Ruben Gonzalez v. Board of Trustees

of the Cerritos Community College

District and Cerritos Community

College District, 22STCP03807

Tentative decision on (1) Gonzalez’s petition for administrative mandamus: denied; (2) District’s petition for administrative mandamus: denied

 

Petitioner Ruben Gonzalez (“Gonzalez”) seeks administrative mandamus to vacate the decision by the Board of Trustees (“Board”) of the Cerritos Community College District (“District”) to dismiss him from his employment.  The District separately petitions concerning the exclusion of witness testimony by the administrative law judge (“ALJ”) and her finding that the District failed to prove dishonesty.

            The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

 

            A. Statement of the Case

1. Gonzalez’s Petition (22STCP03807)

On October 19, 2022, Petitioner Gonzalez filed the Petition against the Board and District alleging a claim for administrative mandamus.  The operative pleading is the First Amended Petition (“FAP”), filed on November 11, 2022 and adding Real Party-in-Interest Office of Administrative Hearings (“OAH”).  The FAP alleges in pertinent part as follows.

On January 20, 2021, the Board voted to terminate Gonzalez under Education Code section 87732 for: (1) immoral conduct within the meaning of Code section 87332(a); (2) dishonesty within the meaning of Education Code section 87332(b); and (3) evident unfitness for service within the meaning of Education Code section 87732(d).  In the amended charges, the Board added a charge for persistent violation or refusal to obey the school laws within the meaning of Education Code section 87332(f).  

The accusation filed against Gonzalez consisted of vague and false allegations which were time barred by the four-year time limit of Education Code Section 87680.  The ALJ improperly heard and considered time-barred charges.  Although the ALJ properly struck or barred evidence regarding most of the time-barred charges, they improperly impacted the formal decision.

In violation of Education Code section 87031(b)(1), the charges also included material that was not in Gonzalez's personnel file and to which Gonzalez had not been given an opportunity to provide a written response.  Such evidence should not have been admitted.

The administrative hearing was held on September 27-October 1, October 4-5, November 30-December 1, 2021, and January 18-19, 2022.  The ALJ issued her decision on August 22, 2022, sustaining the District's decision to terminate Gonzalez.  

The ALJ made numerous erroneous evidentiary rulings, including admission of inadmissible evidence, preventing Gonzalez from presenting certain witnesses and evidence and/or limiting his witness examination, which prejudiced him.

The ALJ also made improper credibility determinations as to numerous witnesses, including without complying with the requirements of Government Code section 11425.50(b). 

Finally, the ALJ relied on testimony and evidence, including unsubstantiated hearsay, which was not reliable under Government Code section 11513. 

The decision is not supported by the findings as the findings are not supported by the weight of the evidence. 

The Board’s attorney informed Gonzalez by letter dated on or about September 21, 2022, that, pursuant to Education Code section 87680, the Decision affirming the Board's termination is binding and all administrative appeals had been exhausted.  The Board’s automatic adoption of the ALJ's decision is reviewable pursuant to Education Code section 87682 and Government Code section 11523 through administrative mandamus.

 

2. The District’s Petition (22STCP03841)

On October 24, 2022, the District filed a Petition against Respondent OAH with Gonzalez as Real Party-in-Interest.  The Petition alleges in pertinent part as follows.

On or about January 20, 2021, the Board reviewed the statement of written charges and determined that it would dismiss Gonzalez from employment.  The Board’s decision to dismiss Gonzalez was based on allegations of: (1) immoral conduct within the meaning of Education Code section 87732, subdivision (a); (2) dishonesty within the meaning of Education Code section 87732, subdivision (b); and (3) evident unfitness for service within the meaning of Education Code section 87732, subdivision (d).

On January 21, 2021, Gonzalez was served with the District’s Notice and Statement of Decision to Dismiss (“Notice”), attaching a Notice of Immediate Unpaid Suspension and Intention to Dismiss, Statement of Written Charges, and Gonzalez’s most recent performance evaluation.  Pursuant to Education Code section 87669, the decision to dismiss Gonzalez was imposed immediately.  On February 18, 2021, Gonzalez filed an objection to the Board’s Notice and requested a hearing.

On October 5, 2021, the Statement of Written Charges was amended to include additional allegations of events and alleged persistent violation or refusal to obey the school laws or reasonable regulations within the meaning of Education Code section 87732(f). 

At the outset of the hearing, pursuant to Education Code section 87680, Gonzalez moved to exclude any evidence related to allegations of misconduct occurring more than four years prior to the date of the filing of the notice.  The District asserted that Education Code section 87680’s four-year time limit is subject to the doctrine of equitable estoppel.

On August 22, 2022, the ALJ issued a written decision correctly upholding the decision to dismiss Gonzalez from employment.  However, the decision included the following erroneous rulings and findings: 

a) “[T]he District failed to meet its burden of establishing equitable estoppel for tolling the statute of limitations for the majority of their allegations”;

b) “Evidence related to reports made to Cerritos College administrators falling outside Code section 87680’s four-year limit is excluded. [Gonzalez], however, is estopped from asserting the four-year limit on evidence of misconduct observed by C.R. after her report to Dean Smith”;

c) “The District failed to establish cause exists to dismiss [Gonzalez] on the basis of dishonesty”.

            The ALJ’s decision did not properly apply Atwater Elementary School Dist. v. California Dept. of General Services, (“Atwater”) (2007) 41 Cal.4th 227 when analyzing Gonzalez’s concealment of misconduct thereby triggering equitable tolling of the statutory timeframe set forth in Education Code section 87680 and improperly sustained general objections to routine discovery and deposition testimony to exclude evidence of Petitioner’s dishonesty. 

            The District prays that the court issue a writ of mandate directing OAH that the portion of the ALJ’s decision excluding testimony of witnesses AW, LS 1, LS 2, MT, and CR is not supported by law and should be set aside and the evidence admitted and to find that Gonzalez committed dishonesty and persistent refusal to obey the school laws or reasonable regulations as additional grounds for his dismissal. 

 

3. Course of Proceedings

On October 19, 2022, Gonzalez filed his Petition (22STCP03807).

On October 24, 2022, District filed its Petition (22STCP03841).

On November 8, 2022, the court found that 22STCP03807 and 22STCP03841 to be related within the meaning of CRC 3.300(a).

On November 11, 2022, Gonzalez filed his FAP.

Proofs of service on file show that Gonzalez served Respondent Office of Administrative Hearings (“OAH”) on October 25, 2022, and Real Party Board on November 4, 2022. 

On January 20, 2023, Real Party Board filed its Answer.

On January 24, 2023, Gonzalez filed his Answer to the District’s Petition (22STCP03841).

On March 9, 2023, the court consolidated the related cases and designated 22STCP03807 as the lead case.

 

B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies.  Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. 

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts.  Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811.  In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143.  See CCP §1094.5(c).  Education Code section 87682 expressly requires the trial court’s independent review of an administrative mandamus petition by either the governing board or the employee. 

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.”  Bixby, supra, 4 Cal.3d at 143.  The court must draw its own reasonable inferences from the evidence and make its own credibility determinations.  Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868.  In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses.  Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  Fukuda, supra, 20 Cal.4th at 817.  Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the court should not interfere with the agency’s discretion or substitute its wisdom for that of the agency.  Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on the evidence presented at the hearing.  Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.  The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision.  Topanga, supra, 11 Cal.3d at 514-15.  Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.  Topanga, 11 Cal.3d at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof.  Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137.  “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.  Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

 

            C. Governing Law[1]

            In a permanent employee dismissal, the District must establish (1) that the individual charge is sustained by a preponderance of the evidence, (2) that if the charge is sustained, it related to a specific cause as set forth under section 44932 or 44939, and (3) after determining the charges and causes proved, whether it renders the teacher “unfit to teach” so as to merit dismissal.  California Teachers’ Assn. v. State of California, (1999) 20 Cal.4th 327; Morrison v. State Board of Education, (“Morrison”) (1969) 1 Cal.3d 214, 220.

 

1. Section 87732

No regular or academic employee shall be dismissed except for, inter alia: immoral or unprofessional conduct, dishonesty, unsatisfactory performance, evident unfitness for service, and persistent violation of or refusal to obey rules.  §87732(a), (b), (c), (d), (f).

 

a. Immoral Conduct

A regular or academic employee can be dismissed for “immoral conduct.”  §87732(a).  The courts have developed a broad and well-understood definition of immoral conduct in teacher dismissal cases: “[...] that which is hostile to the welfare of the general public and contrary to good morals.  Immorality has not been confined to sexual matters, but included conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and public welfare.”  Palo Verde Unified School Dist. v. Hensey, (“Palo Verde”) (1970) 9 Cal.App.3d 967, 971-72 (quoting Board of Education of San Francisco Unified School Dist. v. Weiland, (“Weiland”) (1960) 179 Cal.App.2d 808).  Based on this definition, a teacher’s falsification of attendance records to add names of three students to secure continued employment was deemed immoral conduct and dishonesty. Weiland, supra, 179 Cal.App.2d at 808.  Similarly, a teacher’s removal of school property (a public address system speaker) from the classroom wall was deemed immoral.  Palo Verde, supra, 9 Cal.App.3d at 967.

 

            b. Dishonesty

            A regular or academic employee may be dismissed for dishonesty under section 87732(b).

Dishonesty indicates a “lack of honesty or integrity;” a “disposition to defraud or deceive.” (https://www.merriam-webster.com/dictionary/) “Dishonesty necessarily includes the element of bad faith.” Small v. Smith, (1971) 16 Cal.App.3d 450, 456.) “[I]t means fraud, deception, betrayal, faithlessness; an absence of integrity; a disposition to cheat, deceive or defraud; deceive and betray.”  Ibid. “Dishonest conduct may range from the smallest fib to the most flagrant lie. Not every impropriety will constitute immoral or unprofessional conduct, and not every falsehood will constitute ‘dishonesty’ as a ground for discipline.” Fontana Unified School Dist. v. Burman, (1998) 45 Cal.3d 208, 220, n. 12.

 

            c. Evident Unfitness for Service

 Evident unfitness for service in section 87732(d) means “clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’”  Woodland Joint Unified School District v. Comm’n on Prof. Comp., (“Woodland”) (1992) 2 Cal.App.4th 1429, 1444.  Conduct constituting evident unfitness for service will often constitute unprofessional conduct.  Id. at 1445.  For a school district to meet this charge, it must demonstrate satisfaction of the Morrison factors (see post) and take the additional step of showing that the unfitness is “evident,” meaning that the offensive conduct is caused by a defect in temperament.  Ibid.

“[T]he term ‘evident unfitness for service’ should not be given a definite technical meaning and that a court should not arbitrarily find that it is subsumed under some set formula . . .  In applying the standard due consideration must be given to the circumstances of the case at hand.”  Oakland Unified School Dist. v. Olicker, (1972) 25 Cal. App. 3d 1098, 1108 (citations omitted).  Before an inference can be drawn that conduct renders a teacher evidently unfit to teach, it is necessary to show “a relationship between that conduct and the functioning of defendant as a teacher.” Id. at 1109.

 

2. Unfit to Teach

A finding of misconduct is not alone enough to dismiss.  Instead, that misconduct must render the teacher unfit to teach.  San Dieguito Union High School, (“San Dieguito”) (1982) 135 Cal.App.3d 278, 288.  The conclusion of unfitness must be based upon an objective standard as articulated in Morrison, supra, 1 Cal.3d at 220.  See San Dieguito, supra, 135 Cal.App.3d at 288.

