Opinion
D047813
4-25-2007
GARRY EDGAR, Plaintiff and Respondent, v. CHULA VISTA ELEMENTARY SCHOOL DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED
The Chula Vista Elementary School District (District) terminated Garry Edgar from his job as an elementary school custodian. Edgar petitioned for an administrative writ of mandate, contending the District violated his procedural rights and the termination was not supported by the evidence. (Code Civ. Proc., § 1094.5.) The superior court granted the petition based on its conclusion that the District did not comply with governing procedural rules. The court issued a writ ordering the District to conduct a new hearing and to issue express findings in support of its decision, and to reinstate Edgar to his previous position.
The District appeals. We affirm. Substantial evidence supports the trial courts conclusion that the District did not comply with applicable procedural rules before it terminated Edgar. The record further establishes that the school board erred in failing to issue findings to explain its termination decision. In light of this record, we conclude the trial court did not abuse its discretion in ordering the school board to conduct a new hearing and issue factual findings, and ordering Edgar reinstated until proper proceedings are held.
FACTUAL AND PROCEDURAL BACKGROUND
In its appellate briefs, the District sets forth the evidence of Edgars termination in the light most favorable to its position. This is not the appropriate manner to view the record at this point in the proceedings. The issues on appeal concern the propriety of the trial courts determination that the District violated Edgars procedural rights and whether the courts remedy of a new hearing with express findings was appropriate. In examining the administrative record on these issues, we view the relevant procedural facts in the light most favorable to the courts findings. (Lake v. Reed (1997) 16 Cal.4th 448, 457.) We do not resolve the issue whether Edgars conduct justified the termination because the trial court did not reach this issue.
In August 2002, 55-year-old Edgar worked as a custodian at a District elementary school. Edgar had worked for the District for approximately 12 years with no disciplinary record. On Sunday August 11, Edgar took home a new computer that had been stored in a box at the school for several weeks. Edgar did not receive permission to take the computer home. The next day, Apple Computers notified school officials that it had received calls for technical help from Edgars wife regarding this computer. Edgar returned the computer to the school the next day on Tuesday August 13.
Two days later, on August 15, Edgar met with the school principal and Rick Werlin, the Districts assistant superintendent for human resources. During this lengthy meeting, Werlin notified Edgar that the District was aware he had taken the computer home. Edgar admitted he had done so without permission, but explained he had intended only to borrow the computer and to return it promptly. When Werlin accused Edgar of stealing the computer and stated the police would be contacted and Edgar should resign, Edgar became upset and angry, and raised his voice. Werlin told Edgar to leave the school premises and that he was suspended with pay until further notice.
Several weeks later, on September 11, Werlin held another meeting with Edgar, which Werlin described as a "Skelly" meeting. Werlin said he informed Edgar that the District intended to dismiss him and that he was now suspended "without pay pending resolution of the charges for your dismissal." According to Werlin, Edgar became hostile and verbally abusive. According to Edgar, Werlin told him that he had the choice of resigning or retiring, and if he did not agree to either option, the District would report Edgar to the police.
Two weeks later, Werlin wrote Edgar a letter stating that "Per our earlier conversation, you were advised that you have been placed on administrative leave without pay. . . . [¶] During our last meeting, you conducted yourself unprofessionally in your use of [expletives] . . . as you pointed your finger in my face. This type of anger and outbursts are unacceptable and will not be tolerated in the workplace. [¶] You are hereby advised that unless we are in receipt of your letter of resignation or retirement on or before [October 2, 2002], we will begin proceedings related to charges for termination." Despite the decision to suspend Edgar without pay, the District continued to pay Edgar through December 2002.
Edgar retained an attorney, who notified the District of the representation. On November 20, 2002, Werlin called Edgar and directed him to attend a meeting the next day without his counsel during which Werlin would orally explain the basis for Edgars termination. Werlin stated that Edgars attorney could not come to the meeting. Edgar initially declined to attend the meeting, and, according to Werlin, raised his voice during the conversation. Edgars attorney then wrote a letter to the District objecting to Werlins contact and seeking clarification as to whether Edgar was still an employee of the District and whether he had been terminated.
