Opinion
E077089
12-07-2022
GEORGE DAGNINO, Plaintiff and Appellant, v. THE COMMISSION ON PROFESSIONAL COMPETENCE, Defendant and Respondent; PALO VERDE UNIFIED SCHOOL DISTRICT, Real Party in Interest and Respondent.
Donald R. Holben &Associates, Donald R. Holben and William N. Pabarcus, for Plaintiff and Appellant. Winet Patrtick Gayer Creighton &Hanes and Aaron C. Hanes, for Respondents.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLC2000109. Russell L. Moore, Judge.
Donald R. Holben &Associates, Donald R. Holben and William N. Pabarcus, for Plaintiff and Appellant.
Winet Patrtick Gayer Creighton &Hanes and Aaron C. Hanes, for Respondents.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Plaintiff and appellant George Dagnino was dismissed from his position as a special education teacher at the Palo Verde Unified School District (the District) for yelling at his school's principal and encouraging a student to hide the jacket of a special education student as a prank. The Commission on Professional Performance (the CPC) upheld his dismissal and the trial court denied his petition for a writ of mandate. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Dagnino disputes what happened between him and the principal and the District's stated reasons for dismissing him. But because we review the CPC's decision to dismiss him for substantial evidence, we review the record in the light most favorable to the CPC. (See Crawford v. Commission on Professional Competence (2020) 53 Cal.App.5th 327, 336 (Crawford).) We must affirm the judgment if it is supported by substantial evidence. (Ibid.)
The District hired Dagnino as an educator in 2001. For about seven years, he was a resource specialist at a high school in the District working one-on-one with students. For about 16 years, he worked in various physical education and sports positions at the high school.
The District transferred Dagnino to a special education classroom at Appleby Elementary School for the 2018-2019 school year. Dagnino was assigned to the Bridges Special Education Program at Appleby, a special education class for emotionally disturbed students. Despite not having taught special education, Dagnino was assigned to the position because he holds a special education teaching credential.
Dagnino began to have performance problems at the beginning of the 2018 school year. In particular, Dagnino was not properly scheduling or preparing Individualized Education Plans (lEPs) for his students. Appleby principal Karina De la Pena met with Dagnino in mid-September 2018 to discuss what was expected of him as to IEPs. After Dagnino missed an IEP meeting about a few days later, De la Pena issued him a formal written reprimand. De la Pena issued Dagnino another formal written reprimand in November 2018 because of his consistent attendance issues, including showing up late, taking overly long lunch breaks, and leaving campus.
IEPs are mandatory for every special education student under federal and California law. (See B.H. v. Manhattan Beach Unified School Dist. (2019) 35 Cal.App.5th 563, 570.)
On January 16, 2019, Dagnino did not show up on time to an 8:00 a.m. IEP meeting with one of his students. After waiting for him to arrive for about 20 minutes, De la Pena called for him several times on the intercom system. De la Pena addressed Dagnino in the hallway when he eventually arrived and told him he was late.
According to De la Pena, Dagnino became "extremely aggressive" and began yelling at her in front of students and staff while slamming his hat on his hands. Dean of Students Mary Roberson went into the hallway and saw Dagnino with his chest out and yelling at De la Pena while clenching his fists. Roberson thought Dagnino was "intimidating" and "frightened" De la Pena. Students ranging from first to third grade witnessing the incident were "wide-eyed" with their mouths agape as Dagnino kept yelling. Roberson thought the hallway was an unsafe space for the students.
Dagnino was issued a Notice of Unprofessional Conduct under section 44938 for the incident. The Notice detailed Dagnino's outburst toward De la Pena, outlined the relevant District policies, and referenced the three disciplinary letters issued to Dagnino in the fall. The Notice stated that Dagnino's performance had been "deteriorating for several months," directed him to correct his performance, and offered a plan to assist him.
Less than a month later, on February 7, 2019, Dagnino told several students to hide the jacket of one of his students, L.E., who was a special education student in Dagnino's class because of his emotional disturbance issues. L.E. relies on "'preferred adults to mediate his interactions with others'" and has angry outbursts. L.E. was known to be orally and physically aggressive with his peers inside and outside of school. When L.E. saw another student trying to hide his jacket, he became very upset, chased the student, and threw a basketball at her. Both she and L.E. were upset after the incident.
Dagnino was asked to explain in writing what happened. Dagnino responded with a one-sentence statement that the students were "horseplaying" and "threw the basketball at each other."