In Morrison, supra, 1 Cal.3d at 214, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher.  Those factors are: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Id. at 229-30.  Not every Morrison factor must be considered; a trier of fact may consider all of the factors that are relevant to the respective case.  Ibid.; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766, 1777.

3. Persistent Violation of Rules

Pursuant to section 87732(f), a regular or academic employee is subject to dismissal for “[p]ersistent violation of, or refusal to obey, the school laws of the state or reasonable regulations prescribed for the government of the community colleges by the board of governors or the governing board of the community college district employing him or her.”  The violation must be persistent or “motivated by an attitude of continuous subordination.”  Governing Board of the Oakdale Union School District v. Seaman, (1972) 28 Cal.App.3d 77, 81-82.  Cause for discipline may be based on the violation of school rules, including those requiring the timely submission of lesson plans and policies against excessive absenteeism.  San Dieguito, supra, 174 Cal.App.3d at 1180-81.

 

4. Hearing Procedure

The governing board of the community college district determines whether to dismiss an employee. §87669.  The written statement of dismissal shall be in writing and served on the employee personally.  §87672.  If the employee demands a hearing within 30 days, the matter shall proceed to arbitration or hearing as specified in Article 4 (§§ 87669-678).  The matter shall be referred to an arbitrator, but if the parties do not agree on an arbitrator, it shall be certified to OAH for appointment of an ALJ.  §87678. 

The ALJ shall conduct proceedings in accordance with Government Code Chapter 5, commencing with section 11500, except with the broader discovery rights of a civil action in superior court.  §87679.  The written notice delivered to the employee pursuant to section 87672 shall be deemed an accusation.  §87679.

The ALJ shall determine whether there is cause to dismiss or penalize the employee.  No decision of dismissal or suspension shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.  §87680.

The decision of the arbitrator or ALJ may, on petition of either the governing board or the employee, be reviewed by a court of competent jurisdiction in the same manner as a decision made by a hearing officer under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.  The court, on review, shall exercise its independent judgment on the evidence.  §44945.

 

D. Statement of Facts

1. Background

            On January 21, 2021, the District served Gonzalez with a Notice and Statement of Decision to Dismiss. The operative Second Amended Statement of Charges was based on four grounds under section 87732: (1) immoral or unprofessional conduct; (2) dishonesty; (3) evident unfitness for service; and (4) persistent violation of school laws or Board regulations.  AR 1503-35.

 

            2. The Administrative Hearing

The administrative hearing was conducted virtually over 11 days. Numerous witnesses testified.  The ALJ admitted some testimony but excluded other testimony as untimely under section 87680.

 

3. The Admitted Testimony

            a. AZ

            AZ attended Cerritos College from July 2017 until January 2020.   AR 2413.  She was a member of the women’s soccer team as a captain in 2017 and 2019 but not 2018 because she tore her ACL.  AR 2413.  Gonzalez was the head coach.  AR 2414.  When AZ first joined the team, Gonzalez had a conversation with her about her boyfriend, stating that stating it was not possible to stay faithful in a marriage.  AR 2415.  Gonzalez explained that he cheated on his wife.  AR 2415.

In the Summer of 2019, there was a District investigation regarding a player who was alleged to be partying and having sexual relationships with coaching staff during a yearly team trip in 2018.  AR 2418.  During a team practice, one of the players mentioned she got a call from an investigator, and Gonzalez became angry and defensive, raising his voice and asked who else received a call from a District investigator.  AR 2419-20.  Gonzalez then ordered: “Nobody from here on out is to speak to any investigator.”  AR 2420.  The team was definitely concerned.  AR 2420. 

Gonzalez pulled AZ and the other team captain aside, telling them, “There’s no proof.  Do they have photos? What do they want me to do, fire my own brother?” Gonzalez also blamed the female students, stating that the players should not have been in the room where the coaches were drinking.  AR 2421.  AZ then witnessed Gonzalez interrogating each player individually as to where the investigation came from.  AR 2422-23.   

By his response, it was clear that there would be consequences, such as to playing time, if a player did not do what the coaches wanted.  AR 2421.  Gonzalez ordered AZ and her fellow captain not to mention the investigation or any sexual harassment allegations to any new players on the team and, if they heard new players talking about it, they were to “shut it down immediately.”  AR 2424. 

Gonzalez and Assistant Coach Brent Whitfield (“Whitfield”) were the two main coaches.  AR 2426.  They worked side-by-side together, according to Gonzalez, for “almost ten years”.  AR 2426.  AZ and her teammate felt uncomfortable with Coach Whitfield, who added players as friends on social media, drank shots with players, made inappropriate comments, and threatened to cut playing time when rejected.  AR 2425-26, 2431, 2433-34.  

On a soccer trip across the country to play the number one soccer team in their division during the summer of 2019, AZ received inappropriate texts from Whitfield after he attempted to have her drink alcohol with him.  AR 2434-36.  The messages reflected that he was drinking and that boundaries were being crossed.  AR 2435.  AZ became fearful to say anything around Coach Whitfield because he made fun of her stuttering.  AR 2442.  AZ felt she could not report inappropriate behavior to Gonzalez based on his prior response to an investigation.  AR 2437. 

            AZ described the team environment as “toxic,” with coaches demeaning players, mocking their weight, and using fitness as punishment.  AR 2442-43.  Other teammates felt the same.  AR 2445.  AZ and her teammates did not report anything because they were fearful that the coaches would retaliate and diminish their opportunity to transfer to a four-year college.  AR 2445. 

            AZ reported to the Title IX office, including Title IX Coordinator Valyncia Raphael-Woodward (“Raphael”).  AR 2446.  She said she wanted to stay anonymous, but Raphael said she could not guarantee anonymity.  AR 2446.  She spoke to the other Title IX officer, who said she should try to get others to report with her.  AR 2447.  AZ left upset because she felt Title IX was where she was supposed to go.  AR 2447.

The thought came to her that she could report to Athletic Director Maria Castro (“Castro”).   AR 2447.  She obtained Castro’s guaranty of anonymity, and she spoke to Castro about the inappropriate and toxic behavior on the team.  AR 2447-48.  On October 10, 2021, Castro had a meeting with the team about the allegations being investigated.  AR 2452.  

Following this meeting, a teammate MC screamed at and accused AZ of reporting to Castro and threated to beat her up, screaming: “I know it was you who fucking told Maria and I will beat your fucking ass,” while other teammates held her back.  AR 2454.  Under her breach MC added “stupid fucking bitch.”  AR 2454.  The confrontation lasted 30 seconds.  AR 2492.  The whole team, probably 16-20 players, was present.  AR 2493.  Everyone was quiet and no one knew what to say.  AR 2493.  Then other players were shouting to calm MC down and holding her back.  AR 2495.  AZ was so shocked by the encounter that she started laughing because she did not know how to respond.  AR 2495. 

Gonzalez was 10-15 feet away when MC started yelling.  AR 2453.  He was two to three feet away when he opened the gate.  AR 2454.  He did nothing to stop the attacking MC or correct what she said.  AR 2454.  It was clear he knew what was going on.  AR 2497.

After the confrontation, AZ went straight to Castro’s’ office.  AR 2497.  She made no effort to talk to Gonzalez.  AR 2497-98.  She told Castro exactly what happened, including that Gonzalez had opened the gate instead of protecting her.  AR 2456.  AZ was informed that Coach Whitfield would be suspended.  AR 2498-99. 

AZ felt she had no option but to withdraw from the soccer team.  Had she continued, the coaches and other players would have made her life difficult and uncomfortable.  AR 2456-57. 

            AZ recalled seeing social media posts from former Cerritos College soccer player Ashley Webb in 2020 about inappropriate text messages and players being treated like dogs, which was consistent with her experience on the team.  AR 2459.    

 

            b. AJ

            AJ participated in the women’s soccer program in 2018 and 2019.  AR 3109.  Gonzalez was the coach.  AR 3109.

AJ went on a road trip to Seattle in September with the team where the coaches were intoxicated, and Gonzalez was present.  AR 3110, 3123.  AJ was accosted by Coach Whitfield who put his hand on her leg under a table while they were drinking.  AR 3110.  This made her uncomfortable, but she did not report it because she had heard that nothing would happen and she would be retaliated against, such as loss of playing time.  AR 3111-12.  AJ did not know if Gonzalez was aware of the incident.  AR 3128.  While her dad was going to report the incident to Gonzalez, he never did because AJ suffered a head injury and stopped playing.  AR 3130.  

            AJ was aware of an app accusing a player of sleeping with one of the coaches.  AR 3114.  That player’s mother spoke to Gonzalez, who told the players they needed to own up to sending the app.  AR 3114.  If not, the police would be called, and there would be an investigation.  AR 3115.  After they, they asked for the players phones to see if they had downloaded the app.  AR 3115. Gonzalez talked to the team at a team practice and told them that the allegations were false.  AR 3118.

Assistant Coach Ana Ramirez (“Ramirez”) flirted with players during practice.  AR 3119.   Gonzalez was around but did not think anything of it.  AR 3119.

            Gonzalez never discouraged her from reporting or threatened loss of playing time.  AR 3134.

           

c. CR

            CR attended Cerritos College from 2013 to 2015 where she played on the soccer team.  AR 2328.  Gonzalez was the head coach.  AR 2335.  She played soccer for Gonzales in high school in 2012.  AR 2329.

During a December 2013 soccer trip to San Francisco, CR and her friend AJ went to the coaches’ room.  AR 2335.  When they entered, CR saw Coach Diego Millan (“Millan”) stroking the upper thigh area of one of her teammates (Lily).  AR 2335.  AJ also witnessed Millan’s behavior.  AR 2335.  When AJ exited the room, she informed CR that another teammate, Clare Gomez, just had a threesome with Assistant Coach Memo Gonzalez (“Memo”) and Coach Whitfield.  AR 2336.  CR felt this behavior was wrong and that she should say something to a higher authority, but not Gonzalez because Coach Memo was his brother.  AR 2336-37.  Through observation, it was obvious to CR that Gonzalez knew what was going on.  AR 2337.

            CR was deeply disturbed and reported to the Athletic Dean Dan Smith (“Smith”) what she observed and heard upon her return from the trip.  AR 2338-39; AR 2359.  When she got to practice three minutes after she left Dean Smith’s office, Gonzalez knew that she had reported the sexual misconduct.  AR 2339.  Gonzalez angrily confronted CR in front of the entire team, yelling at her that she should not have reported anything to Dean Smith and that she should have come to him first.  AR 2339-40.

            In the Summer of 2013, before the San Francisco trip for the Championship game, there was a trip to Florida at which some drinking among coaches and players occurred.  CR did not know if Gonzalez was aware of it. AR 2351-52, 2360.  CR reported to Dean Smith the misconduct during the San Francisco trip but did not report earlier incidents when an assistant coach touched CR’s sister’s shoulders on the bus or underage drinking on the Florida trip.  AR 2385-86, 2358-59.

            After CR’s report, the demeanor of all coaches towards her changed and they stopped communicating with her.  AR 2348.  CR continued to witness coaches laughing and flirting with the players, but it was kind of like this behavior was deliberately hidden from her.  AR 2347.

