Opinion
A154019
09-27-2018
TIMOTHY REGAN, Plaintiff and Respondent, v. EUREKA CITY SCHOOLS BOARD OF EDUCATION, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CV170100)
The local school board for the City of Eureka terminated the employment of middle school teacher Timothy Regan because he refused to perform certain tasks associated with a special education student caseload. Regan then sought review of the school board's decision in superior court by petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5. The superior court overturned the school board's decision, and the school board now appeals.
We affirm the judgment. It may very well be that the school board had legal cause to dismiss Regan. We are unable to say, however, because the school board has forfeited its appellate arguments and/or presented them in such a cursory fashion that it has failed to meet its burden on appeal of demonstrating reversible error.
BACKGROUND
In the summer of 2016, facing a critical shortage of special education teachers for the coming school year, the Eureka City Unified School District (the district) dipped into its pool of applicants for general teaching positions to find candidates suitable and willing to take on special education responsibilities. One of the candidates it interviewed and hired in this capacity was Regan, a credentialed math and chemistry teacher whom the district hired as a "temporary resource teacher" for one of its middle schools for the 2016-2017 school year. As a condition of his employment he was required to hold, among other credentials, a "short-term staff permit" as an "Education Specialist" which was a temporary permit that would enable him to teach outside of his credentialed area. His written employment contract did not define the scope of his job responsibilities.
Shortly into the start of the new school year, a dispute arose as to whether Regan's job included the requirement that he manage a caseload of special education students, including with responsibility for coordinating their individualized education plans (IEPs). Regan thought he'd been hired just to teach math to special education students, grew increasingly frustrated with what he perceived to be the district's inadequate training and support for him in the role of a case manager, asserted he was unqualified to take on the case management responsibilities, and eventually refused to serve as a special education case manager, insisting he only teach math. The district responded by suspending him without pay and initiating discharge proceedings.
The School Board's Decision
The matter proceeded to a hearing on January 13, 2017, before the Eureka City Schools Board of Education (the board), which issued an 18-page ruling with extensive factual findings. Among them, it found that Regan was hired as a resource teacher to teach special education students and, as such, Regan was responsible for both instruction and case management of students with disabilities, which included developing students' IEPs and coordinating the IEP meetings. It also found that Regan's job interview "included questions that were specifically related to a special education teaching position," although "[w]hat Regan subjectively understood upon leaving this meeting is unclear." The board found "no written record . . . memorializing" an agreement that Regan would not have to perform the case management duties that are standard duties for resource teachers. The board also found that "[i]t is undisputed that a resource teacher typically manages his own cases, that Regan was hired as a resource teacher, and that Regan was aware of this expectation no later than approximately three weeks into the school year."
The board rejected several grounds upon which the district sought to dismiss Regan, and it also ordered the district to pay him back pay through the date of the hearing, ruling that the suspension without pay had been improper. But it concluded Regan could be dismissed for persistently violating reasonable rules and regulations. We quote at some length a portion of its ruling on this issue:
"The Board finds that inherent in entering in to a contract to perform the duties of a math resource teacher is an agreement to case manage students. Regan entered into such a contract. Regan was aware of the expectations to case manage. In stating that he would not perform these duties, Regan both acknowledged the duty and refused to obey school laws and the reasonable regulations prescribed by the Board. The degree to which Regan actually followed through on his promise not to perform case management does not change that Regan's words were an act of refusal in-and-of-themselves, signaling to the District that he did not intend to perform this necessary element of his job. The District had to take Regan at his word. Rather than resigning, Regan sought the benefit of a full time position, with an extra instruction-free period and smaller class size, while not taking on the duties that he was supposed to perform during that additional free period. Regan cannot cobble together a job for himself that was not what he was hired to do. The District hired a resource math teacher because it desperately needed one who would perform all of the duties of a resource math teacher. Regan's refusal to case manage constitutes grounds for dismissal, so long as the Morrison factors also weigh in favor of dismissal." The board then weighed these factors (see Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229-230), and concluded Regan could be dismissed for "refusing to perform his assigned job as a resource teacher, which he was contractually obligated to perform." The board ordered that Regan be paid his back pay for the period of time he was on unpaid leave through the date of the hearing, and that he be dismissed from his job effective immediately.
Regan then petitioned for a writ of mandate to overturn the board's decision which the superior court granted. The court ruled Regan had been terminated improperly and was entitled to back pay for the entire school year, without reinstatement. It entered a judgment directing the board to set aside its decision to terminate Regan and to award him back pay from the date of his termination through the remainder of the 2016-2017 school year.