The next day, on November 22, the District gave Edgar a "Notice of Disciplinary Action," which stated two grounds for Edgars termination: (1) "Dishonesty"; and (2) "Discourteous treatment of the public, fellow employees, or students." With respect to the dishonesty charge, the notice set forth the circumstances concerning Edgars removal of the computer from the school premises. With respect to the discourteous-treatment charge, the notice described Edgars conduct during the September 11 meeting and during the November 20 telephone conversation with Werlin.
The Districts notice stated that Edgar had five days to request a hearing, or the termination would be officially approved by the Board of Education (Board). Edgar timely requested a hearing.
During the next several weeks, the District advertised for a permanent replacement for Edgars custodian position. The advertisement was first posted on November 19, three days before Edgar was given written notice of termination. On January 22, 2003, the Board approved the hiring of Fernando Castro. Castro was the person who had temporarily replaced Edgar during a prior disability leave.
Six days later, on January 28, a hearing was held before the five members of the Board regarding Edgars challenge to his termination. The District and Edgar were each represented by counsel. At the outset of the hearing, the Board president stated: "The purpose of this hearing is to ascertain facts concerning the specific charges made and to afford Mr. Edgar an opportunity to present his side of the case as a result of the proposed decision made by the district administration to discipline him. [¶] The nature of these charges are stated in the Notice of Disciplinary Action dated November 22nd, 2002 . . . ."
After each counsel made an opening statement, the District presented several witnesses, including Werlin, the school principal, the Districts computer support technician, and the union representative who witnessed some of the relevant events. Regarding the dishonesty charge, the District presented the evidence showing that Edgar took the computer from the school without permission. The District argued that Edgar intended to permanently steal the computer, relying on hearsay statements from Apple Computer employees concerning statements made by Edgars wife when she called Apple Computers for technical support. In support of the discourteous-treatment charge, the District relied on the testimony of Werlin (and other witnesses), who described Edgars inappropriate language and finger-pointing during the meetings at which Werlin communicated the Districts intended discipline resulting from the computer incident.
In defense, Edgar testified and called his wife as a witness. Edgar admitted he took the computer home for two days, but denied that he intended to keep the computer. He said he borrowed the computer to allow his wife, who is computer literate, to set up the computer so he could use it at school. He explained that he was required to use a computer to place orders for school supplies and the teachers were complaining that the items were not being ordered in a timely fashion, but there was no computer technician available to set up a computer for his use. Edgars wife admitted calling Apple Computers for technical assistance, but said she was only seeking help to set up the computer for Edgars use at school. Based on this evidence, Edgars counsel argued "[t]here was no intent to steal anything. It was just Mr. Edgar trying to do his job the best he knew how. He has an unblemished record, no prior discipline. He has always been an enthusiastic employee of the school." With respect to the discourteous-treatment charge, Edgar denied that he acted inappropriately in his meetings and conversations with Werlin.
After the presentation of evidence and counsels argument, the Board closed the hearing for its deliberations. After a brief period, the Board reopened the meeting, and the Board president stated: "After considering all of the evidence presented to this governing board, the board voted to terminate [Edgars] employment . . . effective December 31st, 2002." The next day, the District sent Edgar a letter advising him that: "after careful review of all evidence presented, the [Board] took action . . . to terminate your employment . . . effective December 31, 2002."
The January 28 Board hearing was recorded and later transcribed by a certified court reporter. In February 2003, Edgars counsel wrote to the Districts counsel requesting copies of the audio and video tapes of the hearing. In April 2003, the District responded that the tapes were partially defective. The District offered to hold another hearing, but Edgar declined.
In July 2003, Edgar filed a lawsuit challenging the termination, alleging wrongful termination and unlawful discrimination based on age. Approximately 13 months later, the District moved for summary judgment based on its argument that Edgar failed to exhaust judicial remedies by petitioning for administrative mandate.