            She did not observe anything untoward on a subsequent Chicago trip or improper after her report to Dean Smith.  AR 2354, 1396-97.  

CR believes that Gonzalez cut her playing time in half because she reported to Dean Smith and also did not fulfill his promise to assist her in transferring to a four-year university.  AR 2343.  In the 2014 season, after she reported to Dean Smith, CR played in 23 games and started 15 of them.  AR 2362.  She transferred to a university in Louisiana to play soccer after the coach received a reference from Gonzalez that was “not positive”.  AR 2355, 2389.

 

            d. Ana Ramirez

            Ramirez was an assistant coach at Cerritos College when Gonzalez became head coach 2006. AR 2604-05.

In 2013-2014 she did not see Gonzalez tell any players anything to discourage reporting.  AR 2609.  She did not have the impression that players were afraid or intimidated to report any misconduct.  AR 2609.  She never observed Gonzalez yelling at CR in front of the team about reporting misconduct. AR 2606.  

She attended all practices from July 2019 through the end of the 2019 season, and Gonzalez did not do anything to discourage the players from reporting any misconduct they experienced or observed.  AR 2620.  In July 2019, she did not observe Gonzalez tell the team not to participate in any investigation, or that incoming freshmen should not be told about the investigation or alleged misconduct. AR 2619-20.  She did not hear from anyone else that Gonzalez did or said anything to discourage players from reporting or participating in any investigation, or not to tell incoming freshman about any allegations or investigation.  AR 2621.  She never heard Gonzalez tell AZ or any captain to affirmatively put a stop to any discussions with incoming players about allegations of misconduct or investigations.  AR 2622-23.  

In 2019, she never had the impression that players were afraid or intimidated by Gonzalez, other coaches, or the team environment from reporting any issues of misconduct.  AR 2635.  Gonzalez never did anything to discourage players from coming to him or making reports to anyone else.  AR 2636, 2367, 2655.  To the contrary, he told the team to come to him or any coach with any problems. AR 2653, 2654.

 

e. Maria Castro

Castro has been the Athletic Director since 2019 and was previously the soccer team trainer.  AR 2245-46.  

In September 2019, AZ reported drinking and improper texts by assistant coaches after a team trip to New York.  AR 2254-55.  Castro contacted the Title IX office, as well as her direct supervisor, Dean Rory Natividad, and they collectively decided to investigate.  AR 2255.

Castro met with the team on October 10, 2019, before practice, to tell them of her investigation.  AR 1155-56.  Afterwards, AZ reported an altercation with MC blaming AZ for reporting.  AR 2256-57.  MC blamed AZ for ruining their season through the investigation and Coach Whitfield’s suspension.  AR 2257.  AZ told Castro that most of the team was surrounding them during the confrontation, and Gonzalez was on the outskirts going to unlock the gate for practice. AR 2258.  

Castro summoned MC to her office through a text with Gonzalez, and told MC to “trust the process”, return to practice, and apologize to the team for her outburst.  AR 2258-59.  Gonzalez reported to Castro that MC had done so.  AR 2296. 

Castro investigated AZ’s report along with the Title IX coordinator.  AR 2260-61.  Castro had a relationship with the players, and she conducted the investigation, working with the Title IX coordinator every step.  AR 2261.  She interviewed about 15 student athletes on the women’s soccer team.  AR 2263.  She also interviewed Whitfield and Gonzalez.  AR 2266.  They found no evidence that Coach Whitfield and another coach were drinking in a bar (AR 2264-65) but did learn that coaches would sometimes text inappropriately (AR 2265).  Gonzalez said he was unaware of any alleged texting or drinking.  They concluded there was insufficient basis to fire Coach Whitfield.  AR 2267.  There was no evidence Gonzalez had anything to do with MC instigating the incident with AZ.  AR 2279-80.  

The result was an agreement between Whitfield, Gonzalez, and herself to “keep them in check” and make sure Whitfield knew how he should behave moving forward.  AR 2267.

As an athletic trainer for the team since 2013 before becoming Athletic Director in 2019, Castro had no direct knowledge of any conduct by Gonzalez or other coaches to inform the players they should not speak out, and never observed conduct that she should report.  AR 2314-17.    

 

f. Adriana Flores-Church

Adriana Flores-Church (“Church”) has been the Director of Human Resources since 2006 and VP since 2016.  AR 2546-47.  After the September 2019 Title IX investigation of AZ’s report, including MC’s retaliation and Gonzalez ignoring it, the District determined no disciplinary action was warranted against Gonzalez.  Coach Whitfield was placed on suspension during the investigation and was reinstated after the allegations were not substantiated.  AR 2575.[2] 

 

g. Valyncia Raphael-Woodward

Raphael was Director of Diversity, Compliance, and Title IX Coordinator from July 2016 to September 2020.  AR 2658.  She has a JD and a PhD in educational leadership, and extensive training in Title IX and sexual harassment investigations.  AR 2658-59.  

During her Title IX investigation, no one reported to her that Gonzalez did or said anything to discourage reporting.  AR 2684.  The investigation was concluded by June 20, 2019, before the players returned in July 2019.  AR 2684.  

If a player, after reporting improper conduct, is confronted by her teammates, the head coach has a duty to take action.   AR 2700.  The head coach has a variety of options, and Raphael hopes the coach would share it with her as soon as they become award of it.  AR 2700.  Raphael “coached” head coaches to report retaliation to her for Title IX reporting and also coached them to not intervene in any altercation between players as it may make matters worse.  AR 2700-01.  Intervention is an option, but she did not want coaches to be “deputized” to handle the issue on their own without letting her know.  AR 2703-04.  If the head coach had no knowledge, he cannot report it.  AR 2710.  But if Castro had information about Title IX retaliation, she was obliged to report it.  AR 2710.  If Castro told Gonzalez that she would handle a situation, he would be correct to follow that direction.  AR 2711. 

 

h. Octavio Marquez

Assistant Coach Octavio Marquez (“Marquez”) was an assistant soccer coach from 2009 to 2019.  AR 2845-46. 

CR was a very good player but had some attitude issues about not coming out of games or not starting.  AR 2848-49.  He is not aware of CR ever reporting any misconduct by anyone, and never observed Gonzalez scolding or admonishing her regarding her having reported something about him.  AR 2849.  He never heard that Gonzalez ever yelled at or scolded CR and would have heard about it if it happened.  AR 2849-50.  

Gonzalez was not a coach that would admonish a player in front of other players.  AR 2851.  He never observed Gonzalez tell players to not report anything without coming to him first.  In fact, Gonzalez encouraged players to talk to Castro (when she was an athletic trainer) or one of the deans if there was an issue that they did not feel comfortable discussing with a coach.  AR 2851-52.

Based on his ten years of working with Gonzalez, there was no culture of fear to prevent players from reporting concerns.  AR 2874.  He never heard Gonzalez discourage AZ or any other players from reporting anything to anyone, not to participate in any investigation, or not to talk to incoming freshman about allegations.  AR 2876-77.  If Gonzalez had said any that, Coach Marquez would have heard about it.  AR 2877. 

The District cleared him of any wrongdoing following its investigation.  AR 2902.

 

i. OL

OL started as a soccer player in the Summer 2019.  AR 2759.  AZ was not practicing because she was returning from a torn ACL. AR 2782.  Gonzalez never mentioned an investigation or that players should not talk to investigators, and OL was not aware of any investigation during the summer session. AR 2766.  OL never witnessed any coach flirting with any player.  AR 2767.

Gonzalez never did or said anything to discourage players from reporting anything they had concerns about, and there was no environment of fear where players were afraid to raise concerns or problems.  AR 2767.  OL felt comfortable talking to Gonzalez if she had an issue or concern.  AR 2768.  She and other players completed a three-hour course on Title IX.  AR 2768. She did not fear losing playing time if she reported misconduct and was not aware of other players being afraid.  AR 2769.

Two to three weeks after the 2019 New York trip, OL saw MC argue with AZ.  AR 2777.  Castro had told the team about an investigation but did not say what it was about. AR 2780-81. On the day of the altercation, the team started in the weight room then walked to the field.  AR 2820.  Castro was not present.  AR 2818-19.  AZ and MC raised their voices to each other.  AR 2777.  The players stood between MC and AZ to prevent any further altercation.  AR 2777, 2821-22. AZ then grabbed her stuff and left.  AR 2776-77.  OL learned from other players that MC was blaming AZ for the team losing an assistant coach but did not learn why MC was blaming AZ. AR 2780-81.

Before the argument, Gonzalez left the team from the weight room and drove around to go to the other side of the field and park.  AR 2820-21.  The team waited by the back gate to the field for Gonzalez to unlock it.  AR 2821. Gonzalez was walking to the gate on the other side and did not see the fight.  AR 2778.  OL knew Gonzalez did not observe the argument because she was looking around for coaches as she did not want her teammates to get in trouble for fighting with each other. AR 2779-80.  OL is certain that Gonzalez arrived after AZ had left.  AR 2822–23, 2827.

After the argument and during practice, Gonzalez told MC to go see Castro. AR 2783.  MC returned to practice and apologized to the team.  AR 2784.  OL later learned that AZ made the report, and OL was not mad at AZ.  AR 2799.  Nor were the other players.  AR 2799.  MC is usually loud and an instigator.  AR 2799, 2822.

 

j. Gonzalez

            Gonzalez had been the head coach of the women’s soccer team since 2006.  He also taught classes in health, sports psychology, sports management, soccer, soccer fitness and technique, weight training, beginning and advanced.  AR 2931, 2933.  

He told players he had an open-door policy, and they could also talk to other coaches, Castro (then team trainer), Human Resources, Title IX or whomever they felt comfortable with.  AR 2943.  When Escorcia tried to blackmail him by threatening to make misconduct allegations, Gonzalez reported it promptly to Title IX Coordinator Raphael.  AR 2949.  The ensuing investigation ended by June 20, 2019, before the team’s 2019 Summer session.  AR 2949-55.  Thus, contrary to AZ’s testimony, Gonzalez did not tell anyone in Summer 2019 not to talk to investigators.  AR 2991, 3051.

            Gonzalez did not have a confrontation with CR about reporting to Dean Smith instead of himself at a practice the week after the 2013 championship.  AR 2958.   Additionally, the championship was over and there was no practice.  AR 2958.  Neither Dean Smith, CR, nor anyone else ever told Gonzalez about any such report.  AR 2957-58.  

Based on the school game stats, CR played and started in most games.  AR 2968-69.  Gonzalez gave an honest assessment of CR to the Lafayette coach: CR was talented, could be lazy at times and uncoachable, and had an attitude, but he thought she would do a good job at the next level.  AR 2971.  Gonzalez recommended CR to coach at Bishop Amat High School in 2014 because she had won a championship there and he wanted her to motivate her as a player to get a coach’s perspective the expectations of a player.  AR 2975-76.  Gonzalez also mentored her as a coach.  AR 2977. 

            On October 10, 2019, at 7:00 a.m. in the weight room, Castro told the team she was conducting an investigation of allegations of misconduct.  AR 3006.  He was not present during the meeting because Castro said she wanted to meet with the players alone.  AR 3007.  Gonzalez was outside the weight room, speaking with the strength and conditioning coach.  AR 3007.  The meeting lasted five to ten minutes and the players started walking towards the field.  AR 3009.