In an accompanying statement of decision, the court determined that "[t]he evidence does not support the Board's finding that [Regan] knew when he was hired that caseload management was a part of the job." It reasoned that Regan "testified in detail about what his understanding was going into this position" and "[t]he District did nothing to contradict his account." In addition, "the District did not attempt to rebut his testimony that Amy Brown, another special education resource teacher, told him that he would not be responsible for caseload management and that she would assume those duties. The District could easily have solicited direct testimony from Ms. Brown as to whether she made these statements. It did not do so." The court concluded that even assuming a teacher's breach of his employment contract is a basis for dismissal, the school district "failed to establish such a breach as it has not shown that caseload management was a mutually understood term of the bargain when [Regan] accepted his position. The evidence admitted at the hearing suggests otherwise." The court also concluded that "the District failed to provide [Regan] with adequate assistance to perform the duties related to caseload management," although it did not articulate the legal significance of that conclusion.
This timely appeal followed.
DISCUSSION
In its opening brief, the board does not assert the superior court misapplied the law, but merely challenges the factual basis for the superior court's decision. Its challenges to the sufficiency of the evidence have been forfeited, however.
The board's discussion of the applicable standard of review is somewhat difficult to follow, but the board appears to assert that the trial court was required to exercise its independent judgment to determine if the board's findings were "not supported by the weight of the evidence" (Code Civ. Proc., § 1094.5, subd. (c)), and that we review the superior court's decision in this regard for substantial evidence. Although the board also asserts that de novo review is warranted to decide if an agency's choice of penalty was an abuse of discretion, it has not explained in what respect that standard of review is implicated. Accordingly, we will review the superior court's decision under the substantial evidence standard. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 [even where the trial court is required to review administrative decision under independent judgment standard of review, standard of review on appeal is substantial evidence test].)
The first reason is because the board's opening brief does not fairly summarize the evidence introduced at the administrative hearing. Its brief contains a one-sided recitation of the evidence favoring its own position, ignoring all of Regan's testimony and evidence other than in one limited respect. To cite just some examples (and by no means all), it omits the evidence that there was no mention of any case management duties or IEP responsibilities in the job listing Regan applied for. It fails to describe Regan's testimony that in his job interview, "[t]here was no mention whatsoever about anything to do with caseloads, IEPs, or anything." And it omits his testimony that when he initially started the job at the beginning of the school year, he had no case management load and no responsibilities for preparing IEPs. He testified it wasn't until three weeks into his job, in mid-September, that he was assigned a caseload to manage which "was news to me." An appellant who challenges the sufficiency of the evidence must set forth " 'all material evidence on the point . . . and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact.' " (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317; see also, e.g., North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 677.) "It is not the court's duty to attempt to resurrect an appellant's case or comb through the record" to ascertain independently if the trial court erred. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10.)
At page 14, the board acknowledges in its statement of facts that Regan testified that another teacher at the school told him he would not be responsible for case management duties.
The board's opening brief also contains no legal authority or analysis concerning the substantive principles governing the school district's authority to terminate a teacher. Without a discussion of the applicable law, it is impossible to evaluate the sufficiency of the evidence. " 'We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' " (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956.)
Even if we were to consider the board's arguments on their merits, we would reject them because the board has not met its burden as the appellant to persuade us of any error. " 'A judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The superior court ruled in Regan's favor because it concluded the board did not "show[] that caseload management was a mutually understood term of the bargain when [Regan] accepted his position." (Italics added.) The board acknowledges this ruling, and asserts the trial court "improperly substituted its discretion" for that of the board. But the only evidence it discusses relates to what the school district officials expected the position to entail at the time of hiring, and/or what Regan later came to understand was expected of him. The opening brief does not discuss any evidence that Regan was told or knew when he accepted his position that caseload management was part of the job. To be clear, there appears to be no dispute Regan knew he was being hired into a special education position, responsible for teaching students with disabilities; but the relevant legal issue for purposes here is the scope of his special education job responsibilities. The board's opening brief does not demonstrate the superior court erred in ruling he could not be dismissed for refusing to perform tasks he had not been informed at the beginning were part of that role.
Even then, however, several of the board's arguments are not based on the evidence, but on the board's factual findings.
The board also challenges the superior court's finding that Regan did not receive adequate mentoring, contending the superior court "ignored significant evidence" on this score. Even if we were to assume the superior court's factual finding is erroneous, the board does not explain the legal significance of this claimed error. It has thus failed to demonstrate that the error, if any, warrants reversal.
Finally, the board makes a number of new arguments in its reply brief that go well beyond the sufficiency of the evidence questions framed in the opening brief. We decline to address them because they too have been forfeited. " 'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citations.]' [Citation.] ' "[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." ' " (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477-1478; accord, Hurley v. California Department of Parks & Recreation (2018) 20 Cal.App.5th 634, 648, fn. 10.) The board has not shown good cause.
DISPOSITION
The judgment is affirmed. Respondent shall recover his appellate costs.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.