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Los Angeles Unified Sch. Dist. v. Commn. on Prof. Competence of Los Angeles Unified Sch. Dist.

California Court of Appeals, Second District, Seventh Division
Mar 19, 2008
No. B191321 (Cal. Ct. App. Mar. 19, 2008)

Opinion


LOS ANGELES UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON PROFESSIONAL COMPETENCE OF THE LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant MATTHEW IN HO KIM, Real Party In Interest and Appellant. B191321 California Court of Appeal, Second District, Seventh Division March 19, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County. David Yaffe, Judge. Los Angeles County Super. Ct. No. BS099756

Trygstad, Schwab & Trygstad, Lawrence B. Trygstad, Richard J. Schwab and Shanon D. Trygstad for Real Party In Interest and Appellant.

Liebert Cassidy Whitmore, Mary L. Dowell, Pilar Morin and Arlin B. Kachalia for Plaintiff and Respondent.

ZELON, J.

Real Party In Interest and Appellant Matthew In Ho Kim (“Kim”) is a certified teacher employed by Respondent Los Angeles Unified School District (the “District”). The District sought to dismiss Kim based on 19 charges of sexually inappropriate conduct toward female students and staff. Following an administrative hearing before the Commission on Professional Competence (the “Commission”) brought pursuant to Education Code section 44944, the Commission found that only three of the 19 charges were established and concluded that, although cause for discipline existed, dismissal was not warranted under the circumstances of the case. The Commission ordered that Kim be retained as a certified employee of the District.

Unless otherwise indicated, all further statutory references are to the Education Code.

The District thereafter filed a petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. The trial court granted the District’s petition, finding that two additional charges of sexually inappropriate conduct were supported by the weight of evidence and that the Commission’s decision was an abuse of discretion to the extent it prohibited the District from complying with its legal duty under state and federal law to protect its students and staff from sexual harassment by a teacher. The trial court vacated the Commission’s ruling and remanded the matter to the Commission for further proceedings consistent with its decision. Kim now appeals the trial court’s judgment granting the writ petition. For the reasons set forth below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Kim’s Background And Employment With The District

Kim was born with cerebral palsy. As a result of this medical condition, he is confined to a wheelchair and has limited use of his legs and arms. He is dependent on others to assist him in performing the basic necessities of life, including eating, bathing, and dressing. During his employment with the District, Kim has required the full-time services of a personal accommodation assistant to help him with common daily activities while he is at work.

Kim graduated from the University of California at Berkeley with a bachelor’s degree in physics and later earned two master’s degrees. In 1998, he earned his teaching credential in special education. He began working as a probationary teacher at Grant High School in 1999 and thereafter became a certified employee of the District. While at Grant High School, Kim was assigned to teach special education students.

At the start of his employment with the District, Kim received a copy of the District’s sexual harassment policy. It provided that “[i]t is the policy of the Los Angeles Unified School District to maintain a working and learning environment that is free from sexual harassment” and that “[t]he District considers sexual harassment to be a major offense which can result in disciplinary action to the offending employee.” The policy defined sexual harassment as including “verbal, visual, or physical conduct of a sexual nature” where “[t]he conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance or of creating an intimidating, hostile, or offensive work or educational environment.” It specifically identified “unwanted sexual . . . comments” and “unwanted touching” as prohibited forms of sexual harassment.

During the 2000-2001 school year, Grant High School received complaints from three female students and one female staff member, Lisa McIntyre, about alleged inappropriate conduct by Kim. The alleged conduct toward the female students primarily consisted of Kim staring at the students in a way that made them uncomfortable, asking a student personal questions about her relationships and virginity, and making inappropriate statements to a student such as “you love me.” The alleged conduct toward Ms. McIntyre, Kim’s teaching assistant, consisted of Kim touching her breast while they were teaching a class. On October 30, 2000, the principal of Grant High School, Joseph Walker, counseled Kim about his inappropriate conduct and provided him with a copy of the District’s sexual harassment policy. On December 15, 2000, following another meeting with Kim, Principal Walker issued Kim a written memorandum that directed him “to refrain from any physical conduct with students except for the necessity to defend [himself] or to protect another student from harm” and “to refrain from the use of any language or phrases with [his] students and aides that could be construed as inappropriate or of a sexual nature.”

During the subsequent 2001-2002 school year, Grant High School received additional complaints of inappropriate conduct by Kim toward a female student, Kelsey E., and a female staff member, Karen Kolway. In December 2001, Kelsey E. reported that Kim had touched her hair and her leg in a manner that made her uncomfortable. In February 2002, Ms. Kolway, a school counselor, reported that Kim had touched her breast during a meeting. On February 14, 2002, Principal Walker met with Kim about these complaints as well as the prior complaints of inappropriate conduct and advised Kim that he was directing the matter to the District for an investigation. Principal Walker thereafter issued Kim a Notice of Unsatisfactory Acts, charging him with failing to maintain appropriate relationships with Kelsey E. and Ms. Kolway and recommending that he be dismissed from his employment.