On the day the summary judgment was scheduled to be heard, Edgar filed this writ of mandate action under Code of Civil Procedure section 1094.5. Edgar alleged the District terminated him without just cause, and without a hearing required by applicable statutes and Board policies. Edgar asserted he was not given notice or a hearing before his initial suspension or before the District made its decision to terminate him. Edgar also challenged the termination on the basis that the Board failed to comply with the statutory requirement that the decision by an administrative body must include supporting written factual findings. Edgar additionally argued that the penalty was disproportionate to the alleged misconduct. Although Edgar initially sought backpay, he later withdrew this claim.
In response, the District argued that it did not violate Edgars due process rights, and there was no prejudice because Edgar was ultimately provided notice of the charges on November 22, 2002, and was provided a full hearing on January 28, 2003. The District also argued the court should dismiss the petition on the grounds of laches, estoppel, and acquiescence.
After reviewing the administrative record and considering counsels arguments, the trial court concluded that the District violated Edgars procedural rights. The court explained it found "persuasive" Edgars procedural arguments that: (1) he was not given proper notice under Board Policy 4218; (2) the District did not comply with due process guidelines when it terminated Edgar before the January 28 hearing; and (3) the District failed to issue written findings to support its termination decision. The court stated that "without any findings it is not in a position to review the appropriateness of [the Boards] decision." The court also expressly rejected the Districts laches, estoppel, and acquiescence defenses.
Based on these determinations, the court issued a writ of mandate "directing [the District] to conduct a new hearing and to issue findings in support of its decision." The court also ordered Edgar "reinstated to his previous position effective the date of this ruling and with all benefits to accrue until such time as [Edgars] employment terminates, either voluntarily or pursuant to action by the District."
The District appeals.
DISCUSSION
I. Standard of Review
Because Edgars termination involved a fundamental vested property right to continued public employment, the trial court was required to independently review the evidence and based on its own evaluation of the evidence, to determine whether the weight of the evidence supports the agencys decision. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52 (Kazensky); see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 823-824.) In so doing, the trial court was entitled to make its own determinations as to the credibility of the witnesses. (Ibid.;Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372.)
A different review standard applies to the appellate court. (Kazensky, supra, 65 Cal.App.4th at p. 52.) "`Where a superior court is required to make . . . an independent judgment upon the record of an administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior courts findings if substantial evidence supports them." (Ibid.; Fukuda, supra, 20 Cal.4th at p. 824.) The appellate court must resolve all factual conflicts in favor of the prevailing party, and give that party the benefit of every reasonable inference in support of the judgment. (Kazensky, supra, at p. 52.) We conduct a de novo review only when examining the trial courts legal determinations. (See Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077; Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.)
A more deferential standard of review applies to the evaluation of an agencys penalty assessment. (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279 (Flippin);Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45-46.) However, this review standard is not applicable at this time because the trial court did not reach the penalty issue.
Relying on Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107, the District argues that we should apply a de novo review in examining the administrative record. Bostean held that where the underlying procedural facts are undisputed, the issue whether an administrative agency complied with its procedural obligations is a legal question and thus reviewed de novo. (Id. at pp. 100, 107-108.) In this case, there are several conflicting procedural facts, including the timing and nature of the notices of termination and the timing of the termination itself. Thus, under well-settled review standards, we examine the facts in the light most favorable to the courts rulings. (See Kazensky, supra, 65 Cal.App.4th at pp. 52-53.) We then independently determine whether the court correctly found the District violated Edgars rights based on those facts.
II. Summary of Applicable Legal Principles
A classified (nonteacher) permanent public school employee, such as Edgar, is "subject to disciplinary action only for cause" (Ed. Code, § 45113, subd. (b)), and is entitled to due process before the discipline may be imposed (California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 344; see Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 201-216; Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, 575). "`Minimal standards of due process require that a public employee receive, prior to imposition of discipline: (1) Notice of the action proposed, (2) the grounds for discipline, (3) the charges and materials upon which the action is based, and (4) the opportunity to respond in opposition to the proposed action. [Citations.] To be meaningful, the right to respond must afford the employee an opportunity to present his side of the controversy before a reasonably impartial and noninvolved reviewer who possesses the authority to recommend a final disposition of the matter." (Bollinger, supra, 71 Cal.App.4th at pp. 575-576, italics added; see also Flippin, supra, 148 Cal.App.4th at pp. 282-283.)