Gonzalez waited until all the players were out of the weight room and made sure the door was closed.  AR 3009-10.  He walked to his car to drive to the gate that the coaches usually go through.  AR 3010.  He went to and unlocked the gate, unlocked and opened the bin and took out the practice equipment needed for that day, and carried it 20 yards to the bench.  AR 3010-11.  Then he walked to open the gate for the student athletes on the other side of the field.  AR 3011.  This process took 10-12 minutes.  AR 3013, 1834. 

            As Gonzalez was about 50 yards away from the players gate – halfway across the soccer field -- he heard what sounded like horseplay.  AR 3080-81.  As he got closer, it went silent within ten seconds.  AR 3082.  That was unusual.  AR 3082.  HE did not question anyone about it at the time.  AR 3082.  Later, Castro texted him that she wanted to see MC.  AR 3019-20.  He asked MC: What’s going on?  AR 3020.  MC said she did not know, and Gonzalez told MC to go see Castro.  AR 3020. 

At the end of practice, MC asked to speak to the team.  Gonzalez agreed, and MC apologized for yelling at AZ.  AR 3020-21.  He asked MC and MC said she did not want to talk about it.  AR 3021.  He then visited Castro who said that MC yelled at AZ because MC believed AZ caused the investigation.  AR 3021-22.  Gonzalez asked Castro if he should reach out to AZ and Castro said she would handle it.  AR 3023, 3087.  Gonzalez had no further contact with AZ.  AR 3024.  Later, Castro suspended AZ for playing in an outside league, which was not permitted.  AR 3024.  Gonzalez was not involved in that decision. AR 3025.

            Gonzalez never observed or received reports of players and coaches flirting but would have reported it to the Title IX coordinator and the dean if he had.  AR 3049.  Gonzalez had never been disciplined for any misconduct or given progressive discipline.  AR 3059-60.  If he returned to coach the soccer team, he would do a better job of communicating with students and coaches and have them sign a contract to reinforce rules and reporting.  AR 3060-61.         

 

4. The Excluded Evidence

            a. MT

            MT played on the women’s soccer team from 2013 to 2015.  AR 2045.  MT remembered two situations where Gonzalez was upset with players who made reports about sexual misconduct.  AR 2051.  Leslie told MT, who was captain, that she was uncomfortable about what coaches were saying about her, she tried to report it, and Gonzalez pulled her aside and told her that he was angry she did that.  AR 2052. 

The second incident was similar.  AR 2052.  The coaches were making fun of Ira’s weight and body type.  AR 2053.  MT could not recall if Ira made a complaint, but Ira told MT that Gonzalez pulled her (Ira) aside and told her not to say anything.  AR 2053.  Gonzalez never said anything or did anything to MG to discourage her from making a report.  AR 2094.

Gonzalez was present when Coach Memo was making fun of a student, Gracie, because of her weight.  AR 2053.  Memo said that Gracie was fat and needed to lose weight so she could move more quickly and be effective.  AR 2053.  MT told Memo that was not nice.  AR 2054.  Gonzalez did not intervene but instead laughed and said something to Memo in Spanish.  AR 2054.  Gracie was a great player.  AR 2054.  MT saw Gracie crying, but MT was unsure if Gracie heard the comments.  AR 2055.  

MT’s roommate and fellow soccer player, CG, was dating Coach Memo.  AR 2065-66.  Although MT was unsure if Gonzalez knew about the relationship, Gonzalez was present when Memo put his arms or hands around CG.  AR 2066-67. 

Coach Whitfield also asked through text message if MT wanted to get together with him, which she declined.  AR 2073.   Memo also texted that he wanted to see her underwear.  AR 2057.

MT did not know if Gonzalez was aware of any inappropriate relations between players and coaches. AR 2084.  

 

            b. AW

            AW was on the women’s soccer team in 2014. AR 1927.  AW had heard that sexual misconduct was reported to the college while she was on the team.  AR 1928.  A teammate told her that a year before she tried to tell the administration that the coaches were bothering her, but the administration had not done anything.  AR 1929.  The athletic director had told Gonzalez about the report, and he ended up telling the team that everything should stay in-house.  AR 1929.  As a result, AW was scared to report anything to administration.  AR 1929.

            When on the buses, the girls would dance sexually while the coaches would sometimes watch, however at no point did Gonzalez stop this dancing or stop the coaches from watching.  AR 1943-44.  Gonzalez would be present when coaches commented about a player’s body and did not stop it.  AR 2000.  Gonzalez would laugh off the other coach’s comments.  AR 2002.  For example, Coach Tavo made a comment to AW in the weight room that she should make sure to “get your leg workout in” which was sexual in nature.  AR 2013.  Gonzalez was present.  AR 2013.  AW did not come forward earlier because of the power that Gonzalez had to affect a player’s career.  AR 2008-09.

 

            c. LS 1

            LS 1 attended Cerritos College from 2008 until 2010.  AR 1951-52. Gonzalez knew that LS 1 suffered from sciatica and offered to help her by taking her to get a massage.  AR 1955, 1957.  LS 1 believed it would be a sports massage and agreed to go with Gonzalez.  AR 1955.  Instead, Gonzalez had booked and prepaid for a couples massage at a massage parlor.  AR 1955-56. 

During the session, Gonzalez and LS 1 were required to be naked in the same room, and Gonzalez had arranged for the room to also have a shower and a milk bath.  AR 1957.  After the massage, Gonzalez used the milk bath and attempted to convince LS 1 to go inside the milk tub with him.  AR 1957.  LS 1 only slightly stepped inside the bath feeling very uncomfortable, and instead took a quick shower.  AR 1957.  While she showered Gonzalez remained in the milk bath.  AR 1957.  After this, they received manicures and pedicures, which were also prepaid by Gonzalez.  AR 1957.  LS 1 only played along to get home safe.  AR 1985.  

Following the massage, Gonzalez wanted to go and grab a bite to eat.  AR 1957-58.  LS 1 remembered feeling very uncomfortable because Gonzalez was treating her like a girlfriend by opening the door for her and walking behind her.  AR 1958.  Gonzalez hugged her from behind which lasted for approximately a minute.  AR 1979-80.  LS 1 played along as she wanted to get home.  AR 1958.

            As a result of this experience, LS 1 felt uncomfortable.  AR 1960.  She decided she could not stay on a team where the head coach was hitting on her, and she transferred to Compton Community College.  AR 1960-61.

            Gonzalez had a meeting with the coaches and players that inappropriate comments should not be made.  AR 1964-65.  However, after this meeting Gonzalez was present when assistant coaches made sexual comments to players.  AR 1991-92. 

            If LS 1 had not experienced this situation with Gonzalez, she would not have transferred from Cerritos Community College, would have finished college faster, and would have stayed in-state.  AR 2041.  LS 1 never reported her experience because Gonzalez was powerful and could have had a tremendously negative impact on her soccer career.  AR 2007-08.

Gonzalez never threatened her in any way to prevent her from reporting. AR 2024.  Nor did he do so in the years after she was at Cerritos.  AR 2024.  Gonzalez was present for various comments by assistant coaches at which he would look the other way or laugh, but LS 1 could not recall any specific comment he likely heard.  AR 2043.

 

            d. LS 2

            LS 2 practiced with the women’s soccer team at Cerritos College during the summer of 2013.  AR 2180-81.  LS 2 had private training sessions with Coach Memo, who she described as flirtatious and making comments sexualizing her body. AR 2183-84, 2198.  She never told Gonzalez that Memo made her uncomfortable in this private training.  AR 2199.

During the summer of 2013, Gonzalez took her to get a massage at one of his friend’s homes while they were running errands. AR 2188-89.  They waited for each other outside on the beach while each had a massage.  AR 2188.  This interaction made LS 2 feel uncomfortable.  AR 2188-89. 

Prior to August of 2020, she had not told anyone about the massage and never previously reported it, but she came to the realization that this was inappropriate and that she should come forward.  AR 2189-90.

            LS 2 was friends with CR, who told her about sexual relations between assistant coaches and Cerritos soccer players.  AR 2225.  CR told her that she felt that her playing time was affected after she reported the sexual misconduct and that the player who was having sexual relations with Memo received more playing time.  AR 2225-26.

Gonzalez never did anything to prevent her from reporting Memo or any of her experiences with the coaches.  AR 2201.

 

5. The ALJ’s Decision

The ALJ issued her decision on August 22, 2022.  AR 1853-98.

 

a. Section 87680

            At the outset of the hearing, Gonzalez moved pursuant to section 87680 to exclude any evidence related to allegations of misconduct that occurred more than four years prior to the date of the filing of the notice.  AR 1855.  Section 87680 provides in relevant part:

 

“No testimony shall be given or evidence introduced relating to matters which occurred more than four years prior to the date of the filing of the notice. Evidence of records regularly kept by the governing board concerning the employee may be introduced, but no decision relating to the dismissal or suspension of any employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.”  AR 1855. 

 

b. Equitable Estoppel

            The District asserted that section 87680’s four-year time limit is subject to the doctrine of equitable estoppel.  AR 1855.  The District acknowledged that the majority of the charges against Gonzalez involved incidents that occurred more than four years prior to the January 21, 2021, notice and argued that evidence of these charges should be admitted pursuant to Atwater, supra, 41 Cal.4th at 227 where the California Supreme Court considered the statutory time limit provision in section 44944(a), the parallel provision to section 87680.  AR 1856.  The California Supreme Court found that Code section 44944’s statutory time limit was not absolute and could be extended under the doctrine of equitable estoppel.  AR 1856.  Testimony from District witnesses AW, LS 1, LS 2, MT, and CR was heard for the for the purpose of determining whether grounds existed to apply equitable estoppel.

            The ALJ stated that the District failed to meet its burden of establishing equitable estoppel for the majority of the allegations. However, there was evidence that Gonzalez’s conduct prevented CR from making additional reports of misconduct she experienced and observed after Gonzalez angrily confronted and prevented her from making additional reports after her first report to Dean Smith in 2013.  AR 1861.  As a result, Gonzalez was equitably estopped from asserting that the District is prevented from presenting evidence of wrongdoing involving or observed by CR after her report to Dean Smith.  AR 1861.

The District also asserted that the equitable doctrine of delayed discovery, which postpones the accrual of a cause of action until a party discovers or has reason to discover a cause of action, is ground to permit consideration of evidence of misconduct occurring more than four years prior to the date of the filing of the notice pursuant to Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Ca.4th 797, 807.  AR 1862. 

            In Ethicon, the California Supreme Court noted that “in order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.”  AR 1862.  The ALJ stated that the evidence established that the District failed to diligently and reasonably investigate multiple reports of misconduct its officials received until AW’s social media posts in 2020 became public.  AR 1862. 

            The ALJ granted Gonzalez’s motion to exclude in part and denied it in part.  AR 1862-63.  Evidence falling outside section 87680’s four-year limit is excluded, but Gonzalez is estopped from asserting the four-year limit on evidence of misconduct observed by CR after her report to Dean Smith.  AR 1863. 