In mid-February 2002, Kim was removed from his teaching position at Grant High School and re-assigned to a district office. Kim has remained in the district office since 2002 where he has had no further contact with students and only minimal interactions with female staff. There have been no complaints of inappropriate conduct by Kim since his removal from the classroom.

II. The District’s Charges Of Dismissal Against Kim

On or about October 14, 2003, following an investigation by the Educational Equity Compliance Office, the District notified Kim that it intended to dismiss him from his employment. In its First Amended Accusation and Statement of Charges, the District charged Kim with 19 acts of sexually inappropriate conduct toward female students and staff in violation of the District’s sexual harassment policy. The charges were similar in nature and generally consisted of allegations of staring, inappropriate personal comments, touching of students’ hair, shoulders, and legs, and touching of staff members’ breasts. The District alleged that these charges established the following causes for dismissal under section 44932 of the Education Code: (1) immoral or unprofessional conduct, (2) evident unfitness for service, (3) physical or mental condition rendering Kim unfit to instruct or associate with children, and (4) persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed by the District. In response to the District’s charges, Kim requested an administrative hearing pursuant to section 44944.

The administrative hearing was held before the three-member Commission in March and May 2005. The Commission conducted the hearing over the course of eight days and received a substantial amount of oral and documentary evidence. In his defense to the charges, Kim essentially argued that the inappropriate conduct alleged by the District either did not occur, or if it did occur, it was the result of involuntary movements of his left arm caused by cerebral palsy. On June 24, 2005, the Commission issued its decision, finding cause for discipline against Kim based on three of the 19 charges, but ultimately deciding that dismissal was not warranted under the circumstances of the case.

A. Commission’s Findings On Sexual Harassment Of Students

In its decision, the Commission found that only three of the 19 charges were established by a preponderance of the evidence. The three sustained charges concerned Kim’s alleged inappropriate conduct toward three female students – Patricia M., Kelsey E., and Maria M.

With respect to Patricia M. (Charge 9), the District alleged that, on or about December 11, 2000, Kim engaged in inappropriate conduct toward Patricia M. when he stared at her, played with her hair, and said “I love you” or “you love me” or words to that effect. The Commission found that Patricia M.’s testimony as to these facts was credible and was sufficient to establish the charge despite Kim’s denial of the allegations.

With respect to Kelsey E. (Charge 12), the District alleged that, on or about October 16, 2001, Kim moved his wheelchair close to Kelsey E., touched her shoulders and hair with his hand, and rested his arm on her upper thigh. The Commission found that Kelsey E.’s testimony as to these facts was sufficient to establish the charge because she testified credibly that Kim had touched her shoulders, hair, and upper thigh. Although Kim testified that it was physically impossible for him to touch Kelsey E.’s leg due to the limited mobility of his arms, the Commission found that, based on videotape evidence, it was possible for Kim’s left arm to move to a lower position than he claimed. The Commission found that Kim’s conduct toward Kelsey E. was in violation of the District’s sexual harassment policy and the December 15, 2000 directive issued by Principal Walker.

The Commission found that while there was no question that Kim makes certain involuntary movements with his left arm due to cerebral palsy, the medical evidence was divided and inconclusive as to the extent of Kim’s control over his arm. Based on the videotape evidence and witness testimony, the Commission found that Kim’s left arm had more mobility and control than he contended.

With respect to Maria M. (Charge 15), the District alleged that, during the 2000-2001 school year, Kim repeatedly told Maria M. that she had beautiful hair and regularly touched her hair and leg. The Commission found that Maria M. credibly testified that Kim had touched her hair on approximately five occasions, touched her leg, and told her that she had beautiful hair. The Commission also found that Kim admitted that he probably had told Maria M. that she had beautiful hair. The Commission found that Maria M.’s testimony was sufficient to establish this charge and that Kim’s conduct toward Maria M. was in violation of the District’s sexual harassment policy and the December 15, 2000 directive issued by Principal Walker.

B. Commission’s Findings On Sexual Harassment Of Staff

In rejecting the remaining charges, the Commission found that the allegations of inappropriate conduct toward the two female staff members, Lisa McIntyre and Karen Kolway, were not established by a preponderance of the evidence. With respect to Ms. McIntyre, the Commission found that her failure to file a formal complaint at the time the alleged touching of her breast occurred suggested that she did not truly feel that she had been a victim of sexual harassment. The Commission also found that the District did not conduct a formal investigation when it received Ms. McIntyre’s oral report of inappropriate touching and that this was evidence that the District did not find the report to be credible. With respect to Ms. Kolway, the Commission found that Ms. Kolway admitted that she had her eyes closed when Kim purportedly touched her breast and that Kim’s personal accommodation assistant, who was seated on the other side of Kim at the time of the alleged incident, denied seeing any inappropriate conduct.