Consistent with these principles, the Legislature enacted Education Code section 45113, subdivision (a), governing classified employees. This code section requires school districts to adopt procedural rules "for disciplinary proceedings which shall contain a provision for informing the employee by written notice of the specific charges against him or her, a statement of the employees right to a hearing on those charges, and the time within which the hearing may be requested which shall not be less than five days after service of the notice to the employee . . . ." (Ed. Code, § 45113, subd. (c).) The school district has the burden to prove a basis for the discipline. (Ibid.)
To implement this statutory mandate, the District adopted Board Policy 4218 governing classified personnel. Board Policy 4218 provides that "except in extreme cases," the District will "give two weeks written notice of intention to terminate employment" and will impose "[p]rogressive discipline" to correct negative behaviors. This Board Policy also sets forth the hearing procedure applicable when the District has suspended, demoted or dismissed an employee. These rules provide that "Any permanent employee who is suspended, demoted, or dismissed from the classified service shall be given immediate written notice of the specific charges against him/her and a statement of his/her right to a hearing on such charges. A card or paper, the signing and filing of which shall constitute a demand for hearing and a denial of all charges, shall be included with the notice which will be sent to the employee by registered mail or delivered personally. [¶] The employee may request a hearing by returning the card or paper . . . five work days after service of the notice . . . . Written notification of the hearing date will be sent to the employee by registered mail or personal delivery at least fourteen calendar days in advance. The hearing shall be conducted by the Board of Education or its designated representatives. . . ."
A suspension is defined as "either temporary removal of an employee from his/her position with loss of pay as a disciplinary measure, or his/her removal preliminary to investigation of charges pending demotion or dismissal." A dismissal is defined as "separation, discharge, or permanent removal of any employee from his/her position for cause . . . ."
III. Districts Failure to Comply with Applicable Procedural Rules
The District challenges the courts finding that it violated Edgars procedural rights. We conclude substantial evidence supports the trial courts finding that the District did not comply with its internal rules regarding timely notices and a hearing for the disciplinary actions.
The District initially disciplined Edgar by imposing a suspension with pay on August 15, but did not give him notice of the specific charges against him or his rights to a hearing. This action violated Board Policy 4218. Several weeks later, on September 11, the District increased the discipline to a suspension without pay, which the District later disregarded by continuing to pay Edgar until December 31. Again, the District failed to provide Edgar with notice of the specific charges against him and notice of his rights to a hearing. This action violated Board Policy 4218. The court found, and substantial evidence supports, that the District thereafter made a decision to terminate Edgar and to replace him with another custodian, but the District again failed to give him notice of this decision or of his right to a hearing. This action violated Board Policy 4218. It was not until Edgar retained an attorney and the attorney met with District officials, that the District finally gave Edgar the mandated written notice of the specific charges against him and of his right to a hearing. However, that hearing was not held until after the District effectively terminated Edgar by hiring his permanent replacement.
These facts support the trial courts conclusion that the District violated Edgars procedural rights under the Boards policy and the applicable statutes.
IV. Boards Failure to Issue Findings to Support its Termination Decision
The District additionally contends the court erred in remanding for express findings. This contention is without merit.
An administrative agency, such as a school board, is required to issue written findings to explain its conclusions after a quasi-judicial hearing. (Eureka Teachers Assn. v. Board of Education (1988) 199 Cal.App.3d 353, 367-368; see Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 (Topanga Assn.).) This requirement allows a court to review the record in an informed manner. Additionally, the requirement "ensure[s] that the decisionmaking agency actually considers" statutory criteria (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 896), "facilitate[s] orderly analysis" of these decisional criteria (Topanga Assn., supra, at p. 516), and serves "a public relations function" of informing the public and the employee of the reasons for the agencys decision (id. at p. 517).
