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Edgar v. Chula Vista Elementary Sch. Dist.

California Court of Appeals, Fourth District, First Division
Sep 26, 2008
No. D049242 (Cal. Ct. App. Sep. 26, 2008)

Opinion


GARRY EDGAR, Plaintiff and Appellant, v. CHULA VISTA ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent. D049242 California Court of Appeal, Fourth District, First Division September 26, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC813854, Jeffrey B. Barton, Judge. Affirmed.

HALLER, J.

Garry Edgar sued the Chula Vista Elementary School District (District) after he was terminated from his school custodian job. At trial, Edgar's sole cause of action was his claim the District terminated him because of his age and disability in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940, et seq.) The court, sitting without a jury, found Edgar failed to prove this claim.

On appeal, Edgar contends the trial court erred in failing to give proper effect to a prior order issued in a separate writ proceeding determining the District had violated Edgar's procedural rights in the termination process. We conclude the trial court properly found the District's procedural violations did not conclusively establish that the District engaged in unlawful discrimination. We also reject Edgar's additional appellate contentions. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2002, 54-year-old Edgar worked as a custodian at a District elementary school. On August 11, Edgar took home a new computer that had been stored in a box at the school. Edgar did not obtain permission to remove the computer from the school. The next day, Apple Computers notified school officials that it had received calls for technical help from Edgar's wife regarding this computer, and that Edgar's wife had said she purchased the computer on eBay. After Edgar became aware the school officials were looking for the missing computer, Edgar returned the computer to the school without telling anyone. The serial number and the District inventory plate had been removed from the computer.

Thereafter, in a series of meetings, school personnel and District officials accused Edgar of stealing the computer. Edgar initially denied having any knowledge of the missing computer, and then later admitted he had taken the computer home. Edgar claimed he intended only to borrow the computer, but gave several inconsistent explanations for why he did so. During these meetings, Edgar displayed uncontrolled anger and raised his voice, and was physically and verbally threatening to Richard Werlin, the District's assistant superintendent for human resources.

Although District officials apparently made a decision they wanted to terminate Edgar, they did not initially provide written notice of this decision, as is required by the applicable rules. Instead, District officials repeatedly told Edgar that he should consider retiring or resigning from his position.

When Edgar made clear he would not leave his employment voluntarily, the District gave Edgar written notice of its intent to terminate him. This November 22, 2002 notice stated two grounds for Edgar's 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 Edgar's removal of the computer from the school premises. With respect to the discourteous-treatment charge, the notice described Edgar's inappropriate conduct during meetings and telephone conversations during which school officials accused Edgar of stealing the computer.

On January 28, 2003, an evidentiary hearing was held before the Board of Education (Board) regarding Edgar's challenge to his termination. The District and Edgar each were represented by counsel. After the presentation of evidence and counsels' arguments, the Board closed the hearing, and after a brief period, reported it had voted to terminate Edgar effective December 31, 2002. The next day, the District sent Edgar a letter confirming the termination without stating the reasons for the decision.

Six months later, in July 2003, Edgar filed a lawsuit challenging the termination (the Damages action), which is the subject of this appeal. As amended, the complaint alleged: (1) wrongful termination in violation of the procedural and for-cause requirements set forth in Education Code section 45113 and related District rules ("Wrongful Termination claim"); and (2) discrimination on the basis of Edgar's age and disabilities in violation of the FEHA ("FEHA claim"). With respect to the FEHA claim, Edgar alleged that in 1999 he suffered a work-related injury to his shoulders, wrist and thumb, and that when he returned to work two years later in 2001, he had restrictions including the amount of weight he could lift. Edgar alleged that this disability and his age (54) were substantial factors contributing to the District's decision to terminate him.

The complaint also alleged a false imprisonment claim, which was later dismissed during summary judgment proceedings.

In August 2004, the District moved for summary judgment and/or summary adjudication in the Damages action. As one of the grounds for the motion, the District asserted that Edgar failed to exhaust his judicial remedies by petitioning for a writ of mandate challenging the Board's termination decision. In his opposition papers, Edgar conceded that this argument had merit with respect to his Wrongful Termination claim. Edgar requested that the court stay the summary judgment motion to provide him additional time to obtain writ relief, and alternatively asked the court to dismiss the claim without prejudice.