C. Commission’s Decision To Retain Kim As A Certified Teacher

Based on the three sustained charges, the Commission concluded that there was cause for discipline against Kim under section 44932. Specifically, the Commission found that Kim (1) engaged in “unprofessional conduct” (§ 44932, subd. (a)(1)) with respect to his conduct toward Kelsey E., (2) demonstrated “evident unfitness for service” (§ 44932, subd. (a)(5)) with respect to his conduct toward Kelsey E., and (3) persistently violated or refused to obey the school laws of the state or the reasonable regulations of the District (§ 44932, subd. (a)(7)) with respect to his conduct toward Kelsey E. and Maria M. The Commission further found that Kim’s conduct was such as to render him “unfit to teach” within the meaning of Morrison v. State Board of Education (1969) 1 Cal.3d 214 (Morrison). In considering Kim’s fitness to teach under the Morrison factors, the Commission noted that the likelihood of recurrence of the conduct was “unclear,” but could be decreased by keeping an aid directly to Kim’s left side and using a kidney-shaped table to serve as a barrier between Kim and his students.

The Commission found that Kim had not engaged in “immoral conduct” (§ 44932, subd. (a)(1)) and did not have a “physical or mental condition unfitting him . . . to instruct or associate with children” (§ 44932, subd. (a)(6)) with respect to any of the established charges. The Commission did not consider whether Kim had engaged in “unprofessional conduct” (§ 44932, subd. (a)(1)) with respect to his conduct toward Patricia M. or Maria M. because the District failed to provide Kim with notice of these specific charges as required by section 44938.

In Morrison, the California Supreme Court held that a certified teacher may not be dismissed for “immoral or unprofessional conduct,” within the meaning of section 44932, unless such conduct demonstrates an unfitness to teach. (Morrison, supra, 1 Cal.3d at p. 229.) In determining whether a teacher’s conduct indicates an unfitness to teach, the Commission may consider the following factors: (1) the likelihood that the conduct adversely affected students or fellow teachers; (2) the proximity or remoteness in time of the conduct; (3) the type of teaching certificate; (4) the extenuating or aggravating circumstances; (5) the praiseworthiness or blameworthiness of the motives resulting in the conduct; (6) the likelihood of recurrence of the conduct; and (7) the extent to which disciplinary action would have a chilling effect on the constitutional rights of teachers. (Ibid.)

Although the Commission concluded that grounds for dismissal existed, it exercised its discretion to determine that dismissal was not appropriate under the circumstances of the case. In so doing, the Commission stated that only three of the 19 charges had been established by the evidence and that, in light of those charges, “dismissal would be too harsh a level of discipline.” The Commission further stated that because the District only sought the specific penalty of dismissal, it only considered dismissal and did not consider any other form of discipline. The Commission ordered that the First Amended Accusation against Kim be sustained as to the three established charges “without imposition of discipline” and that Kim be “retained as a certified employee” of the District.

III. The District’s Petition For Writ Of Administrative Mandate

On July 21, 2005, the District requested a copy of the administrative record from the Office of Administrative Hearings. The agency mailed the requested record to the District’s counsel via overnight delivery on September 12, 2005, and the record was delivered to counsel’s office the following day. On October 13, 2005, the District filed a petition for writ of administrative mandate in Los Angeles County Superior Court.

In its petition, the District sought a peremptory writ directing the Commission to set aside its decision and to enter a new order dismissing Kim. The District argued that each of the 19 charges against Kim were supported by the weight of evidence because multiple students and staff members testified that Kim had engaged in sexually inappropriate conduct and the type of conduct that the witnesses described was similar in nature. The District also contended that the Commission’s decision to retain Kim conflicted with the District’s legal duty under state and federal law to protect students and staff from sexual harassment, and thus, it subjected the District to potential liability for Kim’s sexually harassing conduct.

On March 10, 2006, the trial court granted the District’s petition. In its Statement of Decision, the court found that two of the charges alleging harassment of female staff members were supported by the weight of evidence and should have been sustained by the Commission. Specifically, with respect to Karen Kolway, the court found that her testimony that she felt Kim touch her breast was “not unclear,” and although her eyes were closed at the time of the touching, there was “no evidence in the administrative record that could lead any reasonable person to believe that anyone else could have touched [Ms. Kolway’s] breast except [Kim].” With respect to Lisa McIntyre, the court found that “there was no question but that the groping of [Ms.] McIntyre’s breast occurred” and that a student corroborated this fact when she testified that she witnessed the touching and heard Kim say that he enjoyed it or words to that effect.

