Opinion
A129754
10-07-2011
RICHARD HEYER, Plaintiff and Appellant, v. GOVERNING BOARD OF THE MOUNT DIABLO UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. N10-0859)
Richard Heyer was employed as vice-principal at Northgate High School for almost 12 years. In February 2010, he received notice from the Mount Diablo Unified School District (District) of possible reassignment to a classroom teaching position for the following school year. On April 14, 2010, the District gave Heyer notice that he would be reassigned to classroom duties effective July 1, 2010. He challenged the reassignment by petition for a writ of mandate, arguing that he was entitled to a hearing under the provisions of the Education Code and the Government Code prior to the personnel action, and that his due process rights had been violated. Heyer subsequently argued that the true reasons for his reassignment were age discrimination and retaliation for his complaints about such discrimination. The trial court denied the petition. We affirm. School administrators may have tenure in their teaching positions, but they do not have tenure or due process rights with respect to their administrative assignments. The District was free to reassign Heyer to teaching duties with or without cause and without a hearing. His age discrimination claim is forfeited because it was not properly raised in the writ application.
I. BACKGROUND
Heyer worked as a teacher or as an administrator in East Bay public schools since 1987. From about 1998 to 2010, he served as vice-principal of Northgate High School in Walnut Creek, part of the District. In 2010, he was the oldest and the most senior vice-principal in the District's six high schools.
Heyer alleges that in the 2008-2009 and 2009-2010 school years, the new principal of Northgate High School, John McMorris, targeted him with false charges of unprofessional conduct and unsatisfactory work performance. In an initial management personnel evaluation dated October 2009, McMorris identified several areas of growth for Heyer, including organizational leadership skills, and judgment and decision making. In January 2010, McMorris rated Heyer's performance in those areas as unsatisfactory. He issued a remediation plan for Heyer. Heyer responded with a 12-page letter (supported by 12 exhibits) expressing his "total and complete disagreement with any and all of the erroneous conclusions reached by Principal John McMorris." He disputed McMorris's criticisms of the way he allocated his time, dealt with coworkers, and implemented school policies. Heyer, in turn, criticized McMorris's own judgment on these matters.
On February 24, 2010, Gail Isserman, the District's assistant superintendent for personnel services, issued Heyer a "Notice of Possible Reassignment or Release from Current Administrative Assignment," informing him that he could be reassigned to a teaching position for the 2010-2011 school year pursuant to Education Code section 44951.
All statutory references are to the Education Code unless otherwise indicated.
In March 2010, McMorris issued a final management personnel evaluation that again rated Heyer as unsatisfactory in organizational leadership and judgment and decision making. McMorris wrote, "In the past two years, I have received numerous documented complaints regarding Mr. Heyer's unprofessional behavior to students, staff and fellow administrators. I have attempted unsuccessfully to work with Mr. Heyer to improve working relationships with all stakeholders. These attempts have been met with denial and a refusal to take ownership of areas of growth . . . ." He recommended that Heyer be reassigned to the classroom. Heyer responded with a two-page letter arguing that he had taken all of the actions required by his January 2010 remediation plan, and an eight-page letter disputing in great detail his negative evaluation.
In an April 12, 2010 letter to Isserman, Heyer wrote, "I received on the afternoon of Friday, April 9, 2010, your notification of the [District Governing] Board's [(Board's)] intention on April 13, 2010, in closed session, to consider the recommendation to reassign me from my current Vice-Principal position to a teaching position. [¶] I hereby appeal that recommendation and request an opportunity to address the Board in that connection in closed session. However, in view of the limited notice given, I request additional time of not less than two weeks to obtain representation and prepare for said closed session with the Board." The Board denied Heyer an extension of time.
In an April 14 letter, Isserman informed Heyer "that on April 13, 2010, pursuant to section 44951 . . . , the [Board] took action to reassign you to a teaching position with the District effective July 1, 2010."
