a lack of remorse or acceptance of responsibility on Thompson’s part,” which he deemed
an “aggravating circumstance[].” This was a description of Thompson in the past; it was
not a finding that, even after a 90-day suspension, Thompson would be unable to change
his behavior in the future. To the contrary, by stating that “Thompson owes it to his
future students . . . to present a wider and/or more balanced approach in his course
3 The arbitrator did find that all of the Morrison factors were satisfied. The Morrison factors, however, go to primarily whether there is cause for discipline, not so much to what discipline is appropriate. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229; Ricasa v. Office of Administrative Hearings (2018) 31 Cal.App.5th 262, 285.) The arbitrator could reasonably find that there was some likelihood of recurrence if Thompson received no discipline at all, but no likelihood of recurrence if Thompson received a 90-day suspension. As he could make such a finding — and as it would support his decision — we must assume he did so find.
4
presentations,” and by ordering a suspension rather than dismissal, the arbitrator
implicitly found that Thompson could use a “more balanced approach” in the future.
This implied finding was supported by substantial evidence. Thompson agreed
that he was “not to make statements in class that denigrate women.” He further agreed
that he was “prohibited from making statements in class to the effect that women should
not be out of their home . . . .” He acknowledged that he should not “denigrate” women
or present “negative stereotypes” of women unless his statements were supported by
academic research. Thompson denied either believing or “advocating” that women with
children should not work. While the arbitrator found that this denial was false, it showed
that he was not stubbornly insisting on expressing gender bias in the classroom.
The arbitrator did find that, even after receiving the 90-Day Notice, Thompson
continued to make gender-biased statements. The 90-Day Notice found that he had made
gender-biased statements and directed him not to do so in the future. At the same time,
however, the District made a formal determination that “no violation of District Policy or
Administrative Procedure occurred.” Thompson testified that he was “perplexed” by the
seeming contradiction. He also felt that the very general directives in the 90-Day Notice
did not give him clear guidance. Moreover, the 90-Day Notice stated, “The
Administration will assist you in overcoming these deficiencies.” As the arbitrator found,
however, the administration never did so.
The arbitrator therefore concluded that the 90-Day Notice was “misleading.” He
further found that the administration’s failure to follow up with Thompson was
5
“mitigating.” Thus, the arbitrator could also properly find that Thompson’s failure to
comply fully with the directives in the 90-Day Notice was not evidence that he was likely
to continue to fail to comply in the future.
Thompson showed no “remorse” in part because he sincerely maintained that his
classroom speech was protected by academic freedom under the First Amendment.4 The
arbitrator found that some of Thompson’s allegedly gender-biased statements were
“within the bounds of free expression and academic freedom,” because they were
supported by academic research, but that others were not.5 The arbitrator could reason
that, now that Thompson had obtained a ruling on the scope of his First Amendment
rights, he would comply with it.
4 The majority says that “Thompson . . . felt his . . . right to academic freedom allowed him to discuss controversial subjects even if it upset students. He felt his academic freedom allowed him to offend his students.” (Maj. opn. at p. 53.) He did, and he was correct — the District could not limit his speech based on student offense alone. (See Snyder v. Phelps (2011) 562 U.S. 443, 458 [“‘the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.’”]; Demers v. Austin (9th Cir. 2014) 746 F.3d 402, 411-413 [academic employee speech is protected under the First Amendment].) 5 The arbitrator specifically found that Thompson’s statement that women “are prone to be catty” was not protected speech because there was no “academic debate” about it. This was erroneous; in his testimony, Thompson specifically cited support for it in the academic literature. (See T. Ghose, Mean Girls: Women Evolved to Be Catty? (Oct. 27, 2013), available at https://www.livescience.com/40717-indirect-aggression- between-females-works.html, as of Oct. 15, 2021; T. Vaillancourt, et al., Abstract, Intolerance of Sexy Peers: Intrasexual Competition Among Women (Sept. 19, 2011), available at <https://pubmed.ncbi.nlm.nih.gov/21932332>, as of Oct. 15, 2021.)
I agree with the majority that Thompson cannot challenge this finding now because he failed to cross-petition below. (Maj. opn. at pp. 55-56.) Nevertheless, the evidence shows that Thompson’s First Amendment rights were genuinely under attack.