The District was unsatisfied with the statement and asked Dagnino to submit another one. Dagnino submitted a one-page statement that read in part, "Students horseplaying: The students were horseplaying mutually and threw the basketball at each other. The students were joking around back and forth. I joked to [L.E.], 'what if we hide your jacket.' The students have been talking for weeks. The bell rang (whistle) and I told students let's go to class." Dagnino then stated that Roberson came to his classroom to ask about "the basketball incident." Dagnino did not know what Roberson was talking about, so he asked his students what happened and "they said same as I described before that they threw the ball at each other."
The District did not believe Dagnino's version of events and thought he was being dishonest about what happened. About a week later, on February 13, 2019, the District put Dagnino on paid administrative leave.
The District did not issue Dagnino a Notice of Unprofessional Code under section 44932 for the jacket incident. Instead, the District eventually recommended dismissing Dagnino for his pattern of unprofessional conduct, the incidents with De la Pena and L.E.'s jacket, and his written statements about the jacket incident. The District issued Dagnino a Notice of Dismissal stating that he was being dismissed for unprofessional conduct (Educ. Code, § 44932, subd. (a)(2)), dishonesty (§ 44932, subd. (a)(4), and evident unfitness for service (§ 44932, subd. (a)(6)).
Unless otherwise indicated, all further statutory references are to the Education Code.
The CPC held a three-day hearing on the matter. The CPC then issued a written decision finding that Dagnino's altercation with De la Pena and his involvement in the incident with L.E.'s jacket "constituted unprofessional conduct and evident unfitness for service," and that his statement about the incident was "dishonest." The CPC thus agreed that his dismissal was appropriate.
Dagnino petitioned for a writ of mandate asking the trial court to overturn the CPC's decision (§ 44945; Code Civ. Proc., § 1094.5). The trial court denied the petition, and Dagnino timely appealed.
III.
DISCUSSION
Dagnino argues the CPC's decision must be reversed for three reasons: (1) the CPC erroneously excluded evidence that the District dismissed him for discriminatory and retaliatory reasons, (2) the District failed to provide him with an appropriate Notice of Unprofessional Conduct under section 44938 for the jacket incident, and (3) substantial evidence does not support the CPC's conclusion that his dismissal was appropriate.
A. Excluded Evidence
Before the CPC hearing, the District moved in limine to exclude some of Dagnino's proposed evidence that he sought to introduce to show that the District unlawfully dismissed him for retaliatory reasons, not because of the District's proffered reasons. Dagnino claimed that the District dismissed him because he is one of several plaintiffs in a lawsuit against the District and he openly supported the principal of the high school where he spent the bulk of his career. The CPC granted the motion and precluded Dagnino from introducing evidence about the District's purported retaliation against him.
Dagnino argues the CPC erred by doing so, but he provides no argument on how the ruling prejudiced him. He therefore fails to show, as he must, that the CPC's ruling was a prejudicial abuse of discretion. (See Sieg v. Fogt (2020) 55 Cal.App.5th 77, 95 [petitioner appealing denied petition for writ of administrative mandate bears burden of showing exclusion of evidence was prejudicial]; Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 [petitioner challenging decision in administrative mandamus proceeding must show error was prejudicial, even if error violated petitioner's due process rights].)
B. Notice
Dagnino argues the CPC had no jurisdiction to consider evidence about the jacket incident because the District did not issue him a Notice of Unprofessional Conduct under section 44938. We disagree.
Section 44938 provides that a school district may not act on a charge of unprofessional conduct against an employee without giving the employee at least 45 days' notice of the alleged unprofessional conduct and "an opportunity to correct his or her faults and overcome the grounds for the charge." (§ 44938, subd. (a).) But this notice provision does not apply to other causes for dismissal under section 44932. (§ 44938, subd. (a); Bassett Unified School Dist. v. Commission on Professional Competence (1988) 201 Cal.App.3d 1444, 1455 (Bassett) ["By its terms, section 44938's notice requirement does not apply to any other cause for dismissal specified in section 44932."]; accord, Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1446-1447.)
The District dismissed Dagnino not only for unprofessional conduct (§ 44932, subd. (a)(2)), but also for dishonesty (§ 44932, subd. (a)(4)) and evident unfitness for service (§ 44932, subd. (a)(6)). Along with finding that his outburst at De la Pena qualified as unprofessional conduct, the District also found that Dagnino's written statements about the jacket incident were dishonest and that his involvement with the incident showed that he was unfit for service. The District was not required to issue him a notice of unprofessional conduct under section 44938 for the charges of dishonesty and evident unfitness for service. (See Bassett, supra, 201 Cal.App.3d at p. 1455; Blake v. Commission on Professional of Competence (1989) 212 Cal.App.3d 513, 518-519 [one act may provide several grounds for dismissal under section 44932].) As a result, the CPC had jurisdiction to consider evidence about the jacket incident and consider whether it warranted Dagnino's dismissal for dishonesty and unfitness to teach.