On June 2, 2010, Heyer filed his petition for a writ of mandate in the Contra Costa County Superior Court. He argued the Board violated section "44934, et seq." and Government Code section 11500 et seq. by removing him from his position as vice- principal and demoting him to classroom teacher without notice or a hearing. On June 4, the court issued an alternative writ ordering the Board to set aside and annul its removal of Heyer or show cause why it had not done so. The Board filed an opposition arguing that section 44951, not section 44932 et seq., governed Heyer's reassignment and that the Board had complied with all requirements of section 44951. In his reply, Heyer argued that the true reasons for his reassignment were age discrimination and retaliation for his complaints about such discrimination. He also argued that section 44951 did not authorize the Board to remove him from his position as vice-principal and demote him to the position of classroom teacher because section 44951 "refers only to a release and obviously [is] not designed to dismiss or demote an employee or reduce the employee in rank or pay." He averred that his reassignment to classroom teacher would reduce his salary by about $30,000 and eliminate family health insurance benefits worth another $18,000.
Section 44934 is part of Article 3, "Resignations, Dismissals, and Leaves of Absence" (§§ 44930-44987.3), of Title 2 ("Elementary and Secondary Education"), Division 3 ("Local Administration"), Part 25 ("Employees"), Chapter 4 ("Employment— Certificated Employees") of the Education Code. Within Article 3, section 44930 pertains to resignations and section 44931 pertains to reemployment after breaks in service. Sections 44932 to 44947 pertain to dismissal or suspension of permanent employees, with section 44934 addressing the required written statement of charges and notice of intent to suspend or dismiss. We interpret Heyer's reference to "section 44934, et seq." as a reference to sections 44932 to 44947, which we shall refer to as "section 44932 et seq."
The trial court denied Heyer's petition. Relying on Barthuli v. Board of Trustees (1977) 19 Cal.3d 717, 722-723 (Barthuli); Quirk v. Board of Education (1988) 199 Cal.App.3d 729, 735; Hentschke v. Sink (1973) 34 Cal.App.3d 19, 22 (Hentschke), it ruled, "[Heyer] has not met his burden on this motion of showing that his reassignment to a classroom teaching position violated any due process right provided him by the Education Code. [Citation.] While there is some evidence supplied by [Heyer] in his reply that the [Board] was aware of [Heyer's] negative performance reviews, there is no evidence that the . . . District based its decision to notice [Heyer's] release or reassignment for this reason. This reason is only speculation on [Heyer's] part. Thus, the Education Code sections concerning 'unprofessional conduct'—and the due process rights they provide—are not triggered. See . . . Section 44932, et seq. The evidence in the record shows only a reassignment without cause in compliance with the notice requirement of Section 44951. Administrators have no right to any other 'due process' to challenge a release or reassignment under this section. [Citations.]"
II. DISCUSSION
We affirm the trial court's denial of Heyer's writ petition. We hold that section 44932 et seq. did not apply to Heyer's reassignment, even assuming the reassignment was for cause. Settled law establishes that administrators do not accrue tenure in their administrative positions and may be reassigned with or without cause without triggering any due process requirements other than statutory notice requirements.
A writ of mandate pursuant to Code of Civil Procedure section 1085 may be issued when the respondent failed to perform a clear, present and usually ministerial duty and the petitioner had a clear, present and beneficial right to performance of that duty. (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 335-336 (Agosto).) The writ will not be issued if the petitioner has a plain, speedy and adequate remedy at law. (Id. at p. 336, citing Code Civ. Proc., § 1086.) " 'In reviewing the trial court's ruling on a [petition for] writ of mandate [citation], the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence.' [Citation.] '[W]hen the matter is heard only on written evidence, all conflicts in the written evidence are resolved in favor of the prevailing party, and factual findings are examined for substantial evidence.' [Citation.] 'However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed.' [Citation.]" (Agosto, at p. 336.) A. School Administrators Have No Tenure Rights in Their Position.