In addition to these findings, the trial court concluded that the Commission’s decision constituted an abuse of discretion “to the extent that it prohibits the school district from complying with state and federal laws that require the school district, like any other employer, to protect its employees, as well as its students, from continued acts of sexual harassment by a teacher or any other employee.” The court noted that the Commission found that Kim had engaged in conduct that violated the District’s sexual harassment policy, but refused to impose any discipline on Kim because the District solely sought dismissal. The court stated while the parties agreed that the Education Code prohibited the Commission from imposing any discipline other than dismissal, “the statute cannot be construed to allow the Commission’s decision to prevent the school district from performing its duty under state and federal law to do whatever is necessary to protect its students and [employees] [sic] from further sexual harassment by Kim.” The court further stated that “[b]ecause both parties construe the decision of the Commission to do so, the Commission must change its decision to make it clear that no such result is intended.” The court vacated the Commission’s ruling and remanded the matter to the Commission for further proceedings consistent with its decision. Kim thereafter filed a timely appeal.

DISCUSSION

I. Standard Of Review

“The decision of a Commission on Professional Competence may be challenged in superior court by means of a petition for a writ of mandate. [Citations.]” (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 313-314.) In reviewing the Commission’s decision, the trial court “shall exercise its independent judgment on the evidence.” (§ 44945.) The trial court is “not bound by the findings of the Commission in exercising its independent judgment review.” (Pittsburgh Unified School Dist. v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 977.) The trial court is also “free to make its own determination of the credibility of witnesses in the process. [Citation.]” (Ibid.) As a matter of public policy, where administrative decisions are subject to the independent judgment standard of review, “the responsibility to make factual determinations is left with the trial court rather than with the administrative agency. [Citation.]” (San Dieguito Union High School Dist. v. Commission on Professional Competence (1985) 174 Cal.App.3d 1176, 1180.)

Following the trial court’s independent review of the record, the scope of review on appeal is limited. (San Dieguito Union High School Dist. v. Commission on Professional Competence, supra, 174 Cal.App.3d at p. 1180.) The appellate court must sustain the trial court’s findings if they are supported by substantial evidence. (Pasadena Unified School Dist. v. Commission on Professional Competence, supra, 20 Cal.3d at p. 314.) “In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court. [Citation.]” (Ibid.) “If appellate scrutiny reveals that substantial evidence supports the trial court's findings and conclusions, the judgment must be affirmed.” (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 697.)

II. Trial Court’s Findings On Sexual Harassment Of Female Staff

On appeal, Kim challenges the trial court’s findings that he engaged in sexually harassing conduct toward the two female staff members, Lisa McIntyre and Karen Kolway. Kim contends that he either did not engage in any inappropriate touching of these employees, or if he did, it was the result of an involuntary and unintentional movement of his arm. We conclude that substantial evidence supports the trial court’s findings on these charges.

A. Lisa McIntyre

Ms. McIntyre was Kim’s teaching assistant in 2000. At the administrative hearing, she testified that, on October 12, 2000, Kim grabbed her breast with his left hand while they were standing in front of the class teaching the students. Ms. McIntyre also testified that the students started making comments about the touching as soon as it occurred and that when one student said “Oh, come on, Mr. Kim, you know you liked it,” Kim laughed and responded that he did. Ms. McIntyre immediately reported the incident to the assistant principal, but she did not file a formal complaint of harassment at that time and she returned to the classroom as Kim’s teaching assistant for the remainder of the year. Ms. McIntyre also told a coworker that she thought the touching was probably accidental. Patricia M., who was a student in the class, testified that she saw Kim grab Ms. McIntyre’s breast and that in response to a student’s comment that “you know you liked it,” Kim laughed and said that he did. During his testimony, Kim did not recall whether he touched Ms. McIntyre’s breast, but insisted that any touching, if it did occur, would have been unintentional because he lacks control over his arms. Kim also testified that he apologized to Ms. McIntyre when the incident was brought to his attention and that she told him not to worry about it. The Commission found that this charge was not supported by the evidence based on Ms. McIntyre’s failure to file a formal complaint and the District’s failure to conduct a formal investigation at the time of the incident.

We conclude that the trial court’s finding that Kim engaged in sexually harassing conduct toward Ms. McIntyre is supported by substantial evidence. Ms. McIntyre’s account of the touching incident was corroborated by Patricia M., whom the Commission found to be credible with respect to her testimony that Kim had inappropriately touched her. Both Ms. McIntyre and Patricia M. testified that Kim touched Ms. McIntyre’s breast, and in his testimony, Kim did not deny it. Both Ms. McIntyre and Patricia M. also testified that in response to a student’s remark that “you know you liked it,” Kim laughed and said that he did. Although Kim denied that he made this comment, the trial court was free to weigh the credibility of the witnesses and to determine that Ms. McIntyre and Patricia M. were more credible in their testimony. (Pittsburgh Unified School Dist. v. Commission on Professional Competence, supra, 146 Cal.App.3d at p. 977 [under the independent judgment standard, the trial court may weigh the credibility of witnesses].) Kim’s conduct and statement at the time of the incident supports the finding that his touching of Ms. McIntyre was not merely accidental as he claimed, and that notwithstanding Ms. McIntyre’s failure to file a formal complaint, the charge should have been sustained.