After considering the parties' submissions, the court issued a tentative decision, denying the summary judgment on the second (FEHA) cause of action, but granting summary adjudication on the Wrongful Termination cause of action. The court stated it was granting summary adjudication based on Edgar's admission that he could not prevail on the Wrongful Termination claim because he had not successfully challenged the Board's termination decision in a petition for writ of mandate.

At the November 5 hearing on the District's summary judgment motion, Edgar's counsel notified the court that the day before Edgar had filed a writ petition under Code of Civil Procedure section 1094.5 (section 1094.5), challenging the Board's termination decision, and that the case had been assigned to Superior Court Judge Joan Lewis (the Writ action). Edgar's counsel reiterated his request that the court delay ruling on the summary judgment motion until a court had ruled on his writ petition. The court refused this request, and confirmed its tentative ruling granting summary adjudication on the Wrongful Termination cause of action, and denying the motion on the FEHA cause of action. Edgar has never challenged this ruling.

Approximately 14 months later, on January 6, 2006, Judge Lewis issued an order in the Writ action finding the District had violated Edgar's statutory and due process rights by not providing proper and timely written notice of the termination decision, and finding the Board erred in failing to issue findings explaining the basis of its termination decision. Judge Lewis issued a writ of mandate ordering Edgar to be reinstated until a proper hearing was held. The District immediately filed a notice of appeal from this order.

The next month, in February 2006, a nonjury trial was held in the Damages action. Superior Court Judge Jeffrey Barton presided over the trial. At the outset of the trial, Edgar's counsel acknowledged the only cause of action before the court was his FEHA claim alleging the District discriminated against him because of his age and disabilities. However, at various times during trial and posttrial proceedings, Edgar's counsel discussed the legal determinations made in the Writ action pertaining to Edgar's procedural rights, and argued that these determinations were dispositive of his discrimination claims, i.e., they established as a matter of law that the District discriminated against him and/or that the District was estopped to proffer a proper ground for the termination. The District, on the other hand, sought to preclude the admission of evidence of the findings in the Writ action.

Quite sensibly, the court accepted neither position. The court overruled the District's objections and permitted Edgar to present evidence of the court's determinations in the Writ action and to present evidence of the specific facts showing the District did not comply with notice rules and due process requirements. However, the court stated that it would not consider this evidence as establishing discrimination as a matter of law, and instead it would consider the facts as circumstantial evidence that the District's asserted reasons for the termination were pretextual. The court explained that "the issue before this Court [relates solely to] discrimination . . . . I am not here to review the administrative proceedings and issue mandamus. That's already been done by another judge. However, the manner in which the district personnel acted in regard to their guidelines and the like may be circumstantial evidence of discriminatory intent . . . ."

In addition to relying on the District's procedural violations, Edgar also presented other evidence in attempting to show the District's reasons for the termination were pretextual. This evidence included that Edgar had a good employment record, and that various actions by the school principal suggested she did not want Edgar to continue working at the school because of his inability to perform the work to a full capacity, and that she preferred to hire the younger night custodian. Edgar also presented evidence that school employees had previously "borrowed" school equipment for personal use, and based on this evidence, argued that his conduct of removing the computer from school grounds could not have constituted the true reason for the termination. Edgar and his wife each testified that Edgar intended to only temporarily remove the computer from the school premises so that Edgar's wife could set up the computer for Edgar's use at school.

In opposition to this evidence, the District's counsel argued that Edgar's testimony that he merely intended to "borrow" the computer was not credible, pointing to numerous inconsistencies in the conduct and testimony of Edgar and his wife. The District addiitonally called witnesses who testified that Edgar used foul language and acted in a highly aggressive, abusive, and inappropriate manner during the meetings pertaining to the computer incident. The District also presented evidence showing that its failure to provide Edgar with written notice earlier in the process did not reflect discriminatory animus, and instead the intention was to provide Edgar with the opportunity to retire or resign to avoid an involuntary termination decision. Werlin, who was the District official responsible for recommending that Edgar be terminated, denied that Edgar's age or disability was a factor in the termination decision.