In any event, Dagnino acknowledges that the CPC could consider evidence of his outburst at De la Pena and determine whether that showed he was unfit to teach. For the reasons explained below, we conclude the CPC properly found that Dagnino's outburst constituted unprofessional conduct and his statements after the jacket incident were dishonest.
C. Dismissal
Dagnino contends substantial evidence does not support the CPC's decision that his dismissal was appropriate. We disagree.
A permanent employee of a school district may be terminated only for the causes enumerated in section 44932. (§ 44932, subd. (a)(1)-(11).) But when a charge of unprofessional conduct is raised in a permanent teacher dismissal case, "the applicable standard is whether the person is fit to teach." (Bassett, supra, 201 Cal.App.3d at p. 1453.) A permanent teacher therefore may be terminated only if (1) his or her conduct constitutes at least one of the specified causes for termination under section 44932, subdivision (a) and (2) the teacher is not fit to teach. (See Crawford, supra, 53 Cal.App.5th at p. 338.)
Dagnino acknowledges that the District had "statutory grounds" to dismiss him. He thus concedes (at least implicitly) that his conduct amounted to a cause for his dismissal under section 44932.
Regardless, substantial evidence supports the CPC's findings that Dagnino engaged in unprofessional conduct. As explained below, several witnesses testified before the CPC that Dagnino aggressively yelled at De la Pena in front of their colleagues and young elementary school students. The incident left De la Pena and Roberson scared for their safety and the wellbeing of students. We agree with the CPC that this behavior was "extremely unprofessional," particularly for an elementary school teacher.
Substantial evidence also supports the CPC's finding that Dagnino was dishonest. When asked to explain in writing what happened with L.E.'s jacket, Dagnino's one-sentence statement was that the students were horseplaying. When pressed for more details, Dagnino's one-page statement suggested that the incident was a harmless prank and that he was unaware that it led to L.E. chasing and throwing a basketball at another student. However, several students testified and provided written statements that Dagnino instigated the entire incident by telling a group of students to hide L.E.'s jacket. The CPC credited their testimony and found that Dagnino's version of events was not credible, and thus his written statements were dishonest. Because these factual findings are supported by substantial evidence and turn on credibility, we must defer to them. (See Fisher v. State Personnel Board (2018) 25 Cal.App.5th 1, 23; In re Marriage of Fregoso &Hernandez (2016) 5 Cal.App.5th 698, 703 ["The testimony of one witness, even that of a party, may constitute substantial evidence."].) Moreover, Dagnino concedes in his opening brief that he told students to hide L.E.'s jacket because he "was trying to convey an object lesson" to L.E. "to not hide the property of other students," which he acknowledges reflected "poor judgment."
Because the CPC properly found that there was cause for Dagnino's dismissal (unprofessional conduct and dishonesty), his dismissal was appropriate so long as there was substantial evidence that he is "unfit to teach." (See Crawford, supra, 53 Cal.App.5th at p. 338.)
The CPC also found that Dagnino was "evidently unfit to teach." (§ 44923, subd. (a)(6).) We need not consider whether this alternative ground for Dagnino's dismissal was established.
We note that Dagnino does not argue he should have received discipline less severe than dismissal. Instead, he argues only that he should not have been dismissed.
To make that determination, we apply the applicable "Morrison factors." (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 224-225 (Morrison).) Those factors are: "'[1] the likelihood that the conduct may have adversely affected students or fellow teachers, [and] the degree of such adversity anticipated, [2] the proximity or remoteness in time of the conduct, [3] the type of teaching certificate held by the party involved, [4] the extenuating or aggravating circumstances, if any, surrounding the conduct, [5] the praiseworthiness or blameworthiness of the motives resulting in the conduct, [6] the likelihood of the recurrence of the questioned conduct, and [7] 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.'" (Broney v. California Commission on Teacher Credentialing (2010) 184 Cal.App.4th 462, 474.) These factors are relevant as long as they assist the CPC to determine whether the teacher is fit to teach and thus whether the teacher is likely to meet the school's standards. (Crawford, supra, 53 Cal.App.5th at p. 338.)