B. Karen Kolway

Ms. Kolway, a counselor at Grant High School, attended a meeting with Kim on or about February 7, 2002. When she arrived at the meeting, Kim was seated at the head of a conference table and his personal accommodation assistant, Doni Darmawan, was seated to Kim’s right. Ms. Kolway testified that she stood on Kim’s left side while they talked and that because she has difficulty understanding him, she closed her eyes so that she could better concentrate on what he was saying. Ms. Kolway further testified that as she leaned over to listen to Kim, she felt his hand pinch her right arm and then touch her right breast. In his testimony, Kim denied touching Ms. Kolway’s arm or breast in any manner. Mr. Darmawan also denied seeing any inappropriate conduct by Kim during the meeting. The Commission found that the evidence was insufficient to establish this charge because Ms. Kolway had her eyes closed during the incident so she could not have known that it was Kim who touched her and because Mr. Darmawan did not observe Kim touch Ms. Kolway during the meeting.

We agree with the trial court that Ms. Kolway’s testimony was not unclear as to who touched her breast and that Kim was the only one in the room who was physically close enough to Ms. Kolway to do so. Although both Kim and Mr. Darmawan denied that there was any inappropriate touching during the meeting, the trial court was entitled to give more weight to the testimony of Ms. Kolway who asserted that the touching of her breast had occurred. The trial court also was entitled to draw the reasonable inference that, based on his physical proximity to Ms. Kolway, it was Kim who had engaged in such conduct. Unlike the trial court, it is not our role to consider issues of credibility or to determine whether contrary inferences may be drawn from the evidence. (Pasadena Unified School Dist. v. Commission on Professional Competence, supra, 20 Cal.3d at p. 314.) Rather, resolving all evidentiary conflicts in favor of the judgment, we conclude that the trial court’s finding that Kim engaged in sexually harassing conduct toward Ms. Kolway is supported by substantial evidence.

III. Trial Court’s Finding On The District’s Legal Duty Under Harassment Laws

Kim also challenges the trial court’s finding that the Commission abused its discretion to the extent that its decision prohibited the District from complying with state and federal laws that require it to protect its students and staff from sexual harassment. Kim contends that because the District never alleged a violation of sexual harassment laws, but only a violation of its sexual harassment policy, the trial court improperly decided an issue not raised by the parties. Kim further asserts that, even if sexual harassment laws are properly at issue in this action, the conduct alleged by the District does not rise to the level of actionable sexual harassment under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (Title VII) or the California Fair Employment and Housing Act (Gov. Code § 12940 et seq.) (FEHA). A review of the record reflects that Kim’s argument on this issue lacks merit.

Contrary to Kim’s contentions on appeal, neither the trial court nor the Commission found that his conduct constituted a violation of state or federal laws prohibiting sexual harassment. Instead, the Commission found that Kim’s inappropriate conduct toward certain of his female students constituted a violation of the District’s sexual harassment policy. The trial court expressly recognized these findings of the Commission in its Statement of Decision, explaining that the Commission “found that Kim touched a female student (Kelsey E.) in a way that violated the district’s sexual harassment policy,” found that Kim “engaged in similar sexual harassment of another student (Maria M.),” and “found that Kim engaged in similar conduct with respect to another student (Patricia M.).” The court also noted that, based on these findings, the Commission concluded that Kim had engaged in “unprofessional conduct,” was “evidently unfit for service,” and “persistently violated . . . the school laws of California, or the reasonable regulations of the district,” all within the meaning of section 44932. The trial court did not, however, conclude that Kim’s conduct rose to the level of actionable sexual harassment under state or federal law. Rather, the trial court’s discussion of state and federal harassment laws was focused on the legal duty of the District, like any other employer, to “take immediate and appropriate corrective action” to end harassment once it has occurred and to “take all reasonable steps to prevent harassment from occurring” in the future. (Gov. Code § 12940, subd. (j)(1); see also Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1529 [“Title VII does not permit employers to stand idly by once they learn that sexual harassment has occurred. To do so amounts to a ratification of the prior harassment.”].)