6
In a criminal case, the defendant’s lack of remorse is not aggravating unless the
defendant admits guilt (or the evidence of guilt is not in conflict). (People v. Key (1984)
153 Cal.App.3d 888, 900.) This is because lack of remorse is relevant to show a
likelihood of recurrence only when a defendant acknowledges guilt, not when the
defendant maintains his or her innocence. (Id. at p. 900.) The arbitrator could reason
similarly that Thompson’s lack of remorse, although an aggravating factor, did not show
a likelihood of recurrence.
Finally, in evaluating the likelihood of recurrence, the arbitrator had the benefit of
observing Thompson while he testified. “‘“[A]n administrative hearing officer’s
proposed decision is entitled to great weight because of his [or her] opportunity to
observe the witnesses and weigh their testimony in light of their demeanor.”’ [Citation.]”
(County of Sonoma v. Gustely (2019) 36 Cal.App.5th 704, 712, italics omitted.)
B. Impact on Students.
Second, the arbitrator could reasonably find that Thompson’s gender-biased
statements did not have a significant impact on his students. To the extent that there was
conflicting evidence on this point — and to the extent that conflicting inferences could be
drawn from the evidence — we must view the evidence in the light most favorable to the
arbitrator’s choice of discipline.
Certainly several students testified that they found Thompson’s gender-biased
statements to be “offensive” or “degrading.” However, offense alone is not necessarily
7
harm. There was no evidence that any student dropped out of school, or even dropped
out of Thompson’s class, as a result of any gender-biased statements.
The arbitrator was not bound by Casella’s testimony that gender-based harassment
“could” cause “anxiety, depression, difficulty concentrating, possibly even appetite/sleep
disturbance, poor self-esteem,” when none of Thompson’s students reported any such
conditions.
The record does not show that any student actually cried while testifying at the
arbitration.6 (But see maj. opn.at p. 53.) Apparently Derian got upset while testifying,
but only while discussing the conversion therapy video and Thompson’s email to her.
Angela got “emotional” about the conversion therapy video. No student displayed any
emotional distress resulting specifically from Thompson’s gender-biased statements.
Again, the arbitrator was able to observe the students’ demeanors while testifying. We
must accept his implied findings.
Witnesses also claimed to have been upset by things that the arbitrator found never
actually happened. For example, Krista cried because she felt that Thompson was targeting her
for her LGBT affiliation; the arbitrator found that Thompson never did so. Likewise, Angela
testified that Thompson’s gender-biased statements discouraged her from voicing her own views
in class, but the arbitrator found that “Thompson did not discourage students from presenting in
6 The District asserted in its closing arbitration brief that “[s]everal students became emotional and cried as they testified during the arbitration.” However, “‘[i]t is axiomatic that argument is not evidence.’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 961, fn. 10.)
8
his class points of view that were different from his . . . .” Dr. Hendrick claimed he was upset by
Thompson’s comment about a “sword,” even though immediately afterward, Thompson’s
attorney said, “He doesn’t mean a real sword,” and Thompson added, “Of course not. I’ve
always liked you. This is not personal.” At the arbitration, Dr. Hendrick even admitted that
Thompson’s attorney “got us all squared away by indicating that the sword was a metaphor
for something else.” Hence, the arbitrator was entitled to discount any claims that
students were upset by Thompson’s gender-biased statements.
This bring me to the elephant in the room: A reasonable fact-finder could
conclude that the witnesses against Thompson were biased. Administrators, professors,
LGBT students, and their allies were up in arms over Thompson’s airing of the
conversion therapy video in 2014. After the college investigated this but imposed no
discipline other than sensitivity training, people started coming out of the woodwork to
accuse Thompson of similar sins. Most of them were members of the ALLY program
(Krista and Dr. Steinback) or the Diversity Committee (Sergio, Angela, Victor, Dr.
Broyles).
It was in this context that, as the arbitrator properly found, Thompson’s faculty
and student evaluations were mitigating.7 Those evaluations tended to show that
Thompson’s accusers’ hindsight claims of harm were overblown.
7 The District contends that these evaluations were inadmissible hearsay. The parties stipulated, however, that the evaluations were admissible.