           

            c. Credibility Evaluation

The ALJ summarized the witness testimony.   AR 1863-89.  The complaining witnesses -- CR, AZ, and AJ -- were credible and convincing.  AR 1891.  AZ had no discernible motivation to fabricate her testimony.  AR 1891.  Though AJ and AZ were on the team together for a period in 2019 and knew each other, they were not friends.  AR 1891.  Their testimonies regarding the environment at Cerritos College were consistent and established that (1) coaching staff would routinely flirt and romantically pursue the players, (2) players believed that if they did anything that made the coaches unhappy, they would lose playing time which would affect their ability to be recruited to other schools, and (3) Gonzalez discouraged players from reporting complaints to District administration.  AR 1891-92.  Although CR and AJ testified that Gonzalez made promises that he did not deliver, their testimony regarding the misconduct they witnessed was measured.  AR 1892.  Neither CR nor AJ made any allegation that Gonzalez personally harassed the players by sending personal text messages or in any other manner.  AR 1892. 

The ALJ did not credit Gonzalez’s testimony that he did not treat CR differently after her report.  AR 1892.  Gonzalez described CR as “lazy” to a recruiting coach.  AR 1892.  Gonzalez defended the call stating that he had to be honest in his assessment, but that assessment is inconsistent with his decision to recommend CR as a coach for the Freshman team at Bishop Amat.  AR 1892.  Gonzalez did not present any evidence suggesting that CR’s playing abilities, aptitude, or attitude had deteriorated from the time of that recommendation.  AR 1892. 

 

d. Immoral or Unprofessional Conduct

Pursuant to section 87732(a), the governing board of a community college district has the authority to seek the dismissal of a regular (tenured) employee for “[i]mmoral or unprofessional conduct.”  AR 1892. 

The District established, by a preponderance of the evidence, that Gonzalez engaged in immoral conduct when he failed to stop MC from threatening AZ after AZ reported the inappropriate behavior of coaching staff to Director Castro.  AR 1893.

 

e. Dishonesty

Pursuant to section 87732(b), the governing board of a community college district the authority to seek the dismissal of a regular (tenured) employee for “dishonesty.”  AR 1893. 

            ALJ Chin concluded that the District failed to establish cause exists to dismiss Gonzalez on the basis of dishonesty as many of the District’s allegations of dishonesty are related to conduct which occurred before the four-year period.  AR 1894.  To the extent District did not prove the misconduct, the District also failed to establish that Gonzalez was dishonest when denying the misconduct.  AR 1894.  To the extent that the charge of dishonesty is related to the District’s Special Interrogatories, the interrogatories were overbroad, vague and called for legal conclusions.  AR 1894.  The responses, therefore, could not establish that Gonzalez engaged in dishonest behavior.  AR 1894. 

 

            f. Evident Unfitness for Service

            Pursuant to section 87732(d), the governing board of a community college district the authority to seek the dismissal of a regular (tenured) employee for “evident unfitness for service.”  AR 1894. 

The ALJ concluded that Gonzalez’s conduct in the aggregate indicates a factual nexus between his conduct and a finding of his unfitness for service.  AR 1897.  The evidence established that Gonzalez permitted a toxic environment where players are subjected to flirtatious or abusive behavior by their coaches and where players were afraid to report any misconduct for fear of retaliation.  AR 1896.  This conduct adversely affected the players and continued until at least 2019.  AR 1896.  As the head coach, Gonzalez had significant authority over the players.  AR 1896.  He also had the ability to grant and reduce playing time and was instrumental in assisting players to transition to four-year schools.  AR 1896.  These decisions were not subject to any oversight or review.   AR 1896.  The imposition of discipline will not affect any of Gonzalez’s constitutional right and there has been some notoriety given to the conduct through the social media posts.  AR 1896. 

 

            g. Persistent Refusal to Obey

            The District has the right to adopt rules governing the conduct of its employees and to require the employees to observe the rules.  AR 1897.  A single violation of a school board’s rules is not of itself cause for the dismissal of a permanent teacher under section 44932(a)(8).  AR 1897. 

The District failed to present evidence that it had ever previously disciplined Gonzalez for misconduct before the instant action.  AR 1898.  The evidence presented by the District suggested that it had been complicit in enabling Gonzalez’s misconduct by exercising little to no oversight over him despite having received a number of reports of misconduct over the years when he was the head coach for the Cerritos College women’s soccer team.  AR 1898.  Therefore, the District failed to establish that grounds exist to dismiss Gonzalez for a persistent violation of, or refusal to obey, laws or the District’s regulations.  AR 1898. 

 

            h. Conclusion

            The ALJ decided that cause exists to dismiss Gonzalez pursuant to section 87732(a) for unprofessional conduct or immoral conduct, and section 87732(d) for evident unfitness for service, and that the District’s decision to dismiss him from employment is reasonable and supported by a preponderance of the evidence.  AR 1898. 

 

E. Analysis

Petitioner Gonzalez seeks administrative mandamus to vacate the ALJ’s termination decision.  The District’s Petition seeks to overturn the ALJ’s exclusion of witness testimony and finding on the cause for dishonesty.

 

1. The Excluded Testimony Was Properly Excluded

        No decision of dismissal or suspension shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.  §87680. On January 21, 2021, the District served Gonzalez with a Statement of Decision to Dismiss.  Thus, any charges or evidence prior to January 21, 2017 are barred by the language section 87680.

            The ALJ excluded the testimony and attendant exhibits of District’s witnesses AW, LS1, LS2, MT and CR under section 87680, concluding that neither equitable estoppel under Atwater, supra, 41 Cal.4th 227 nor the delayed discovery rule applied because the District was on actual notice of sexual harassment and inquiry notice for anything else.  AR 1863. 

            The District appeals from the ALJ’s ruling to exclude its witness testimony and evidence under the four-year rule in section 87680 and the ALJ’s findings that equitable estoppel and the discovery rule did not apply.  Evidentiary errors are generally reviewed for abuse of discretion.  People v. Guerra, (2006) 37 Cal.4th 1067, 1140, disapproved on other grounds, People v. Rundle, (2008) 43 Cal.4th 76, 151.  Public policy generally prevents claims after the unexcused lapse of time.  Addison v. State, (1978) 21 Cal.3d 313, 317.  Courts have little discretion to extend statutes of limitations. Hill v. Superior Court of Los Angeles County, (1967) 251 Cal.Capp.2d 746.

 

            a. Equitable Estoppel

In Atwater, a teacher who was accused of sexual misconduct moved to dismiss all allegations and exclude all evidence of sexual misconduct with five minor boys because the underlying incidents occurred more than four years before the district served its notice of intent.  41 Cal.4th at 230.  The teacher relied on section 44944(a), which was at the time identical in language to the pertinent part of section 87680:

 

“No testimony shall be given or evidence introduced relating to matters that occurred more than four years prior to the date of the filing of the notice. Evidence of records regularly kept by the governing board concerning the employee may be introduced, but no decision relating to the dismissal or suspension of any employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.”

 

The California Supreme Court reversed the Court of Appeal’s holding that section 44944(a)’s time limit is absolute and cannot be extended by the application of equitable doctrines.  The court held that the time bar is not absolute and equitable estoppel may apply where a school can show the employee’s affirmative conduct induced the students to refrain from reporting within the four-year period.  Id. at 232-33.  In essence, if the district can show that an employee used their power or authority to induce students or others to refrain from reporting the employee’s sexual misconduct, the district will be allowed to introduce evidence of sexual misconduct falling outside the four-year period.  Id. at 233.

The District argues that, under Atwater, the four-year bar in section 87680 is not absolute and is subject to the doctrine of equitable estoppel.  Simply put, Atwater prevents an employee from deliberately inducing another parties’ inaction.  Similarly, a party cannot commit a fraudulent or dishonest act, and then seek protection from their misdeeds by invoking a statute of limitation. “The purpose of the statute of limitation is to protect a defendant from the prosecution of a stale claim; it may never be used to assure the success of his fraud.”  Carruth v. Fritch, (1950) 36 Cal.2d 426, 434.  Opp. at 13-14.

Equitable estoppel applies in circumstances where a party has induced another into forbearing to act.  Lantzy v. Centex Homes, (2003) 31 Cal..App.4th 363, 383.  The elements of estoppel are: (1) the party to be estopped must be appraised of the facts; (2) he must intend that his conduct shall be acted upon; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.  Driscoll v. City of Los Angeles, (1967) 67 Cal.2d 297, 305. 

The District argues that the testimony of AW and MT should have been admitted because the elements of equitable estoppel are met by Gonzalez’s behavior in interfering with Cerritos College’s investigations of sexual misconduct and in threatening players who reported sexual misconduct on the team, including credible testimony from LS 1, CR, AJ, and AZ.  Opp. at 14.

First, Gonzalez knew the facts.  According to the District’s proof, he confronted CR about an investigation and angrily responded to discussions about an investigation when AZ and AJ were present.  Witnesses consistently testified that Gonzalez was present when comments were made about player’s bodies and when flirting occurred.  AR 1991-92, 2002, 2442-43, 3119.  

Second, the same evidence establishes that Gonzalez abused his position of power to preclude the District from acting by intimidating women and the team when reports were made, including confronting CR, angrily reacting to an investigation as AZ testified, and demanding players’ phones as AJ described.  AR 2339-40, 2420, 3115.  Gonzalez also knew he had an independent duty to report but failed to do so.  AR 2258, 3080.  

Third, the District had no knowledge of the misconduct because Gonzalez failed to report the misconduct of his coaching staff and/or concealed it.  Id.  CR’s report to Dean Smith is not District knowledge.  Gonzalez was a championship soccer coach who insisted nothing was wrong to Dean Smith and Dean Smith listened. The reality is that the District never had notice.

Fourth, Gonzalez’s failure to report, and concealment of his own misconduct, left the District unable to take disciplinary action against him.  Justice and equity demand that the District’s evidence of misconduct be admitted to break the cycle of harassment and abuse. Opp. at 18-19.

The District’s argument is specious.  Under Atwater, the employee’s mere failure to report or self-report does not trigger equitable estoppel.  Estoppel does not apply to obligate an employee to report his own misconduct, and any limitations period still runs in that circumstance.  There must be specific action by the defendant prevented the commencement of the action in a timely manner.  Mark K. v. Roman Catholic Archbishop, (1998) 67 Cal.App.4th 603, 613. 

As the ALJ found, the District has no evidence that Gonzalez’s words or conduct towards any of the excluded witnesses induced them to not report.

MT provided only hearsay evidence that Ira told her that Gonzalez pulled Ira aside and told her not to say anything.  AR 2053.  Gonzalez never said anything or did anything to MT to discourage her from making a report.  AR 2094. 

AW also only provided hearsay from a teammate, who told her that a year before she tried to tell the administration that the coaches were bothering her, the athletic director told Gonzalez about the report, and he ended up telling the team that everything should stay in-house.  AR 1929.  

LS 1 had troubling testimony about a massage and milk bath with Gonzalez, but she never reported her experience because Gonzalez was powerful and could have had a tremendously negative impact on her soccer career.  AR 2007-08.  Gonzalez never threatened her in any way to prevent her from reporting.  AR 2024.  Nor did he do so in the years after she left Cerritos College.  AR 2024. 

LS 2 had private training sessions with Coach Memo, who she described as flirtatious and making comments sexualizing her body.  AR 2183-84, 2198.  She never told Gonzalez that Memo made her uncomfortable in her private training.  AR 2199.  During the summer of 2013, Gonzalez also took her to get a massage at one of his friend’s homes while they were running errands.  AR 2188-89.  Yet, Gonzalez never did anything to prevent her from reporting Coach Memo or any of her experiences with the coaches.  AR 2201.