The requirement of express findings is not merely a technicality; it is an important tool to "safeguard employees from arbitrary or careless adjudications." (Lucas v. Board of Education (1975) 13 Cal.3d, 674, 679.) "`When the government knows it may have to justify its decisions with sound reasons, its conduct is likely to be more cautious, careful, and correct." (Ibid.) Requiring an agency to express the reasons for its conclusions "`renders arbitrary action more difficult" and reduces the possibility of "`arbitrariness that results, not from malice, but from innocent error. . . ." (Ibid.) "Meaningful judicial reconsideration would be a hollow process in the absence of an explicit statement of factual findings and issue determinations from the administrative agency." (Ibid.)
The findings requirement was particularly important in this case because there were several possible independent factual theories for the termination (e.g., borrowing the computer without permission, "stealing" the computer without an intent to return it, or acting in an improper manner when accused of stealing the computer and threatened with arrest). Findings cannot be implied where there are two contrary grounds for termination, each of which relate to different factual matters. (Eureka Teachers Assn. v. Board of Education, supra, 199 Cal.App.3d at p. 368; Jean v. Civil Service Commission (1977) 71 Cal.App.3d 101.) Further, although the trial court will be required to conduct its own independent review of the record, the agencys factual conclusions remain a relevant factor in this analysis. (See Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817; American Funeral Concepts v. Board of Funeral Directors & Embalmers (1982) 136 Cal.App.3d 303; Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 129.) Additionally, given the Districts repeated failures to timely provide Edgar with proper notices and a timely hearing on his termination, a remand for express findings will provide assurance that the Board carefully considered and weighed the evidence, and reached conclusions in a thoughtful, reasoned manner.
We reject the Districts argument that the Board was not required to issue findings because the District is a "local" agency. In California, an administrative board has a mandatory duty to state findings for its decisions after a quasi-judicial proceeding. (City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 779.) This rule applies to all agency decisions governed by Code of Civil Procedure section 1094.5, "regardless of whether [the agency is] subject to the Administrative Procedure Act and regardless of [the agencys] state or local character." (Topanga Assn., supra, 11 Cal.3d at p. 514, fn. 12.)
We also reject the Districts argument that the Boards conclusory statements after the hearing were sufficient to constitute the necessary findings. Although the Boards findings "`need not be stated with the formality required in judicial proceedings [citation], they nevertheless must expose the boards mode of analysis to an extent sufficient [to] enable the parties to the agency proceeding to determine whether and on what basis they should seek review," and to apprise the reviewing court of the basis for the boards action. (Topanga Assn., supra, 11 Cal.3d at pp. 516-517, and fn. 16.) The Boards sole explanation—that "after careful review of all evidence presented, the [Board] took action . . . to terminate your employment"—does not meet these standards.
When an administrative agencys findings are not adequate, a court may order a limited remand for the purpose of allowing the agency to issue the findings. (Glendale Memorial Hospital & Health Center v. State Dept. of Mental Health (2001) 91 Cal.App.4th 129, 140; see also Eureka Teachers Assn. v. Board of Education, supra, 199 Cal.App.3d at p. 369; Robinson v. State Personnel Bd. (1979) 97 Cal.App.3d 994, 1004.) However, it is also within a trial courts discretion to order that a new hearing be conducted. (Lucas, supra, 13 Cal.3d at p. 679.) "The requirement that [factual findings] accompany, rather than follow, the boards decision has a manifest purpose: it serves to prompt more deliberate consideration and analysis of the matter at hand." (Ibid.)
In this case, the court did not abuse its discretion in determining that a new hearing was the appropriate remedy. At least one of the Board members who presided over the hearing and voted to terminate Edgar is no longer part of the Board. Additionally, the video and audio tapes are defective to some degree, thus making it difficult for the remaining Board members to refresh their memories concerning the evidence presented at the hearing. Further strict adherence to procedural requirements is important in this case given the nature of the Districts violations of Edgars rights.
Under these circumstances, the court did not err in ordering that the Board conduct a new hearing with findings, and in ordering Edgar to be reinstated "until such time as [his] employment terminates, either voluntarily or pursuant to action by the District."
We note that in its appellate briefs the District does not challenge the appropriateness of the reinstatement order apart from its contention that the court should not have ordered the District to conduct a new hearing and to issue findings.