9
Fellow faculty members had visited Thompson’s classroom, including one who
visited a session on “sexism and a sexist society, gender role and gender identity,
biological-based vs. social-based inputs into gender, whether males and females are just
‘naturally’ female and male”, but they reported no inappropriate comments.
Thompson’s student evaluations were “all great.” One fellow faculty member
commented, “Personally, I’d say that when the lowest rating was 58% in the
‘Outstanding’ category, Mr. Thompson must be doing something right.” A majority of
students said that he had no weaknesses. No student reported any gender bias —
apparently not even Krista, who was in his class at the time of the evaluations. One
student specifically said that Thompson had “[n]o bias toward [the] material.”
The arbitrator had doubts about the credibility of Thompson’s accusers, as shown
by his findings that most of the charges against Thompson were not true. On this record,
he could reasonably find that Thompson did make some gender-biased statements — but
not all of the ones alleged. He could also give very little weight to any claims that the
gender-biased statements that Thompson did make adversely affected anyone.
II
THE APPELLATE DISENTITLEMENT DOCTRINE APPLIES
Even apart from the merits, I would dismiss based on the appellate disentitlement
doctrine. The District flagrantly disobeyed the arbitrator’s decision, even after the trial
court reaffirmed it. I see no reason not to apply the doctrine.
10
“‘An appellate court has the inherent power, under the “disentitlement doctrine,”
to dismiss an appeal by a party that refuses to comply with a lower court order.’
[Citation.] ‘“Appellate disentitlement ‘is not a jurisdictional doctrine, but a discretionary
tool that may be applied when the balance of the equitable concerns make it a proper
sanction . . . .’ [Citation.]” [Citation.] No formal judgment of contempt is required; an
appellate court “may dismiss an appeal where there has been willful disobedience or
obstructive tactics. [Citation.]” [Citation.] The doctrine “is based upon fundamental
equity and is not to be frustrated by technicalities.”’ [Citation.]
“The ‘disentitlement doctrine “is particularly likely to be invoked where the
appeal arises out of the very order (or orders) the party has disobeyed.”’ [Citation.]
‘[T]he merits of the appeal are irrelevant to the application of the doctrine.’ [Citation.]”
(United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 166.)
Here, the arbitrator’s decision had the force of a decision of an administrative
agency. (See Ed. Code, § 87675 [incorporating portions of the Administrative Procedure
Act].) The arbitrator has “complete and sole jurisdiction over the matter.” (Ed. Code,
§ 87674.) “The arbitrator shall determine whether there is cause to dismiss or penalize
the employee. If the arbitrator finds cause, the arbitrator shall determine whether the
employee shall be dismissed, the precise penalty to be imposed, and whether the decision
should be imposed immediately or postponed . . . .” (Ed. Code, § 87675.)
Subject to exceptions not applicable here, the arbitrator’s decision “become[s]
effective 30 days after it is delivered or mailed to respondent unless . . . a stay of
11
execution is granted.” (Gov. Code, § 11519; see also Ed. Code, § 87675 [incorporating,
inter alia, Gov. Code, § 11519].) The District’s mandate petition did not automatically
stay the arbitrator’s decision. The District could have applied for a stay, but it did not.
(Code Civ. Proc., § 1094.5, subds. (g), (h).)
The District asserts that “[a]n arbitrator’s award is not directly enforceable; it must
be enforced via a court proceeding.” It cites Code of Civil Procedure section 1286,
which allows a court to confirm, correct, or vacate an arbitration award. Also relevant
are Code of Civil Procedure section 1287.4, which provides, “If an award is confirmed,
judgment shall be entered in conformity therewith,” and Code of Civil Procedure section
1287.6, which provides, “An award that has not been confirmed or vacated has the same
force and effect as a contract in writing between the parties to the arbitration.”
The flaw in this argument is that the arbitration here was not a contractual
arbitration, which would be subject to the provisions of Code of Civil Procedure section
1280 et seq. It was a mandatory arbitration, subject to the provisions of Education Code
section 87674 et seq. (See Levinson Arshonsky & Kurtz LLP v. Kim (2019) 35
Cal.App.5th 896, 904-907 [Code Civ. Proc., § 1280 et seq. does not apply to arbitration
under the Mandatory Fee Arbitration Act, Bus. & Prof. Code, § 6200 et seq.].) Assuming
Code of Civil Procedure section 1280 et seq. applied at all, it did not apply to the extent
that it is inconsistent with Education Code section 87674 et seq. (See Code Civ. Proc.,
§ 1859; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420
[“when a special and a general statute are in conflict, the former controls.”].)
