Judge Curtis A. Kin, Case Number: 23STCP04494, Date: 2024-09-10 Tentative Ruling

Petitioner Alfred Madain petitions for a writ of mandate directing respondent Pasadena Unified School District to reinstate his employment as teacher with back pay and interest.

Petitioner Madain has been, at all relevant times, a permanent certificated teacher employed by respondent Pasadena Unified School District (“District”). (Madain Decl. ¶ 2; Answer ¶¶ 5, 7.) He has been represented throughout his employment by the United Teachers of Pasadena (“Union”), a labor organization which serves as the exclusive representative of all certificated employees within the District, including Madain. (Perez Decl. ¶¶ 3, 4.)

In 2021 or 2022, petitioner was placed on paid administrative leave so the District could investigate certain allegations of misconduct involving petitioner’s laptop and the students in his class. (Perez Decl. ¶ 2; Canal Decl. ¶ 2.) The Union provided representation to petitioner by appointing attorney Carlos R. Perez to the case through the Union’s Group Legal Services program. (Perez Decl. ¶ 4.) The District delayed its investigation pending the negotiation of a possible resolution and formal separation between the parties; however, the terms of that separation agreement were never finalized. (Perez Decl. ¶ 5; Canal Decl. ¶ 2.)

While petitioner continued to be at home on paid administrative leave, in the spring of 2023, the District became aware of another incident involving petitioner. (Canal Decl. ¶ 2.) On May 22, 2023, Dr. Sergio Canal, Chief Human Resource Officer of the District, directed petitioner to come to Human Resources to be questioned by him on May 24, 2023. Petitioner was initially contacted via telephone call by Dr. Canal’s assistant but was later sent a formal letter, dated May 22, 2023, directing him to come on May 24, 2023. (Canal Decl. ¶ 3 & Ex. A.) Perez was also informed of Dr. Canal’s order to petitioner. (Perez Decl. ¶ 6; Marderosian Decl. ¶ 4 & Ex. B.) When Perez inquired as to the nature of the specific allegations, the District’s counsel, Jeff C. Marderosian, declined to elaborate, stating, “The District is entitled to question an employee without having to lay out the allegations a head [sic] of time.” (Perez Decl. ¶ 6 & Ex. 1 at 3.)

Perez replied to Marderosian’s response in an email, dated May 23, 2023, stating:

Actually, no, that is not correct. See the Contra Costa PERB [Public Employment Relations Board] case. Please be advised that I am not available tomorrow so first, I would like to know what the meeting is about, and second, once I have that information, we can schedule a mutually convenient time to meet.

(Perez Decl. ¶ 6 & Ex. 1 at 2.) On that same day, Perez also responded by letter to Marderosian, which stated the following:

In order to effectively represent a bargaining unit member, it is imperative that Mr. Madain and his representative have some basic information about the nature of your interview. In Contra Costa Community College District (2019) PERB Decision No. 2652E, PERB found that a union has a right to reasonable notice of the alleged wrongdoing before an investigatory interview. There, PERB specifically held that an employee must provide reasonable notice of the alleged misconduct. This notice must be timely and must include sufficient information about the alleged wrongdoing “to enable a union representative to represent an employee in a meaningful manner during the interview.”

Marderosian expressed disagreement over the applicability of the Contra Costa PERB decision to the situation, contending that the decision related to a union’s right to necessary and relevant information in accordance with the Educational Employment Relations Act (“EERA”).[1] (Perez Decl. ¶ 6 & Ex. 1 at 1.) Marderosian also indicated the District’s willingness to reschedule the meeting. (Perez Decl. ¶ 6 & Ex. 1 at 1.)

Marderosian also responded by letter, dated May 26, 2023, disputing any obligation by the District to provide information to Perez and Madain in advance of the investigatory meeting and stating the consequences of refusal to submit to questioning as follows:

As I said in my May 23 email, the District has received no union request for information under the EERA. Indeed, Mr. Madain’s union is not representing him in this matter. Accordingly, your client's refusal to meet without the information requested has no legal merit. Should Mr. Madain fail to submit to an interview with Dr. Canal, he will be considered as having taken an unauthorized leave of absence and his pay will be docked effective May 24, 2023.

Once again, please provide the District with your availability and your client’s unconditional willingness to meet.