The legal obligation of an employer to take effective remedial action to protect employees from sexual harassment arises when the employer knows or has reason to know that harassment has occurred. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041; Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1192.) Accordingly, an employer need not, and should not, wait until the harassment becomes so severe or pervasive as to warrant legal liability before it does something about it. To the contrary, once an employer becomes aware of an employee’s sexually harassing conduct, even if not yet legally actionable, the employer should take prompt corrective action to end the conduct and to prevent it from recurring in the future. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 478 [“Argument that [employer] should have waited to take action until the harassment became pervasive, continual and systematic is antithetical to Government Code section 12940’s requirement that a supervisor take immediate and appropriate corrective action when a harassment complaint is brought to his attention.”].) If the employer does not take corrective action and the conduct continues, the employer faces potential liability for failing to comply with its legal duty under state and federal harassment laws. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [employer’s awareness of sexual harassment in the workplace and failure to take any remedial action to correct and prevent it subjects employer to liability under FEHA]; Yamaguchi v. U.S. Dept. of Air Force (9th Cir. 1997) 109 F.3d 1475, 1483 [employer can be held liable for sexual harassment under Title VII if it fails to take prompt corrective action not only to end current harassment but also to “deter future harassment”].)

In this case, the trial court found an abuse of discretion in the Commission’s decision to retain Kim to the extent that it prohibited the District from complying with its legal duty under state and federal harassment laws. The trial court concluded, and we agree, that the Commission must, at minimum, consider the effect of the District’s legal obligation to protect students and staff from harassment in deciding whether Kim’s conduct warrants dismissal. Consideration of the District’s legal duty is particularly appropriate here where the Commission found that Kim’s conduct violated the District’s sexual harassment policy and that the likelihood of recurrence of the conduct was unclear. These findings demonstrate that there is at least some risk that Kim’s sexually inappropriate behavior may continue in the future and that the District could be liable if it fails to take appropriate corrective action to prevent further harassment from occurring. The trial court therefore properly considered state and federal laws prohibiting sexual harassment in reviewing the Commission’s decision.

Because the trial court focused on the District’s legal duty under FEHA and Title VII, and not on whether Kim’s conduct constituted a violation of those statutes, we need not decide whether Kim’s conduct was sufficiently “severe or pervasive” or otherwise rose to the level of actionable sexual harassment under state or federal law. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 (under both FEHA and Title VII, for hostile work environment sexual harassment to be actionable, it must be sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment.) This was not a suit for sexual harassment by a female student or staff member. This was an action to determine whether the District could dismiss Kim from his employment as a teacher. As discussed above, an employer need not wait until it has been sued for sexual harassment to take corrective action against an employee who engages in sexually inappropriate behavior.

IV. Trial Court’s Decision To Remand The Matter To The Commission

In its Statement of Decision, the trial court concluded that because both parties construe the Commission’s decision as prohibiting the District from imposing any conditions that will effectively prevent Kim from engaging in further sexual harassment, the Commission “must change its decision to make it clear that no such result is intended.” The trial court accordingly remanded the matter to the Commission for further proceedings consistent with its decision. On appeal, Kim argues that the trial court’s decision constitutes reversible error because the Commission has no authority to prevent the District from imposing lesser discipline or other conditions designed to deter further harassment. Kim also asserts that the trial court misstated his position regarding the scope of the Commission’s authority because Kim had maintained that the District could take action to prevent sexual harassment notwithstanding the Commission’s ruling.

The scope of the Commission’s authority in ruling on charges to dismiss a certified teacher is set forth in section 44944, subdivision (c). The statute provides that the Commission shall issue a disposition determining that the employee “should be dismissed” or “should not be dismissed.” (§ 44944, subd. (c)(1).) It further states that the Commission “shall not have the power to dispose of the charge of dismissal by imposing probation or other alternative sanctions.” (§ 44944, subd. (c)(3).) The “statutory scheme thus limits a commission to only two options” where, as here, a school district solely seeks to dismiss a teacher and does not pursue any other level of discipline. (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 217 (Fontana).) The Commission “may only choose to dismiss or not to dismiss.” (Ibid.)

The parties agree that, under section 44944, the Commission did not have the authority to impose any discipline on Kim other than dismissal. They do not agree, however, as to whether the District has the authority to impose other lesser discipline in light of the Commission’s decision that Kim be retained. Kim argues that the District can impose lesser discipline and pursue other corrective measures to prevent further harassment. The District asserts that the Commission’s decision effectively precludes it from doing so. The trial court’s statement that both parties construe the Commission’s ruling as prohibiting the District from imposing any conditions to prevent harassment is thus factually incorrect as Kim argued before the trial court that the District could impose lesser discipline or other remedial measures. However, this one factual inaccuracy in the court’s Statement of Decision does not require any change in disposition, because a review of the Commission’s decision demonstrates that there is some ambiguity about the scope of its disposition and its intended impact on the District’s ability to take appropriate corrective action. As a result, remand for further proceedings was proper.