After considering all of the evidence, the court found in favor of the District. In its initial written ruling, the court stated that Edgar proved he is a member of an FEHA protected class because of his age and because he suffers from shoulder disabilities resulting from prior job injuries. But the court found credible the evidence showing Edgar was discharged for nondiscriminatory reasons, including Edgar's dishonesty and his "loud" and "threatening" actions when confronted by school officials. The court rejected Edgar's arguments these reasons were a pretext for unlawful discrimination.

Edgar then filed lengthy briefs challenging the court's conclusions, relying extensively on Judge Lewis's findings in the writ proceeding. Edgar argued, for example, that: (1) the District was precluded from raising any legitimate reason for termination because it failed to follow applicable procedural rules; (2) the District waived the alleged reasons for termination not specifically stated in the November 2002 notice of charges; and (3) the District should not be permitted to assert reasons for termination that were not stated by the District's Board.

The court then issued a final written decision, rejecting these arguments and reaffirming its initial decision that Edgar did not prove his FEHA claim. The court reiterated that the central issue in the case was whether Edgar proved he was terminated for reasons prohibited by the FEHA (his age and/or his disabilities). The court then explained the basis for its factual conclusion that Edgar had not proved discrimination was a motivating factor in the termination. With respect to the District's violations of applicable procedural rules, the court noted that it had permitted Edgar to introduce evidence of these procedural violations, but that "[i]n the totality of the circumstances, the Court does not find that . . . these actions were based on discriminatory intent." The court also stated that it "was aware of [Edgar's] separate Writ proceeding," but the order in the Writ action concerned procedural violations and did not require the court to find in Edgar's favor on his FEHA case.

In June 2006, the court entered judgment in the District's favor in the Damages action. In August 2006, Edgar filed a notice of appeal from this judgment.

While this appeal in the Damages action was pending, in April 2007, this court filed its decision in the Writ action, affirming Judge Lewis's order granting Edgar's writ petition, including the reinstatement order. We found substantial evidence supported Judge Lewis's conclusions that the District did not provide Edgar with proper notices regarding the disciplinary actions, and that the District's governing Board violated procedural rules by failing to explain the factual basis for the termination decision.

DISCUSSION

I. Procedural Violations Do Not Establish Unlawful Discrimination as a Matter of Law

In his appellate brief, Edgar correctly states "[t]he present case was tried to the court on one cause of action—wrongful termination in violation of the Fair Employment and Housing Act."

The FEHA makes it unlawful for an employer to discriminate against an employee based on his age or disability. (Gov. Code, § 12940, subds. (a), (j).) To prevail on an FEHA claim at trial, an employee has the burden to show that the alleged discrimination (here Edgar's age and/or disability) was a " 'motivating factor' " in the adverse employment decision. (See West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978.)

The record contains substantial evidence supporting the court's factual findings that Edgar's age and/or disability were not factors in the District's termination decision. Viewing the facts in the light most favorable to the District, the evidence showed Edgar violated school rules by taking a computer from the school premises, initially lied about this conduct, and then acted in a highly inappropriate manner during meetings pertaining to his conduct. The court found that based on this conduct the District made a decision to terminate Edgar, whose job required him to work near young children and to be responsible for maintaining and safekeeping public property. The District official who made the termination recommendation (Werlin) denied that Edgar's age and/or disability had anything to do with the decision to terminate Edgar.

Edgar does not specifically challenge the sufficiency of the evidence to support the court's finding that the District's termination decision did not result from unlawful discrimination. Edgar's primary appellate argument instead pertains to the court's refusal to find in his favor on the FEHA claim based solely on the determinations made in the section 1094.5 Writ action. Edgar contends the District could not proffer any valid reasons for the termination because Judge Lewis had ruled in Edgar's favor in the Writ action. This contention is without merit. As explained below, the argument is based on a misunderstanding of the relationship between a petition for a writ of mandate under section 1094.5 and an FEHA discrimination claim.

A petition for writ of mandate under section 1094.5 is a proper procedural vehicle for overturning a public entity's quasi-judicial decision. But a party who wishes to obtain damages for an FEHA violation must bring a separate cause of action to obtain any such affirmative relief, and must prove the elements of the claim. (See HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 519.)

The courts have recognized that a party has the election to bring the mandate action and a damages claim in a single proceeding, or (as here) to bring the claims in two separate proceedings. (See Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 147-148; Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 245; see also Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2008) § 1.12, p. 13-14.)