12
As noted, Code of Civil Procedure section 1286.7, provides that an unconfirmed
award is effective as a contract. But when an arbitration is required by statute, not by
contract, this makes no sense. Moreover, it conflicts with the specific finality provisions
of Government Code section 11519, as incorporated by Education Code section 87675.
Accordingly, the District’s refusal to reinstate Thompson was a violation of a final and
effective administrative order.
As if that were not enough, the trial court entered a final judgment denying the
District’s petition. The District’s appeal did not automatically stay the judgment. Much
as with the arbitrator’s decision, the District could have sought a stay, but it did not.
(Code Civ. Proc., § 1094.5, subds. (g), (h)(3) [“If an appeal is taken from a denial of the
writ, the order or decision . . . shall not be stayed except upon the order of the court to
which the appeal is taken.”].) Accordingly, since entry of the judgment, the District’s
continuing refusal to reinstate Thompson has been a violation of a final and effective
court order — the very court order from which it appeals.
The District retorts that Thompson “has not taken any legal action to challenge”
the District’s refusal to reinstate him. However, he had already successfully litigated the
arbitration, in which the arbitrator ordered that he be reinstated; he had already
successfully litigated the mandate proceeding, in which the trial court upheld the
arbitrator’s order. How many times must he prevail before the District will obey?8 In
8 The District’s assertion that the arbitrator’s decision was unenforceable unless and until it was confirmed under Code of Civil Procedure section 1286 makes me wonder: What did the District intend to do if we affirmed the judgment? Did it intend to [footnote continued on next page]
13
this appeal, Thompson is invoking the disentitlement doctrine. That is a sufficient
challenge.
Thus, I reject the District’s only argument — that it has not violated any order. It
does not argue that, if it did violate an order, the violation was not willful. The failure to
obey an order is willful when the party is aware of the order, has the ability to comply,
and knowingly and intentionally does not comply. (In re Aguilar (2004) 34 Cal.4th 386,
389.) Here, the District was aware, first, of the arbitrator’s decision, and then, of the trial
court’s judgment. It had the ability to reinstate Thompson. Nevertheless, it knowingly
and intentionally failed and refused to do so. Its counsel took the position that it did not
have to, because it was going to file (or had filed) this appeal, but that position was
frivolous. Its counsel did not take the position, at least at that time, that the arbitrator’s
order had to be confirmed in order to be enforceable. In any event, that position, too, is
frivolous. The District’s noncompliance was persistent; it violated two separate rulings,
nine months apart. Even after we raised the issue of the disentitlement doctrine, the
District still did not offer or agree to reinstate Thompson. Thus, it satisfactorily appears
that the District’s violation was willful.
Finally the equities favor Thompson, rather than the District, in light of the
significant differential in power and resources between them. It has been nearly three
years since the arbitrator’s decision. During this time, not only has Thompson been
disregard our opinion, too, on the ground that the arbitrator’s decision has never been confirmed?
14
unable to work for the District, he has been unable to work as a teacher anywhere,
because the District’s charges have been hanging over his head. The District argues that
it needed “to protect its . . . students from further misconduct directed at them from
Mr. Thompson.” If so, it should have sought a stay. Self-help under these circumstances
is not allowed. RAMIREZ P. J.
15
AI Brief
AI-generated · verify before citing
Holding. The trial court erred in denying the District's petition for writ of mandate because the arbitrator's finding that the professor was unfit for service under Education Code section 87732 mandated his dismissal, precluding the imposition of a lesser penalty.
Issues
Did the trial court commit reversible error by failing to issue a statement of decision?
Did the arbitrator err in finding that the professor's conduct warranted only a 90-day suspension rather than dismissal after finding him unfit for service?
Could allegations occurring prior to the issuance of the 90-Day Notice form the basis for disciplinary action?
Disposition. Reversed.
Quotations verified verbatim against the opinion
“the arbitrator determined that Thompson engaged in immoral conduct, was dishonest, was evidently unfit for service and refused to obey the school laws within the meaning of Education Code section 87732.”