On the one hand, the Commission stated in its decision that because the District solely sought dismissal, it only considered dismissal and did not consider any other level of discipline. This suggests that the Commission was not trying to preclude the District from imposing lesser discipline or other conditions on Kim to prevent further harassment from occurring. On the other hand, the Commission ordered that Kim be retained as a certified teacher and that the three charges which were established by the evidence be sustained “without imposition of discipline.” This suggests that the Commission was in fact prohibiting the District from pursuing any disciplinary action against Kim to correct his sexually inappropriate conduct. If that was the Commission’s intent, as the District contends, then its decision constitutes an abuse of discretion.

As the California Supreme Court made clear in Fontana, a school district has the discretion under section 44944 to “determine when to seek disciplinary action and what discipline to seek.” (Fontana, supra, 45 Cal.3d at p. 218.) “The same conduct, in the judgment of the employing district, may constitute grounds for suspending or for dismissing a permanent employee, and nothing in the statutory scheme limits the ability of a district to pursue alternative sanctions, either simultaneously [citations] or . . . in succession.” (Id. at 222.) Therefore, the fact that a commission decides not to dismiss a teacher in dismissal proceedings brought pursuant to section 44944 does not prohibit the district from thereafter initiating suspension proceedings based on the same alleged misconduct. (Id. at pp. 222-223.) As applied here, the Commission’s decision to retain Kim as a certified teacher may not preclude the District from pursuing other disciplinary or corrective measures against him to prevent further harassment. Because there is ambiguity in the Commission’s decision with respect to this issue, we conclude that it was within the trial court’s discretion to remand the matter to the Commission and direct it to clarify the scope of its disposition. If, as Kim contends, the Commission’s decision was not, as would be proper, intended to prohibit the District from disciplining Kim or imposing other conditions to prevent harassment, then on remand, the Commission should make that intention clear in its ruling.

Kim also asserts that remand was improper because there have been no further allegations of sexual harassment against him since February 2002, and hence, the prior remedial action taken by the District was effective. But the District’s primary remedial action was to remove Kim from the classroom in 2002, and since that time, he has had no contact with female students and only minimal contact with female staff. The fact that no further harassment complaints have been made does not mean that the problem has been fully resolved or that Kim must now be returned to the classroom without the imposition of any additional corrective measures. Given that the Commission found that the likelihood of recurrence is unclear, the trial court properly concluded that the District must be allowed to take additional remedial action, where necessary, to prevent further harassment from occurring.

The District, on the other hand, argues that dismissal was the only appropriate remedy based on the Commission’s finding that Kim was unfit for service as a teacher. According to the District, a teacher cannot be unfit to teach and allowed to teach, and thus, any finding of unfitness to teach automatically warrants dismissal. However, the California Supreme Court has held that even where the Commission finds that one of the statutorily authorized grounds for dismissal under section 44932 exists, the Commission still has the discretion to determine that dismissal is not warranted. (Fontana, supra, 45 Cal.3d at p. 222.) In this case, the Commission expressly noted in its decision that it considered the Morrison factors concerning unfitness to teach and found that dismissal of Kim was not appropriate even though cause for discipline existed. As the Supreme Court explained in Fontana, although “Section 44932 provides that a teacher cannot be dismissed unless certain grounds are found to exist[,] it does not provide that a teacher must be dismissed if one of those grounds is found.” (Id. at p. 218.) Instead, the Commission “is empowered to exercise its collective wisdom and discretion to determine that dismissal is not appropriate in a given case.” (Id. at p. 222.) Accordingly, a finding that Kim’s conduct demonstrated some unfitness for service as a teacher did not preclude the Commission from concluding that there was not sufficient unfitness to warrant dismissal. On remand, however, the Commission must give due consideration to the District’s legal duty under state and federal harassment laws in deciding on dismissal.

V. Timeliness Of The District’s Petition For Writ Of Administrative Mandate

Kim argues that the trial court erred in granting the District’s petition on the additional grounds the petition was not timely filed by the District. Government Code section 11523 sets forth the time limitations for filing a petition for writ of mandate. It provides that the petition must be filed “within 30 days after the last day on which reconsideration can be ordered.” (Gov. Code § 11523.) If, however, “the petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her.” (Ibid.) Here, the parties agree that the last day on which reconsideration could be ordered was July 24, 2005. It is also undisputed that the District requested the administrative record on July 21, 2005, received the record via overnight mail on September 13, 2005, and filed the petition 30 days later on October 13, 2005.

Kim asserts that the petition was untimely because the District acted too soon when it requested the administrative record on July 21, 2005. Under Kim’s reading of the statute, the District was required to wait until the last day on which reconsideration could be ordered before requesting the record (i.e., July 24, 2005), and was only entitled to an extension if it requested the record within the 10-day window following the expiration of the reconsideration period (i.e., July 24 to August 2, 2005). According to Kim, because the District requested the record prior to the start of this 10-day period, it was not entitled to an extension under the statute.