V.Substantial Evidence Supports Courts Rejection of Districts Laches Defense
The District alternatively contends the court erred in refusing to dismiss Edgars writ petition on the basis of laches.
The District does not contend Edgars action was untimely under any applicable statute of limitations.
Generally, a public employee must promptly seek review of an adverse personnel decision. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 (Johnson).) However, to prevail on a laches defense, the defendant must show unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay. (Ibid.) Under this rule, "`[u]nreasonable delay by the plaintiff is not sufficient to establish laches. There must also be prejudice to the defendant resulting from the delay or acquiescence by the plaintiff." (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049-1050 (Piscioneri); Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361, 1368.) Further, "[p]rejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. [Citation.]" (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624; Piscioneri, supra, 95 Cal.App.4th at p. 1050.)
A trial courts laches ruling will be sustained on appeal if there is substantial evidence to support the ruling. (Johnson, supra, 24 Cal.4th at p. 67; see In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1159.) "`[T]he existence of laches is a question of fact to be determined by the trial court in light of all the applicable circumstances, and in the absence of a palpable abuse of discretion, the trial courts finding of laches will not be disturbed on appeal." (Piscioneri, supra, 95 Cal.App.4th at p. 1037.)
In this case, the trial court rejected the laches defense because it found the District did not meet its burden to show it was prejudiced by Edgars delay in bringing the writ petition. Substantial evidence supports this decision. In support of its prejudice argument, District asserted that "reinstatement of [Edgar] may force [the District] to demote or terminate another employee in order to create a position for [Edgar]." But the District did not support this argument with any evidence. The record establishes the District has several schools in its jurisdiction and there was no showing that placing Edgar into a custodian position in one of these schools would require a demotion or termination of another employee. Further, because the District hired Edgars replacement before it provided Edgar with the required hearing, the claimed prejudice resulted primarily from the Districts own affirmative conduct, rather than Edgars delay in bringing the action.
In this regard, the Districts reliance on Johnson, supra, 24 Cal.4th 61 is misplaced. The Johnson court upheld a trial courts finding that the laches doctrine barred the writ of mandate action filed three years after the city terminated the plaintiffs employment. (Id. at pp. 67-69.) The court relied on evidence produced by the city showing that if the plaintiff successfully challenged his termination, the city would be responsible for double payments to the plaintiff and to the employees who replaced him, and the city would be required to "alter significantly its new management structure" created after the employees termination. (Id. at p. 69.) In this case, Edgar expressly withdrew his claim for backpay; thus there is no potential for double payments. Likewise, there is no evidence that Edgars reinstatement as a school custodian after a two-year period would similarly interfere with the Districts personnel structure.
We also reject the Districts argument that it is prejudiced by the delay because it is now "helpless to discipline Edgar . . . ." The argument is waived because it was raised for the first time in the Districts reply brief. (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1755, fn. 1.) In any event, the argument is without merit. The District relies on Education Code section 45113, subdivision (d) and its own internal rule, which provide that an employee may not be disciplined "for any cause which arose more than two years preceding the date of the filing of the notice of cause." This rule prohibits discipline for matters occurring two years before the initial disciplinary action, but does not restrict the agencys authority to appropriately discipline an employee after a court has remanded the matter because of a prior procedural violation. (See Lucas, supra, 13 Cal.3d at pp. 681-683.)
Finally, we note that although Edgar waited almost two years to bring the writ, he promptly put the District on notice that he intended to challenge his termination in court. Within several months, he filed a civil lawsuit seeking damages. As an affirmative defense to this action, the District asserted Edgar had not exhausted his administrative remedies, but then waited 13 months before bringing a summary judgment motion premised on the exhaustion doctrine. While the motion was pending, Edgar filed this writ. On this record, the delay was not unreasonable and does not establish acquiescence in the Boards decision.
We deny Edgars earlier motion to dismiss the appeal on the grounds that it is frivolous.
DISPOSITION
The order is affirmed. The District is ordered to pay Edgars costs on appeal.
We Concur:
NARES, Acting P. J.
IRION, J.