Although a successful writ of mandate action is not a jurisdictional prerequisite to an action seeking damages caused by the public entity, "[u]nless the administrative decision is [successfully] challenged, it binds the parties on the issues litigated and if those issues are fatal to a civil suit, the plaintiff cannot state a viable cause of action." (Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d at p. 243.) This rule, known as the "judicial exhaustion doctrine," is a form of collateral estoppel. (See California Public Employees' Retirement System v. Superior Court (2008) 160 Cal.App.4th 174, 180-182 (PERS); Knickerbocker, supra, 199 Cal.App.3d at pp. 241-244; see also Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 81 (conc. opn. of Werdegar, J.).) " 'Exhaustion of judicial relief simply means that if [an employee] wishes to attack the administrative determination he must launch that assault in an administrative mandamus proceeding and not in a lawsuit for damages.' " (PERS, supra, 160 Cal.App.4th at p. 182.) These judicial exhaustion rules apply to FEHA claims. (See Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 76; see also Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1090-1091.)

Under these principles, to prevail on his FEHA claim in the Damages action, Edgar was required to prove the elements of his FEHA claim, including that discriminatory intent motivated the adverse employment action. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003-1005; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 204-205.) In so doing, it was not enough for Edgar to show there were procedural violations in the termination process. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 (Guz).) An employer's failure to follow an applicable termination procedure does not alone establish discriminatory intent or animus under the FEHA. (Ibid.) As Justice Chin has observed, "A mere failure to follow formal internal policies does not support a discrimination claim. . . . 'The plaintiff must have developed some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action.' [Citation.] '. . . "The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent." [Citation.] . . . .' [Citations.]" (Id. at pp. 377-378 (conc. opn. of Chin, J.).)

In this case, the court found the District's violations of Edgar's procedural rights did not reflect the District's intent to discriminate against Edgar based on the protected categories—his age and/or his disability. Edgar does not challenge the sufficiency of the evidence to support this conclusion. Edgar instead relies on Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 to argue that the District's procedural violations were dispositive of his discrimination claim. This reliance is misplaced.

Under Skelly and related authorities, a classified 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, supra, 15 Cal.3d at p. 201-216; Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, 575.) The court in the Writ action found Edgar's Skelly rights were violated, and therefore ordered Edgar reinstated. Thus, under this order, Edgar could not be involuntarily terminated without a new hearing following proper procedures. However, this finding did not compel a finding in Edgar's favor in the Damages action—which concerned whether the December 2002 termination was motivated by discrimination. In the Damages action, the court had granted summary adjudication of Edgar's cause of action that sought relief for the procedural and Skelly violations. Edgar has never challenged this ruling. Thus, the sole claim at trial concerned alleged unlawful employment discrimination, and the factual issue for the court's determination was whether the District was motivated by discrimination in reaching its decision to terminate Edgar. The court resolved that question in favor of the District. Substantial evidence supports that finding.

Moreover, the court did not err to the extent it permitted the District to argue that it fully complied with procedural requirements. Because the District appealed the order in the Writ action, and the appeal was pending at the time of trial, the order did not bar the relitigation of those procedural issues. Under California law, a "civil judgment will not be given collateral estoppel effect until it has become final on appeal . . . ." (Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, 797; see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 532-533.) In any event, in reviewing the record, it appears that Judge Barton essentially accepted the findings made in the Writ action that the District had not followed proper procedures, but found that these violations were insufficient to show that the District's motive for the termination was discrimination.

II. The Court Did Not Err in Its Identification of the Reasons for the Termination

Edgar next contends the court "exceeded its jurisdiction" by identifying reasons for the termination that had not been articulated in the District's November 22 Notice of Disciplinary Action. The argument is factually and legally unsupported.

In explaining its decision that Edgar failed to show a discriminatory motivation for the termination, the court referred to several factors that supported the District's termination decision: (1) it was reasonable for the District to be "alarm[ed]" by Edgar's conduct in taking a computer without permission and then giving the computer to his wife who then engaged in actions consistent with an intent to keep the computer and caused a computer supplier to be concerned that the school was selling the discounted school computers on eBay; (2) Edgar lied about his actions for a "significant period of time"; and (3) Edgar became "hostile, dis[c]ourteous, and inappropriately aggressive" when confronted with his actions.