Kim’s contention is contrary to the plain language of Government Code section 11523. Nowhere in the statute does it state that a request for the administrative record cannot be made until after the last day on which reconsideration may be ordered. Rather, it provides that as long as the record is requested “within 10 days after the last day on which reconsideration can be ordered,” the time for filing the petition is extended until 30 days after the record’s delivery. (Gov. Code § 11523.) California courts thus have recognized that a request for the administrative record is timely under Government Code section 11523 even when it is made before the expiration of the reconsideration period. (See, e.g., Jahangiri v. Medical Bd. of California (1995) 40 Cal.App.4th 1657, 1663 [where the last day for reconsideration was December 6, 1992, the petitioner timely requested the administrative record on November 25, 1992]; Compton v. Board of Trustees (1975) 49 Cal.App.3d 150, 153-155 [where the last day for reconsideration was July 1, 1973, the petitioner timely requested the administrative record on June 12, 1973].) Here, the District made a timely request when it requested the record on July 21, 2005, three days before the expiration of the reconsideration period. The District’s deadline for filing the petition accordingly was extended until 30 days after the record’s delivery.

Alternatively, Kim argues that, even if the District was entitled to an extension, its petition was still untimely because it was not filed within 30 days of the date on which the administrative record was mailed to the District’s counsel (i.e., September 12, 2005). Instead, the District filed its petition within 30 days of the date on which the courier service delivered the record to counsel’s office (i.e., September 13, 2005). Kim contends that “delivery” of the record, within the meaning of Government Code section 11523, does not occur when the record is actually delivered, but rather when it is deposited in the mail. We disagree.

The California Supreme Court has held that the term “delivery” as used in Government Code section 11523 means “an actual delivery or a substantial equivalent thereof, what might be termed a constructive delivery.” (Hollywood Turf Club v. Daugherty (1950) 36 Cal.2d 352, 356.) A constructive delivery of the record occurs when it is reasonably possible for the petitioner to pay for the record and to receive it from the administrative agency. (Id. at pp. 355-356.) In this case, the Office of Administrative Hearings sent the record to the District’s counsel via overnight mail on September 12, 2005. As a result, the earliest date on which it was reasonably possible for the District to receive the record was the following day, September 13, 2005. That was the date of actual delivery.

This conclusion is consistent with the plain language of the statute. In construing a statutory provision, “courts must look first to the words of the statute, giving effect to their plain meaning. If those words are clear, we may not alter them to accomplish a purpose that does not appear on the face of the statute . . .” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437.) On its face, Government Code section 11523 does not require that a writ petition be filed within 30 days after either “delivery or mailing” of the record. It simply refers to “delivery.” (Gov. Code § 11523.) Moreover, when the Legislature has intended for a deadline to be triggered by either a delivery or a mailing, it has included language to that effect in the statute, as it did in a related statutory provision, Government Code section 11521. That statute provides that an administrative agency’s “power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision.” (Gov. Code § 11521 [emphasis added]; see also Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 603 [“The plain and ordinary meaning of the word ‘or’ is ‘to mark an alternative such as “either this or that”’ [Citations].”].) The Legislature’s omission of the term “mailing” from Government Code section 11523 supports the conclusion that it did not intend for “delivery” as used in that statute to be synonymous with “mailing.” (In re Khalid H. (1992) 6 Cal.App.4th 733, 736 [“When a statute omits a provision which another statute embracing a similar subject includes, a different legislative intent for each statute is indicated.”].) Because the District filed its petition for writ of mandate within 30 days of the date on which the record was delivered, the petition was timely filed.

CONCLUSION

In sum, we conclude that the trial court acted within its discretion in remanding the matter to the Commission for further proceedings consistent with its decision. On remand, the Commission must reconsider its ruling in light of the trial court’s findings that two additional charges are supported by the weight of evidence and in light of the District’s legal duty under state and federal harassment law to protect its students and staff from sexual harassment by a teacher. If the Commission decides on remand that dismissal of Kim is not warranted, it must clarify that its decision does not prohibit the District from taking appropriate corrective action to prevent further harassment by Kim.

DISPOSITION

The judgment is affirmed. The District shall recover its costs on appeal.

We concur: PERLUSS, P. J., WOODS, J.


Summaries of

Los Angeles Unified Sch. Dist. v. Commn. on Prof. Competence of Los Angeles Unified Sch. Dist.

California Court of Appeals, Second District, Seventh Division
Mar 19, 2008
No. B191321 (Cal. Ct. App. Mar. 19, 2008)
Case details for

Los Angeles Unified Sch. Dist. v. Commn. on Prof. Competence of Los Angeles Unified Sch. Dist.

Case Details

Full title:LOS ANGELES UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Mar 19, 2008

Citations

No. B191321 (Cal. Ct. App. Mar. 19, 2008)