When Perez refused to coordinate a date for the interview, and petitioner failed to come to work to submit to the questioning, the District treated petitioner as being on an unauthorized leave of absence and ceased paying him any salary from June 1, 2023 onward. (Canal Decl. ¶ 6; Perez Supp. Decl. ¶ 3 & Exs. 1 & 2.) On July 1, 2023, Perez questioned why his client was unpaid from June 1 to June 20. (Marderosian Decl. ¶ 7 & Ex. E.) Marderosian responded on July 6, 2023, referencing and attaching the May 22, 2023 letter directing petitioner to come to Human Resources on May 24, 2023, as well as Marderosian’s May 26, 2023 letter discussed above. (Marderosian Decl. ¶ 7 & Ex. E.)

On August 29, 2023, Perez sent Marderosian a letter, stating: “[Y]ou should note that I am functioning as an agent for the [Union], and essentially function as Mr. Madain’s union representative for any such meetings.” (Perez Decl. ¶ 6 & Ex. 4.) Perez further indicated his concern that, “apparently in retaliation for requesting information about such a meeting ahead of time, the District ha[d] abruptly terminated Mr. Madain’s pay and benefits indefinitely.” (Perez Decl. ¶ 6 & Ex. 4.) Perez finally noted that it was unlawful to do so “without board action, without the service of the statement of charges, without the opportunity for a Skelly meeting or any opportunity to a Stull hearing pursuant to Education Code Section 44944.” (Perez Decl. ¶ 6 & Ex. 4.) Perez demanded that petitioner’s “pay and benefits” be restored. (Perez Decl. ¶ 6 & Ex. 4.)

By letter dated September 5, 2023, Marderosian responded by reiterating the District’s position. (Marderosian Decl. ¶ 8 & Ex. G.) Subsequent communication from Perez questioned whether petitioner had been placed “on unpaid leave indefinitely, and that his pay and benefits have been discontinued.” (Marderosian Decl. ¶ 9 & Ex. H at 2.) Marderosian responded on September 5, 2023, urging counsel to cause petitioner to submit to the requested questioning, explaining: “As soon as he submits to the exam, he will be placed in a paid status pending any disciplinary action that the District may take.” (Marderosian Decl. ¶ 9 & Ex. H at 1.) On September 7, 2023, Marderosian advised Perez that petitioner’s benefits had not been affected, stating: “I am not in the office, but the District has confirmed that his benefits have not been affected. (Marderosian Decl. ¶ 9 & Ex. H at 1.) Petitioner's health insurance benefits have remained undisturbed. (Canal Decl. ¶ 8.)

In late November 2023, petitioner's union sought to litigate the PERB issue advanced by petitioner’s counsel by filing an unfair labor practice charge against the District with PERB arguing that Perez had union rights. (Marderosian Decl. ¶ 10.) PERB has yet to act on the charge due to six-month period of abeyance that was agreed upon by the parties in that matter, but which has now expired. (Marderosian Decl. ¶ 10.)

Petitioner continues to refuse to come to work to submit to the requested questioning. (Canal Decl. ¶¶ 7, 12.)

On December 13, 2023, petitioner filed a Verified Petition for Writ of Mandate. On February 2, 2024, respondent filed an Answer. On June 21, 2024, petitioner filed an opening brief. On August 9, 2024, respondent filed an opposition. On August 26, 2024, petitioner filed a reply.

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency's action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law. And, where the case involves the interpretation of a statute or ordinance, our review of the trial court's decision is de novo.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “An administrative agency's interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Petitioner’s evidentiary objections to the declarations of Dr. Sergio Canal and Jeff C. Marderosian are OVERRULED.

Petitioner’s request to take judicial notice of the Unfair Practice Charge filed with the Public Employment Relations Board is GRANTED. (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 950, fn. 6 [records of state administrative agencies proper under Evidence Code § 452(c)].) Respondent’s objection to the request for judicial notice is OVERRULED.

Petitioner contends that, by withholding his salary for refusing to report to work and answer questions, the District has “effectively terminat[ed] him without providing him the mandatory due process to which he is entitled under Education Code Section 44932, et seq.” (Opening Br. at 1.)