Finally, CR observed Coach Millan stroking the upper thigh area of one of her teammates (Lily).  AR 2335.  AJ informed CR that another teammate, Clare Gomez, just had a threesome with Coach Memo and Coach Whitfield.  AR 2336.  CR felt she should say something to a higher authority, but not Gonzalez because Memo was his brother.  AR 2336-37.  CR reported to Athletic Dean Smith what she observed and heard upon her return from the trip.  AR 2338-39, 2359.  Gonzalez angrily confronted CR in front of the entire team, yelling at her that she should not have reported anything to Dean Smith and that she should have come to him first.  AR 2339-40.

As Gonzalez argues (Reply at 6), there is no evidence that Gonzalez did or said anything to AW, MT, LS1, LS2, or CR that deterred them from reporting misconduct.  In fact, CR actually reported after the December 2013 trip.  MT and AW provided only hearsay evidence that Gonzalez told another soccer player not to say anything.  LS 1 and LS 2 testified that Gonzalez never did anything to discourage reporting.  It is also true, as Gonzalez argues, that these witnesses were adults, unlike the minors in Atwater, and were trained annually on Title IX, including how to report sexual harassment.  AR 2121, 2768, 2150, 2286-87.  Whether any of them was deterred from reporting because of concern about their playing career is insufficient under Atwater, which requires affirmative discouragement by the employee for estoppel.  There is no evidence Gonzalez affirmatively prevented any of these witnesses from reporting.  Reply at 6.

Additionally, all these students were outside Gonzalez’s control by 2015.  Even if there were evidence that he discouraged them from reporting before 2015, nothing prevented them from reporting the misconduct in subsequent years.  Indeed, some of the witnesses came forward in 2020 after AW posted on Instagram.  See AR 1858-59.  These witnesses (except CR) simply elected not to report anything until 2020 without any affirmative effort by Gonzalez.  

The ALJ correctly ruled that equitable estoppel did not apply to admit the testimony of the excluded witnesses.

 

b. The Delayed Discovery Rule

The District argues that, while Atwater court based its decision on the application of equitable estoppel to the four-year rule in section 44944, it did not rule out other equitable grounds.  41 Cal.4th at 233.  This is consistent with authority that the statute of limitations in administrative matters is properly evaluated under rules similar to those in judicial proceedings.  See 2 Cal.Jur.3d, Administrative Law, §144, p. 366.  Opp. at 14.

The delayed discovery rule is an exception to the general rule for determining when a cause of action accrues.  Fox v. Ethicon Endo-Surgery, Inc., (2005) 35 Cal.4th 797, 807.  The delayed discovery rule postpones accrual of a cause of action until the plaintiff discovers, or has reason to suspect, a factual basis for its elements.  Id. at 803.  The delayed discovery rule permits accrual to be delayed until a plaintiff knew or should have known of the wrongful conduct at issue.  Naftzger v. American Numismatic Society, (1996) 42 Cal.App.4th 421, 428.  Opp. at 14.

The District argues that the ALJ improperly excluded the testimony of LS 1 and LS 2 based on the delayed discovery rule.  The ALJ acknowledged that the District had no notice regarding Gonzalez’s misconduct with respect to LS 1 and LS 2:

 

“District witnesses LS 1, LS 2, and MT did not indicate they had attempted to report any misconduct to the District or that they had been prevented from reporting by any misconduct by Gonzalez.” AR 1856.

 

Despite this finding, the ALJ did not explain why she did not consider the testimony of LS 1 and LS 2.  The testimony of LS 1 and LS 2 concerns entirely separate issues from CR’s report in 2014, as Gonzalez’s misconduct with LS 1 and LS 2 happened in 2010 and 2013.  The District had no knowledge of, nor any reasonable opportunity to discover, Gonzalez’s abuse of his position to get these two female student athletes to engage in sexual activities with him, and the doctrine of delayed discovery clearly applies.  California’s public policy is to allow delayed discovery in sexual abuse and assault cases.  See, e.g., CCP §340.1. That same principle should apply to undisclosed allegations of Gonzalez’s sexual misconduct.  The District’s basis to initiate dismissal proceedings thus did not accrue until it discovered Gonzalez’s misconduct.  Opp. at 17-18.

            Atwater did not permit other equitable theories, only concluding that it need not decide whether other equitable principles apply.  41 Cal.4^th at 233.  The court believes that the delayed discovery rule does not apply to the statutory bar of section 87680.  To do so would subvert the plain language of, and public policy behind, section 87680, which precludes a dismissal or suspension based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.  Unlike the delayed discovery rule -- which concerns the accrual of a claim -- section 87680 is a limitation on the charge and use of evidence more than four years old in an employee dismissal or suspension.  Whatever the wisdom of the statute, its purpose is to prevent the use of stale evidence for a claim that has already accrued.  The delayed discovery rule has no bearing on such a circumstance. 

            Atwater permitted more than four-year old evidence and charges when the employee affirmatively acts to prevent reporting of misconduct based on an estoppel theory.  In that circumstance, the statute of limitations already has passed, and the employee is estopped from relying on it.  41 Cal.4^th at 232 (citing Lantzy v. Centex Homes, (2003) 31 Cal.4^th 363).   In contrast, the delayed discovery rule prevents accrual of a claim and has nothing to do with the employee’s inequitable conduct.  To apply delayed discovery would permit a district to evade section 87680’s purpose.  

Even if, arguendo, the delayed discovery rule applies, the ALJ was correct that the rule only applies where the plaintiff has been diligent.  “[P]laintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put [them] on inquiry. . .”  Fox v. Ethicon Endo-Surgery, Inc., (2005) 35 Cal.4th 797, 807-08 (citations and internal quotes omitted).  

In December 2013, CR observed Coach Millan stroking the upper thigh area of one of her teammates (Lily).  AR 2335.  AJ informed CR that another teammate, Clare Gomez, just had a threesome with Assistant Coach Memo and Assistant Coach Whitfield.  AR 2336.  CR felt she should say something to a higher authority and reported to Athletic Dean Smith.  AR 2338-39, 2359.  

In 2010, LS 1 experienced sexual harassment due to a massage and milk bath with Gonzalez.  AR 2007-08.  During the Summer of 2013, LS 2 had private training sessions with Assistant Coach Memo, who was flirtatious and made comments sexualizing her body. AR 2183-84, 2198.  Gonzalez took her to get a massage at one of his friend’s homes while they were running errands. AR 2188-89.  Gonzalez never did anything to prevent her from reporting Memo or any of her experiences with the coaches.  AR 2201.  

The District does not cite any authority that the delayed discovery rule can prevent accrual where the defendant is aware of sexual harassment of one victim but not a second or third.  The District should have known, or could have discovered upon reasonable inquiry, the allegations of LS 1 and LS 2 based on Dean Smith’s knowledge of CR’s report in December 2013.  These incidents occurred before CR’s December 2013 observations.  It is true that the experiences of LS 1 and LS 2 were separate incidents, but they should have been uncovered in a reasonable sexual harassment investigation.  Yet, the District failed to investigate sexual misconduct by Cerritos College coaches until AW posted an allegation of sexual harassment on Instagram in August 2022.  See AR 1858-59. 

The delayed discovery rule did not prevent exclusion of the testimony of LS 1 and LS 2 under the four-year rule.

 

2. The CR Evidence Not Excluded

After CR reported to Dean Smith, Gonzalez angrily confronted her in front of the entire team, yelling at her that she should not have reported anything to Dean Smith and that she should have come to him first.  AR 2339-40.  The ALJ ruled that “[Gonzalez]…is estopped from asserting the four-year limit on evidence of misconduct observed by C.R. after her report to Dean Smith.” 1855-63.  This ruling was correct.

Gonzalez argues that the problem is that CR testified she did not observe any misconduct after her report to Dean Smith.  She did not observe anything untoward on a subsequent Chicago trip or improper after her report to Dean Smith.  AR 2354, 1396-97.  Thus, the ALJ should not have considered any of CR’s testimony of events.  Yet, CR’s testimony factored into the ALJ’s decision as she reached back years to conclude that Gonzalez allowed a “toxic environment. . .until at least 2019.”  AR 1896.  In the absence of CR’s testimony, there is only the testimony of AZ and AJ, who were at the District in 2017 and 2019 and conceded they did not know if Gonzalez was aware of any misconduct.  Thus, the ALJ overreached to make a broad conclusion of a toxic atmosphere.  Pet. Op. Br. at 11.

Abuse of discretion occurs when a court misunderstood the facts or there was insufficient evidence to support the facts it relied on.  People v. Cortez, (1971) 6 Cal.3d 78, 85-86. Because CR did not observe any more misconduct after she reported to Dean Smith, ALJ should not have considered any of CR’s testimony of events.  By contravening or ignoring her ruling or misunderstanding the facts, she abused her discretion and tainted the decision with inadmissible evidence central to its outcome.  Reply at 9.

The District does not respond to this argument.  However, the ALJ did not improperly consider CR’s testimony. 

First, the ALJ’s conclusion about a toxic atmosphere was clearly based on AZ’s testimony, not CR’s.  AZ described the team environment as “toxic,” with coaches demeaning players, mocking their weight, and using fitness as punishment.  AR 2442-43.  Other teammates felt the same.  AR 2445.

Second, while CR did not observe any additional misconduct after reporting to Dean Smith, the ALJ was entitled to consider CR’s testimony about the repercussions CR felt from reporting.  This included the fact that the demeanor of all coaches towards her changed, and they stopped communicating with her.  AR 2348.  Gonzalez cut her playing time in half and did not fulfill his promise to assist her in transferring to a four-year university.  AR 2343.  CR transferred to a university in Louisiana to play soccer after the coach received a reference from Gonzalez that was “not positive”.  AR 2355, 2389.   The ALJ was entitled to consider this testimony.  See AR 1866-67.

 

4. The Weight of the Evidence

a. Pertinent Testimony

(i). Student Testimony

The ALJ’s exclusion of testimony left only AZ, AJ, and to some extent CR, as the District’s student witnesses.

 

AZ

AZ attended Cerritos from July 2017 until January 2020.   AR 2413.  She testified to two instances concerning Gonzalez.

First, in the Summer of 2019, there was a District investigation regarding a player who was alleged to be partying and having sexual relationships with coaching staff during a yearly team trip in 2018.  AR 2418.  During a team practice, one of the players mentioned she got a call from an investigator and Gonzalez became angry and defensive.  AR 2419-20.  Gonzalez ordered: “Nobody from here on out is to speak to any investigator.”  AR 2420.  Gonzalez pulled AZ and the other team captain aside, telling them, “There’s no proof.  Do they have photos? What do they want me to do, fire my own brother?” Gonzalez also blamed the female students, stating that the players should not have been in the room where the coaches were drinking.  AR 2421.  AZ witnessed Gonzalez interrogating each player individually about where the investigation came from.  AR 2422-23.   Gonzalez ordered AZ and her fellow captain not to mention the investigation or any sexual harassment allegations to any new players on the team and, if they heard new players talking about it, they were to “shut it down immediately.”  AR 2424.

Second, AZ and her teammate felt uncomfortable with Coach Whitfield, who added players as friends on social media, drank shots with players, made inappropriate comments, and threatened to cut playing time when rejected.  AR 2425-26, 2431, 2433-34.  On a soccer trip across the country during the Summer of 2019, AZ received inappropriate text messages from Whitfield after he attempted to have her drink alcohol with him.  AR 2434-36.  AZ felt she could not report inappropriate behavior to Gonzalez based on his prior response to an investigation.  AR 2437. 