Persons employed in public school administrative positions that require certification are permanent employees in the classification of classroom teacher. (§ 44897.) Similarly, classroom teachers who are promoted to administrative positions (whether or not those positions require certification) retain their permanent employee status in the classification of classroom teacher. (§ 44893.) In both situations, the administrators accrue tenure as classroom teachers only and have no tenure or vested right to remain in the administrative or supervisory position. (§§ 44893, 44897; Barthuli, supra, 19 Cal.3d at pp. 721-723; Agosto, supra, 189 Cal.App.4th at pp. 339-340; Grant v. Adams (1977) 69 Cal.App.3d 127, 132-133 (Grant); Hentschke, supra, 34 Cal.App.3d at p. 22 [discussing former statutes similar to § 44897].)
Section 44897, subdivision (a) provides in relevant part: "A person employed in an administrative or supervisory position requiring certification qualifications . . . shall, in a district having an average daily attendance of 250 or more pupils, be classified as and become a permanent employee as a classroom teacher." We take judicial notice of the fact that the District, which Heyer represents has six high schools, has 250 or more pupils. (Evid. Code, §§ 452, subd. (h); 459, subd. (a).)
Section 44893 provides: "A permanent employee when advanced from a teaching position to an administrative or supervisory position . . . shall retain his permanent classification as a classroom teacher."
Accordingly, administrators who are removed from their administrative positions have no statutory or constitutional due process right to a hearing or other opportunity to be heard regarding that action (Barthuli, supra, 19 Cal.3d at p. 722 [constitutional]; Hentschke, supra, 34 Cal.App.3d at p. 22 [statutory]), even if the removal results in a reduction in compensation or loss of professional standing (Hentschke, at p. 23). "The distinction is not without reason. . . . [A] second or third level administrator bears to his superiors a relationship of the most intimate nature, requiring complete trust by the top administrators in the judgment and cooperative nature of the subordinate. The loss of that trust is not a matter susceptible of proof such as is involved in the cases where a classroom teacher is dismissed or demoted for objective acts of misconduct. To introduce into the administrative structure the elements of discharge for 'cause' and of formal hearing would be to make effective school administration impossible." (Ibid.)
Administrators have only limited statutory rights with respect to their administrative positions. Under section 44951, they have the right to continue in their administrative positions during the coming school year unless otherwise notified by March 15. (Hoyme v. Board of Education (1980) 107 Cal.App.3d 449, 451 [strict compliance with § 44951 is required].) Under section 44896, they have the right upon request to receive a written statement of the reasons for their transfer from an administrative position to a teaching position. However, the remedy for an inaccurate statement of reasons is not reinstatement to the administrative position but a new and accurate statement of reasons. (Grant, supra, 69 Cal.App.3d at pp. 136-138 [discussing former § 11314.7, which was substantially similar to current § 44896].)
Section 44951 provides, with exceptions not relevant here, "Unless a certificated employee holding a position requiring an administrative or supervisory credential is sent written notice deposited in the United States registered mail with postage prepaid and addressed to his or her last known address by March 15 that he or she may be released from his or her position for the following school year, or unless the signature of the employee is obtained by March 15 on the written notice that he or she may be released from his or her position for the following year, he or she shall be continued in the position. The provisions of this section do not apply . . . to the termination of employment pursuant to Section 44955." Section 44955 applies to reductions in force.
Section 44896 provides in relevant part, "Whenever a person employed in an administrative or supervisory position requiring certification qualifications is transferred to a teaching position, the governing board of the school district shall give such employee, when requested by him, a written statement of the reasons for such transfer."
Heyer has not established a violation of either statute. He does not dispute that he received notice on February 24, 2010, that he might be reassigned to a teaching position for the upcoming school year as required by section 44951, and he never requested a statement of reasons for his reassignment pursuant to section 44896.