Contrary to Edgar's assertions, these grounds for the termination were encompassed within the District's November 2002 written termination notice. With respect to the dishonesty charge, the notice set forth the circumstances concerning Edgar's removal of the computer from the school premises. With respect to the discourteous-treatment charge, the notice described Edgar's conduct during the September 11 meeting and during a later November 20 telephone conversation with Werlin. The notice also referenced and attached several documents that contained substantial additional detailed information about Edgar's alleged misconduct.

Moreover, even assuming the reasons articulated at trial were different from the reasons stated during the termination process, this difference does not necessarily establish discrimination. The evidence showed that the Board violated its own rules when it did not provide a factual explanation for its conclusions. The evidence also showed that the District's written notice of termination did not include certain specific facts which the District later relied upon at trial (such as certain details of Mrs. Edgar's telephone calls to Apple Computers). We agree that this evidence was relevant to show the District's reasons were not the true reasons for the discrimination. However, as the trial court here plainly understood, "[t]he plaintiff must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.]" (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003; accord Guz, supra, 24 Cal.4th at pp. 360-361.)

In related arguments, Edgar challenges several of the trial court's specific factual findings contained in its statement of decision. We find each of these challenges to be without merit.

First, Edgar argues that the trial court erred because it based its decision "largely on the finding that Mrs. Edgar had told Apple that she bought the computer on eBay," and this fact was not specifically stated in the November 2002 notice of termination. Read in its entirely, the court's statement of decision shows that this was only one of many facts relied upon by the court in reaching its conclusion that Edgar did not prove his case. In any event, Mrs. Edgar's telephone conversations with Apple Computers personnel were within the broad scope of the charged misconduct, which specifically referenced these communications. Moreover, as we have stated, the fact that the District did not identify a specific fact in the termination notice does not show as a matter of law that the termination decision was motivated by discrimination.

Edgar additionally argues that the discourteous-treatment ground was not a legitimate reason for the termination because his conduct was a reasonable reaction to the District's continued violation of its own procedures. However, after evaluating the witness testimony and examining the documentary evidence, the trial court rejected this argument. The court impliedly found that Edgar's conduct, which included uncontrolled anger and name-calling, was not a reasonable reaction to the events and served as a legitimate basis for the District to conclude that he should no longer continue as a custodian at the elementary school.

We also reject Edgar's challenge to the court's reliance on the testimony of union representative Hal Trimble. The court found Trimble's testimony to be consistent with the other witness testimony, and also noted that school officials offered to permit Trimble to represent Edgar at the initial meetings. The fact that Edgar believes Trimble would not have been an effective representative does not negate the validity of the court's findings.

III. Edgar's Challenge to the Termination Penalty Was Not Before the Trial Court

Edgar also argues that the termination remedy was "excessive" because the District policies requires progressive discipline and because of various other factors, including the lack of prior misconduct in Edgar's 12-year employment record. This issue was not before the trial court in the Damages Action. The court granted summary adjudication of the Wrongful Termination claim challenging the justification for the termination and the nature of the penalty for the asserted wrongs. Edgar has never challenged this ruling.

Moreover, in the Writ action, Edgar was ordered reinstated to his position, and the court ordered that he could not be terminated until and unless the Board followed its procedural rules. If the District thereafter decides to terminate Edgar, and Edgar believes this penalty is excessive and he timely challenges this new decision, he will be entitled to raise this issue in a writ proceeding.

DISPOSITION

Judgment affirmed. Appellant is ordered to pay respondent's costs on appeal.

WE CONCUR: NARES, Acting P. J., IRION, J.


Summaries of

Edgar v. Chula Vista Elementary Sch. Dist.

California Court of Appeals, Fourth District, First Division
Sep 26, 2008
No. D049242 (Cal. Ct. App. Sep. 26, 2008)
Case details for

Edgar v. Chula Vista Elementary Sch. Dist.

Case Details

Full title:GARRY EDGAR, Plaintiff and Appellant, v. CHULA VISTA ELEMENTARY SCHOOL…

Court:California Court of Appeals, Fourth District, First Division

Date published: Sep 26, 2008

Citations

No. D049242 (Cal. Ct. App. Sep. 26, 2008)