            AZ described the team environment as “toxic,” with coaches demeaning players, mocking their weight, and using fitness as punishment.  AR 2442-43.  AZ reported to the Title IX office.  AR 2446.  She obtained Castro’s guaranty of anonymity and told Castro about the inappropriate and toxic behavior on the team.  AR 2447-48. 

On October 10, 2021, Castro had a meeting with the team about the allegations being investigated.  AR 2452.  Following this meeting, MC screamed at and accused AZ of reporting to Castro and threated to beat her up.  AR 2454.  The confrontation lasted 30 seconds.  AR 2492.  The whole team -- probably 16-20 players -- was present.  AR 2493.  Other players were shouting to calm MC down and holding her back.  AR 2495.  Gonzalez was 10-15 feet away when MC started yelling and he was two to three feet away when he opened the gate.  AR 2453-54.  He did nothing to stop MC or correct what she said.  AR 2454.  It was clear he knew what was going on.  AR 2497.

           

            AJ

            AJ participated in the women’s soccer program in 2018 and 2019.  AR 3109.  AJ went on a road trip to Seattle in September with the team where the coaches were intoxicated, and Gonzalez was present.  AR 3110, 3123.  AJ was accosted by Coach Whitfield who put his hand on her leg under a table while they were drinking.  AR 3110.  This made her uncomfortable, but she did not report it because she had heard that nothing would happen and she would be retaliated against, such as loss of playing time.  AR 3111-12.  AJ did not know if Gonzalez was aware of the incident.  AR 3128. 

            AJ was aware of an “app” which accused a Cerritos College player of sleeping with one of the coaches.  AR 3114.  That player’s mother spoke to Gonzalez, who told the players they needed to own up to sending the app.  AR 3114.  If not, the police would be called and there would be an investigation.  AR 3115.  They asked for the players phones to see if they had downloaded the app.  AR 3115. Gonzalez talked to the team and told them that the allegations were false.  AR 3118. 

Assistant Coach Ramirez flirted with players during practice.  AR 3119.   Gonzalez was around but did not think anything of it.  AR 3119.

            Gonzalez never discouraged her from reporting or threatened loss of playing time.  AR 3134.

 

            CR

            CR attended Cerritos College from 2013 to 2015.  After she reported to Dean Smith the events of the December 2013 soccer trip, Gonzalez angrily confronted CR in front of the entire team, yelling that she should not have reported anything to Dean Smith and that she should have come to him first.  AR 2339-40.

            After CR’s report, the demeanor of all coaches towards her changed; they stopped communicating with her.  AR 2348.  CR believes that Gonzalez cut her playing time in half because she reported to Dean Smith, and also did not fulfill his promise to assist her in transferring to a four-year university.  AR 2343.  She transferred to a university in Louisiana to play soccer after the coach received a reference from Gonzalez that was “not positive”.  AR 2355, 2389.

 

(ii). Gonzalez

            Gonzalez told players he had an open-door policy, and they could also talk to other coaches, Castro (then team trainer), Human Resources, Title IX or whomever they felt comfortable with.  AR 2943.  When Escorcia tried to blackmail him by threatening to make misconduct allegations, Gonzalez reported it promptly to Title IX Coordinator Raphael.  AR 2949.  The ensuing investigation ended by June 20, 2019, before the team’s 2019 Summer session.  AR 2949-55.  Contrary to AZ’s testimony, Gonzalez did not tell anyone in the Summer of 2019 not to talk to investigators.  AR 2991, 3051.

            Gonzalez did not have a confrontation with CR about reporting to Dean Smith instead of himself at a practice the week after the 2013 championship.  AR 2958.  The championship was over and there was no practice.  AR 2958.  Neither Dean Smith, CR, nor anyone else ever told Gonzalez about any such report.  AR 2957-58.  

There were no repercussions against CR.  Based on the school game stats, CR played and started in most games.  AR 2968-69.  Gonzalez gave an honest assessment of CR to the Lafayette coach.  AR 2971.  Gonzalez recommended CR to coach at Bishop Amat High School and also mentored her in her coaching.  AR 2975-77.  

            On October 10, 2019, at 7:00 a.m. in the weight room, Castro told the team she was conducting an investigation of allegations of misconduct.  AR 3006.  He was not present during the meeting because Castro said she wanted to meet with the players alone.  AR 3007.  Gonzalez waited until all the players were out of the weight room and made sure the door was closed.  AR 3009-10.  He walked to his car to drive to the gate that the coaches usually go through.  AR 3010.  He went to and unlocked the gate, unlocked and opened the bin and took out the practice equipment needed for that day, and carried it 20 yards to the bench.  AR 3010-11.  Then he walked to open the gate for the student athletes on the other side of the field.  AR 3011.  This process took 10-12 minutes.  AR 3013, 1834. 

            As Gonzalez was about 50 yards away from the players gate – halfway across the soccer field -- he heard what sounded like horseplay.  AR 3080-81.  As he got closer, it went silent within ten seconds.  AR 3082.  That was unusual.  AR 3082.  He did not question anyone about it at the time.  AR 3082.  Later, Castro texted him that she wanted to see MC.  AR 3019-20.  He asked MC what’s going on?  AR 3020.  MC said she did not know, and Gonzalez told MC to go see Castro.  AR 3020. 

At the end of practice, MC asked to speak to the team.  Gonzalez agreed, and MC apologized for yelling at AZ.  AR 3020-21.  He asked and MC said she did not want to talk about it.  AR 3021.  He then visited Castro, who said that MC yelled at AZ because MC believed AZ caused the investigation.  AR 3021-22.  Gonzalez asked Castro if he should reach out to AZ and Castro said she would handle it. AR 3023, 3087.  

            Gonzalez never observed or received reports of players and coaches flirting but would have reported it to the Title IX coordinator and the dean if he had.  AR 3049.  Gonzalez had never been disciplined for any misconduct or given progressive discipline.  AR 3059-60.

 

            (iii). Other Pertinent Testimony  

Gonzalez was aided by the testimony of Coach Ramirez, Coach Marquez, and student OL.

            Coach Ramirez testified that she attended all practices from July 2019 through the end of the 2019 season, and Gonzalez did not do anything to discourage the players from reporting any misconduct they experienced or observed.  AR 2620.  She did not hear from anyone else that Gonzalez did or said anything to discourage players from reporting or participating in any investigation, or not to tell incoming freshman about any allegations or investigation.  AR 2621.  She never heard Gonzalez tell AZ or any captain to affirmatively put a stop to any discussions with incoming players about allegations of misconduct or investigations.  AR 2622-23.  

Coach Marquez testified that CR was a very good player but had some attitude issues about not coming out of games or not starting.  AR 2848-49.  He is not aware of CR ever reporting any misconduct by anyone, and never observed Gonzalez scolding or admonishing her regarding her having reported something about him.  AR 2849.  He would have heard about it if it happened.  AR 2849-50.  Gonzalez was not a coach that would admonish a player in front of other players.  AR 2851.  Gonzalez encouraged players to talk to Castro (when she was an athletic trainer) or one of the deans if there was an issue that they did not feel comfortable discussing with a coach.  AR 2851-52.

OL testified that Gonzalez never did or said anything to discourage players from reporting anything they had concerns about, and there was no environment of fear where players were afraid to raise concerns or problems.  AR 2767.  OL felt comfortable to talk to Gonzalez if she had an issue or concerns.  AR 2768.  She and other players completed a three-hour course on Title IX.  AR 2768.

OL saw MC argue with AZ.  AR 2777.  Castro had told the team about an investigation, but she did not say what it was about.  AR 2780-81.  The team started in the weight room then walked to the field.  AR 2820.  AZ and MC raised their voices to each other.  AR 2777.  The players stood between MC and AZ to prevent any further altercation.  AR 2777, 2821-22.  AZ then grabbed her stuff and left.  AR 2777.

Before the argument, Gonzalez left the team from the weight room and drove around to go to the other side of the field and park.  AR 2820-21.  The team waited by the back gate to the field for Gonzalez to unlock it. AR 2821. Gonzalez was walking to the gate on the other side and did not see the fight.  AR 2778. OL knows Gonzalez did not observe the argument because she was looking around for coaches because she did not want her teammates to get in trouble for fighting with each other. AR 2779-80.  OL is certain that Gonzalez arrived after AZ had left. AR 2822–23, 2827.

 

b. Immoral Conduct

The courts have developed a broad and well-understood definition of immoral conduct in teacher dismissal cases: “[...] that which is hostile to the welfare of the general public and contrary to good morals.  Immorality has not been confined to sexual matters, but included conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and public welfare.”  Palo Verde, supra, 9 Cal.App.3d at 971-72 (citation omitted).  Based on this definition, a teacher’s falsification of attendance records to add names of three students to secure continued employment was deemed immoral conduct and dishonesty. Weiland, supra, 179 Cal.App.2d at 808.  Similarly, a teacher’s removal of school property (a public address system speaker) from the classroom wall was deemed immoral.  Palo Verde, supra, 9 Cal.App.3d at 967.

The ALJ sustained the cause of immoral conduct based on a single incident: “[Gonzalez] engaged in immoral conduct when he failed to stop M.C. from threatening A.Z. after A.Z reported the inappropriate behavior of coaching staff to Director Castro.”  AR 1893.

The District only generally argues that it presented extensive evidence demonstrating that Gonzalez engaged in and permitted sexual harassment within the women’s soccer program.  The District witnesses consistently testified, that Gonzalez engaged in sexual harassment and openly allowed his assistant coaches to sexually harass female players.  The ALJ correctly determined that the testimony of the District’s witness was:

 

“…consistent and established that: (1) coaching staff would routinely flirt and romantically pursue the players; (2) players believed that if they did anything that made the coaches unhappy, they would lose playing time which would, in turn, affect their ability to be recruited to other schools; and (3) Gonzalez discouraged players from reporting any complaints to District administration.”  AR 1891-92.

 

The District argues that the testimony of multiple witnesses consistently showed that Gonzalez either participated in or tolerated inappropriate sexualized behavior toward female student-athletes, including flirting, demeaning comments, and overt sexual advances from both him and his coaching staff.  AR 2442-43 (AZ), 2347 (CR), 2053-54 (MT), 1991-92 (LS 1).  Witnesses LS 1 and LS 2 testified that Gonzalez arranged for a “couples massage,” requiring both LS 1 and Gonzalez to be naked, which made LS deeply uncomfortable.  AR 196.  This behavior clearly falls under immoral conduct, as it reflects a willful disregard for the boundaries expected of a coach in a professional setting.  Opp. at 15.

The record also clearly establishes that Gonzalez confronted women on multiple occasions when they reported sexual misconduct and that he directly interfered with investigations of sexual misconduct.  CR testified that Gonzalez yelled at her in front of the entire team in 2014, and MT remembered two situations where Gonzalez was upset with players who made reports about sexual misconduct to the college.  AZ testified that Gonzalez angrily directed the team not to participate in an investigation pertaining to allegations of sexual harassment in 2019, and AJ testified that Gonzalez demanded that players turn over their phones so he could search through them in the same period.  Gonzalez’s conduct in yelling at and intimidating women who report sexual harassment is immoral conduct.  Gonzalez’s conduct in directly interfering with investigations of sexual harassment also constitutes immoral conduct as it is indicative of corruption and indecency, and an inconsiderate attitude toward good order and the public welfare.  See Weiland, supra, 179 Cal.App.2d at 811.  Opp. at 15.