“A permanent employee, such as a certificated tenured teacher, has a vested right to her position and may not be deprived of it without due process of law.” (Raven v. Oakland Unified School Dist. (1989) 213 Cal.App.3d 1347, 1357.) Permanent employees shall not be dismissed except for one or more of 11 enumerated causes, including immoral conduct, unprofessional conduct, or dishonesty. (Ed. Code § 44932(a)(1-11).)[2] Upon the preparation of a written statement of charges, specifying the acts or omissions constituting the charge so the employee can prepare a defense, the governing board of a school district, upon majority vote, may give notice to the permanent employee of dismissal unless the employee requests a hearing. (§ 44934(b), (c).)

If the employee requests a hearing, the hearing shall be conducted by a three-person Commission on Professional Competence, comprised of one member selected by the employee, one member selected by the governing board of the school district, and an administrative law judge of the Office of Administrative Hearings. (§ 44944(c)(1), (c)(2).) The first two members shall not be related to the employee or an employee of the school district initiating the dismissal. (§ 44944(c)(5)(A).) Each member is required to hold a currently valid credential and have at least three years’ experience within the past 10 years in the discipline of the employee. (§ 44944(c)(5)(A).) The employee also has the right of initial disclosure of relevant witnesses and documents, the opportunity to depose witnesses, and the opportunity to obtain an administrative order compelling disclosure. (§ 44944.05(b)(1)(A)(i-ii), (c), (d).)

The central issue here is whether, by placing petitioner on unpaid administrative leave, the District effectively “dismissed” petitioner without complying with the due process protections under the Education Code. The Court finds that the answer is no.

“Dismissal” means a “release or discharge from employment.” (“Dismissal,” Black's Law Dictionary (12th ed. 2024); see also “discharge,” defined in Black's Law Dictionary as “firing of an employee].) Here, petitioner has not been released, discharged, or fired from his employment at the District. Petitioner is still receiving medical insurance from the District. (Canal Decl. ¶ 8.) Thus, while petitioner may not be receiving his salary while he declines to report to work as directed, the District has continued to treat him as an employee who continues to receive health benefits. Indeed, the District has made clear that petitioner would begin receiving pay after reporting to work to interview with Human Resources. (Canal Decl. ¶ 8.) Instead, by refusing to report as directed, petitioner is on an unauthorized leave of absence, with a corresponding reduction in pay from having worked “less than a full school year” per the terms of section 45041.[3]

Petitioner does not cite any authority indicating that deeming him on unauthorized leave for declining to report as directed amounts to a discharge or dismissal simply because he is not paid salary for the period while on unauthorized leave. The cases petitioner cites are inapposite. For example, in DeYoung v. Commission on Professional Competence etc. (2014) 228 Cal.App.4th 568, the governing board of the school district voted to dismiss the teacher without filing or preparing written charges, an error which the Court of Appeal found to be nonprejudicial. (DeYoung, 228 Cal.App.4th at 571, 573.) Here, no formal action to actually dismiss petitioner has taken place. Similarly, in Forker v. Board of Trustees (1984) 160 Cal.App.3d 13, a school librarian was first laid off and then informed that she would not be rehired because she was incompetent. (Forker, 160 Cal.App.3d at 17.) The Court of Appeal found that the librarian retained reemployment rights under section 44956 after having been laid off and was entitled to an evidentiary hearing before she could be dismissed for incompetence. (Id. at 19.) Here, the District has not attempted to terminate petitioner’s employment.

As for Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, it is true that there are mandatory preremoval safeguards for a permanent civil service employee, which include “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly, 15 Cal.3d at 215.) Here, however, the District has not sought to remove petitioner from employment. Rather, the District has declined to pay petitioner while he chooses not to report as directed.

Because the actions of the District are not tantamount to a dismissal or effective termination of his employment, petitioner fails to show how he is entitled to the due process protections against dismissal set forth in the Education Code.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent Pasadena Unified School District shall prepare, serve, and ultimately file a proposed judgment.

[1] “The EERA establishes a system of collective bargaining for employees of public school districts educating students” from kindergarten through high school. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 855.) The EERA is codified in Government Code § 3540, et seq. PERB has exclusive jurisdiction over disputes involving the statutory duties and rights of public employees under the EERA. (Ibid., citing Gov. Code § 3541.3.)

[2] All statutory references are to the Education Code unless otherwise specified.

[3] Section 45041 states, in relevant part: “A person in a position requiring certification qualifications who serves less than a full school year shall receive as salary only an amount that bears the same ratio to the established annual salary for the position as the number of working days he serves bears to the total number of working days plus institutes in the annual school term, and any other day when the employee is required by the governing board to be present at the schools of the district.”