Heyer argues he was entitled to a hearing pursuant to section 44934. That statute, however, applies only to dismissals and suspensions from service. Sections 44932 and 44933 specify the reasons for which a permanent employee may be "dismissed" or in some circumstances suspended (see § 44932, subd. (b)), and section 44934 sets forth the notice and hearing rights for an employee who has received "a written statement . . . charging that there exists cause, as specified in Section 44932 or 44933, for the dismissal or suspension of a permanent employee . . . ." (§ 44934, italics added.) Heyer was reassigned rather than dismissed, thus making section 44932 et seq. inapplicable. (See Jefferson v. Compton Unified School Dist. (1993) 14 Cal.App.4th 32, 39 (Jefferson); see also Whisman v. San Francisco Unified Sch. Dist. (1978) 86 Cal.App.3d 782, 792 [reassignment is not dismissal due to reduction in staff subject to the requirements of § 44955]); Ellerbroek v. Saddleback Valley Unified School Dist. (1981) 125 Cal.App.3d 348, 364 (Ellerbroek) [reassignment from one administrative position to another was not discharge, dismissal or suspension].)
Heyer argues that section 44951 applies only to reassignments "without cause" and contends the evidence shows that the Board reassigned him for cause based on his unfavorable performance reviews. He notes that the trial court wrote that his reassignment pursuant to section 44951 was valid because there was no evidence that the Board approved the reassignment for cause, thus implying that the reassignment would not have been valid if the Board had pursued it for cause. We affirm the trial court for two reasons. First, because the February 24, 2010 notice did not mention any cause for Heyer's reassignment, the trial court's finding that Heyer was reassigned without cause is supported by substantial evidence. Second, even if the true reason for the Board's action was Heyer's negative performance evaluations and the reassignment was for cause, the reassignment was valid. When a reassignment is made for cause, a school district is not restricted by section 44951. (Ellerbroek, supra, 125 Cal.App.3d at p. 366; Jefferson, supra, 14 Cal.App.4th at p. 39.) No other statute or constitutional provision supplies a right to due process regarding the reassignment. As noted, sections 44932 to 44934 do not apply because Heyer was not dismissed or suspended. Similarly, section 44955 does not apply because he was not laid off due to a reduction in force. Instead, he was reassigned from an administrative to a teaching position. As clearly established in law, administrators do not have tenure or due process rights with respect to their administrative assignments. (Barthuli, supra, 19 Cal.3d at pp. 721-723.) The Board was free to reassign Heyer to a teaching position for any reason not affirmatively prohibited by statutory or constitutional law. B. The Discrimination Claim
Finally, Heyer argues that even if the District had broad discretion to reassign him with or without cause and without affording him a hearing on the issue, the District could still not discharge him for a constitutionally or statutorily prohibited reason. He argues he was unlawfully discharged due to age discrimination and retaliation for his complaints about age discrimination, thus invalidating his reassignment. Heyer, of course, is correct that a reassignment based on age discrimination or retaliation for his complaints about age discrimination would be unlawful. (Cf. Shimoyama v. Board of Education (1981) 120 Cal.App.3d 517, 524 [removal of teacher from coaching assignment in retaliation for exercise of First Amendment rights is prohibited].) However, Heyer has forfeited this argument. He raised the discrimination argument for the first time in the trial court in his reply brief. The petition itself did not allege discrimination and the trial court did not address the discrimination argument. (See Ward v. Taggart (1959) 51 Cal.2d 736, 742 [reviewing courts will not address a factual issue raised for the first time on appeal].) Even on appeal, he barely mentions his discrimination claims in his opening brief and provides no reasoned argument or citation of authority on the issue. Arguments not stated under a separate heading or supported by legal authority may be treated as forfeited. (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1; Cal Rules of Court, rule 8.204(a)(1)(B).)
By order of July 18, 2010, we struck Heyer's late filed reply brief as untimely. We do not, in any event, entertain arguments raised for the first time in a reply brief. (See REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
In any event, Heyer has not shown an entitlement to writ relief based on the discrimination claim. (Cf. Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729, 745 [physician not entitled to Code Civ. Proc., § 1085 writ relief in discrimination action where hospital did not provide clear right to due process hearing].)
Board represents that Heyer has pursued claims for discrimination, retaliation and harassment in a separate action filed in the United States District Court for the Northern District of California (Case No. 3:09-cv-04525-MMC).
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III. DISPOSITION
The order denying the petition for writ of mandate is affirmed. Heyer shall pay the Board's costs on appeal.
Bruiniers, J. We concur: Jones, P. J. Simons, J.