1. Adverse Effect on Students or Teachers
Although Dagnino claimed he did not yell at De la Pena, she and Roberson testified otherwise. De la Pena and Roberson testified that there were first, second, and third graders who witnessed Dagnino yelling at De la Pena. According to Roberson, several teachers ushered their students into their classrooms. Several teachers asked De la Pena if she was okay after the incident, and both she and Roberson testified that they were scared afterward. Roberson was so scared that she did not leave De la Pena in the hallway by herself with Dagnino. De la Pena also testified that Dagnino continued yelling at her in front of a parent, who expressed shock and concern that Dagnino was her child's teacher.
The record thus contains substantial evidence to support the trial court's finding that the first Morrison factor was satisfied. (See San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1463 [school administrator's loss of confidence in teacher was substantial evidence that teacher's conduct harmed teacher's "on-campus relationships"]; Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 826 [teacher may be discharged when her conduct "has gained sufficient notoriety so as to impair [her] on-campus relationships"].)
2. Proximity or Remoteness in Time of the Conduct
"The second Morrison factor considers when the teacher's conduct occurred in relation to the school's disciplinary decision." (Crawford, supra, 53 Cal.App.5th at p. 341.) Dagnino was put on administrative leave about a month after his outburst at De la Pena and about a week after the jacket incident. "This Morrison factor is met." (Ibid.)
3. Type of Teaching Certificate
"The third Morrison factor looks to the discharged teacher's teaching certificate(s) and whether the teacher's conduct is consistent with his or her credentials and position at the school." (Crawford, supra, 53 Cal.App.5th at p. 341.) Dagnino holds a special education certificate and does not dispute that he was appropriately credentialed to teach in the Bridge Program. Nor does he dispute the trial court's finding that this Morrison factor "has been met."
4. Extenuating or Aggravating Circumstances Surrounding the Conduct
"The fourth Morrison factor looks to whether extenuating or aggravating circumstances 'bore upon [Dagnino's] fitness to teach.'" (Crawford, supra, 53 Cal.App.5th at p. 341.) Dagnino's entire argument on this factor is as follows: "In aggravation, there was an incident between [him] and his superior [(De la Pena)], which should have been handled by both on a more professional basis." We agree with the trial court that there were no extenuating circumstances that remotely justified Dagnino's behavior. Rather, the fact that Dagnino aggressively yelled at De la Pena to the point that she and others were concerned for her safety and the wellbeing of students is an aggravating circumstance. (See Broney v. California Commission on Teacher Credentialing, supra, 184 Cal.App.4th at p. 477 [teacher's criminal conduct was an aggravating circumstance under Morrison because it was "'incompatible with a teacher's status and duties'"].) Dagnino's telling other students to hide the jacket of L.E., a special education student, then brushing it off as a "prank" is another aggravating circumstance. (See ibid.) The fourth Morrison factor is met.
5. Praiseworthiness or Blameworthiness of Dagnino's Motives
"The fifth Morrison factor considers whether the teacher's motives deserve praise or blame." (Crawford, supra, 53 Cal.App.5th at p. 342.) Dagnino argues that his motive regarding the jacket incident was praiseworthy because he intended to help L.E. positively modify his behaviors. He argues that his motive underlying the incident with De la Pena was praiseworthy because he intended to stop the calls over the intercom, which were upsetting his students, and he intended to attend the IEP, which he had learned was scheduled just the day before. The CPC does not challenge Dagnino's contentions and does not argue that his motives were blameworthy. We therefore assume without deciding that the fifth Morrison factor weighs in Dagnino's favor.
6. The Likelihood of the Recurrence of the Questioned Conduct
Dagnino argues it was unlikely that his challenged conduct would recur because there was no evidence that he yelled at anyone before or after the incident with De la Pena. But the CPC found that the likelihood of recurrence was "very high" because Dagnino's poor behavior escalated throughout the school year and did not improve even though he was written up three times, counseled, and given a plan to improve his performance, and he admitted no wrongdoing at the hearing. Dagnino offers no response to any of these findings and thus fails to show that the CPC's decision is not supported by substantial evidence.
7. Chilling Effect Upon Constitutional Rights
The seventh and final Morrison factor "evaluates whether the disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers." (Crawford, supra, 53 Cal.App.5th at p. 343.) Neither party suggests this factor is relevant here, so we need not consider it. (See id. at p. 338 [only relevant Morrison factors must be considered].)
In sum, substantial evidence shows that six of the seven Morrison factors support the District and CPC's conclusion that Dagnino's dismissal was appropriate. We therefore affirm the trial court's order denying Dagnino's petition for a writ of mandate.
IV.
DISPOSITION
The trial court's order denying Dagnino's petition for a writ of mandate is affirmed. The District and the CPC may recover their costs on appeal.
We concur: MILLER Acting P. J. MENETREZ J.