There are two problems with the District’s argument.  First, the District wrongly relies on the excluded testimony of MT, LS 1, and LS 2.  Second, the District relies on evidence from witnesses that are irrelevant to the ALJ’s specific finding of immoral conduct, which is that Gonzalez failed to stop MC from threatening AZ after AZ reported the inappropriate behavior of coaching staff to Castro.  AR 1893.  The testimony of CR and AZ that Gonzalez instructed players not to report does not bear on this finding.

Gonzalez adds that it is far from clear as to where he was when the altercation between MC and AZ occurred.  OL, Castro, Gonzalez and the maps and photos indicate he was not there.  AZ’s own 5.5-minute timeline supports that conclusion.  Even if he was near enough to hear more than noise, AZ’s account shows there was noise and multiple voices yelling, and there is no reliable evidence about what Gonzalez actually heard and understood from the 30-second altercation.  AZ testified that MC threatened to “beat your ass” at a time when Gonzalez was at least 15 feet away, behind a heavy and tall steel gate.  Pet. Op. Br. at 9.

Gonzalez notes that the District did not call any other players to corroborate AZ’s testimony, which should have been looked upon with suspicion.  Evid. Code §412.  Gonzalez testified that he heard some commotion when he got close to the gate, but it ended in ten seconds as he got closer. As OL indicated, the players would not want to be caught by a coach fighting with each other.  Even if he was just two to three feet behind the gate, there is no reliable evidence that he heard and understood the significance of what MC was yelling, let alone that she was threatening AZ, or that he could do anything to stop it while he was walking up to and unlocking a heavy gate and chain.  In fact, Raphael said she coached Gonzalez not to intervene in such situations. Thus, the ALJ’s finding that “Gonzalez failed to stop MC from threatening AZ” is not sustained by the evidence.  Pet. Op. Br. at 9-10.

The court agrees that it has not been proven that Gonzalez heard the details of the confrontation between MC and AZ – in particular, MC’s threat against AZ for reporting.  This fact does not absolve Gonzalez, however, because he clearly heard something.  Moreover, he admitted that what sounded like horseplay (AR 3080-81) got silent within ten seconds as he grew closer, which was unusual.  AR 3082.  Yet, he did not question anyone about it at the time.  AR 3082. 

Gonzalez is wrong to argue that Title IX Coordinator Raphael coached him to do nothing in this situation.  To the contrary, Raphael testified that the head coach has a duty to take action if a player, after reporting improper conduct, is confronted by her teammates.   AR 2700.  The head coach has a variety of options, and Raphael hoped the coach would share it with her as soon as he became aware of it.  AR 2700.  Raphael coaches head coaches to report retaliation to her for Title IX reporting, and also coaches them to not intervene in any altercation between players as it may make matters worse.  AR 2700-01. 

Thus, Gonzalez had a duty to take action, and he should have at least inquired about what was happening in the unusual incident.  He then should have informed Raphael when he learned MC was threatening AZ for reporting.  Raphael testified that, if Castro told Gonzalez that she would handle the situation, he would be correct to follow that direction.  AR 2711.  But Castro did not do so.  She only told Gonzalez that she would handle the issue of whether AZ wanted to return to the team, which occurred sometime later.  AR 3023, 3087.  

In sum, Gonzalez failed to handle the matter appropriately.  Was his failure immoral conduct?  Gonzalez is correct that the answer is no.  As he argues, it is overreaching to label as immoral conduct Gonzalez’s failure to stop an altercation that ended in 30 seconds, for which he was not present, and where it is unclear that he heard and understood the words said.  Pet. Op. Br. at 10-11.

Moreover, the ALJ’s finding was that Gonzalez failed to stop MC from threatening AZ, not that he failed to take action by reporting the matter to Raphael.  There is no evidence that Gonzalez was present in sufficient time to stop the threat.  To the contrary, OL testified that she was looking around for coaches and Gonzalez, who was walking to the gate on the other side, was not present for the fight.  AR 2778-80, AR 2822–23, 2827.  While Gonzalez should have taken action, it was not physically possible for him to stop MC from making the threat.[3]

The finding of immoral conduct is not supported by the weight of the evidence.

 

c. Unfitness for Service

Evident unfitness for service in section 87732(d) means “clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’”  Woodland, supra, 2 Cal.App.4th at 1444.  Conduct constituting evident unfitness for service will often constitute unprofessional conduct.  Id. at 1445.  For a school district to meet this charge, it must demonstrate satisfaction of the Morrison factors and take the additional step of showing that the unfitness is “evident,” meaning that the offensive conduct is caused by a defect in temperament.  Ibid.

In Morrison, supra, 1 Cal.3d at 214, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher.  Those factors are: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Id. at 229-30.  Not every Morrison factor must be considered; a trier of fact may consider all of the factors that are relevant to the respective case.  Ibid.; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766, 1777.

“[T]he term ‘evident unfitness for service’ should not be given a definite technical meaning and a court should not arbitrarily find that it is subsumed under some set formula….”  Oakland Unified School Dist. v. Olicker, (1972) 25 Cal. App. 3d 1098, 1108 (citations omitted).  Before an inference can be drawn that conduct renders a teacher evidently unfit to teach, it is necessary to show “a relationship between that conduct and the functioning of defendant as a teacher.” Id. at 1109.

The ALJ considered the Morrison factors and found that Gonzalez permitted a toxic environment where players were subjected to flirtatious or abusive behavior by coaches and where players were afraid to report misconduct for fear of retaliation.  AR 1896.  This conduct continued to at least 2019.  As head coach, Gonzalez had significant authority over the players, including their playing time and transfer to four-year schools.  AR 1896.  This conduct was blameworthy and had no extenuating circumstances.   AR 1896.  Gonzalez is likely to repeat his behavior as he has received Title IX training since 2016 with no effect.  See AR 1896.  The imposition of discipline will not affect any of Gonzalez’s constitutional rights and there has been some notoriety of the conduct through social media.  AR 1896. 

After considering the Morrison factors, the ALJ concluded that there is a factual nexus between Gonzalez’ conduct and a finding of his unfitness for service.   AR 1897.  The testimony supporting this charge is as follows.

 

AZ

AZ testified to two instances concerning Gonzalez.  In the Summer of 2019, there was a District investigation regarding a player who was alleged to be partying and having sexual relationships with coaching staff during a yearly team trip in 2018.  AR 2418.  During a team practice, one of the players mentioned she got a call from an investigator, and Gonzalez became angry and defensive.  AR 2419-20.  Gonzalez ordered: “Nobody from here on out is to speak to any investigator.”  AR 2420.  Gonzalez pulled AZ and the other team captain aside, telling them, “There’s no proof.  Do they have photos? What do they want me to do, fire my own brother?” Gonzalez also blamed the female students, stating that the players should not have been in the room where the coaches were drinking.  AR 2421.  AZ witnessed Gonzalez interrogating each player individually about where the investigation came from.  AR 2422-23.   Gonzalez ordered AZ and her fellow captain not to mention the investigation or any sexual harassment allegations to any new players on the team and, if they heard new players talking about it, they were to “shut it down immediately.”  AR 2424.

            As discussed ante, Gonzalez failed to take action when MC screamed at and accused AZ of reporting to Castro and threated to beat her up.  AR 2454.  It was clear he knew what was going on.  AR 2497.

            AZ described the team environment as “toxic,” with coaches demeaning players, mocking their weight, and using fitness as punishment.  AR 2442-43. 

 

            AJ

            AJ went on a road trip to Seattle in September with the team where the coaches were intoxicated, and Gonzalez was present.  AR 3110, 3123.  AJ was accosted by Coach Whitfield who put his hand on her leg under a table while they were drinking.  AR 3110.  This made her uncomfortable, but she did not report it because she had heard that nothing would happen and she would be retaliated against, such as loss of playing time.  AR 3111-12.  AJ did not know if Gonzalez was aware of the incident.  AR 3128. 

            AJ was aware of an “app” which accused a Cerritos College player of sleeping with one of the coaches.  AR 3114.  That player’s mother spoke to Gonzalez, who told the players they needed to own up to sending the app.  AR 3114.  If not, the police would be called, and there would be an investigation.  AR 3115.  They asked for the players phones to see if they had downloaded the app.  AR 3115. Gonzalez talked to the team at a team practice and told them that the allegations were false.  AR 3118. 

Assistant Coach Ramirez flirted with players during practice.  AR 3119.   Gonzalez was around but did not think anything of it.  AR 3119.

 

            CR

After CR reported the events of the December 2013 soccer trip to Dean Smith, Gonzalez angrily confronted CR in front of the entire team, yelling at her that she should not have reported anything to Dean Smith and that she should have come to him first.  AR 2339-40.  After CR’s report, the demeanor of all coaches towards her changed; they stopped communicating with her.  AR 2348.

 

Gonzalez argues that there is no evidence that he has a defect in temperament or a fixed character trait that could not be remediated.  The ALJ did not identify any such trait and her finding rests primarily on Gonzalez’s mere presence at incidents that are not indicative of his knowledge or intent.  AZ claimed Gonzalez “was present” and “in the same vicinity” when Coach Memo flirted with another player (AR 2522), but even she was not paying attention to all they said (AR 2526), and she did not know if Gonzalez actually observed anything (AR 2527).  The ALJ found that “A.J. observed … coaches and players regularly flirting during practice... Though [Gonzalez] attended practices, A.J. noted he did nothing to stop the flirting”.  AR 1873.  However, AJ testified that she only saw AR flirt with players and could not say Gonzalez saw it.  AR 3119.  The ALJ essentially dismissed Gonzalez merely for being present at incidents.  Pet. Op. Br. at 12.

Further, the ALJ misapplied the Morrison factors to the facts.  The ALJ mainly focused on the likelihood of recurrence because Gonzalez received some Title IX training (without evidence of what that training included) and was likely to repeat his conduct.  AR 1896. That does not logically follow.  Pet. Op. Br. at 12.

The ALJ agreed that Gonzalez had no previous discipline and was not given any progressive discipline.  AR 1889.  Gonzalez reported the Escorcia allegations in 2018-19, followed the dean’s direction to investigate player bullying in 2019, supported the District’s Title IX investigations, and sought to follow up with AZ but was told that Raphael would handle it.  Gonzalez also attested to steps he would take to improve communication, compliance and reporting.  Pet. Op. Br. at 12-13.

The ALJ ignored that the fact that CR, AJ, and AZ all testified they did not know what misconduct Gonzalez observed.  The only evidence that players were prevented from reporting was hearsay.  AZ was not deterred from reporting anything and no witness testified that they were prevented by Gonzalez’s conduct from reporting any improper conduct.  OL, AJ, Marquez, Castro, Raphael, and Ramirez all testified that were not aware that Gonzalez did anything to deter reporting of misconduct.  Pet. Op. Br. at 13.

The ALJ’s statements that “Gonzalez had the ability to grant and reduce playing time and was instrumental in assisting players to transition to four-year schools” and that “these decisions were not subject to any oversight or review” does not support her conclusion that he is unfit.  Gonzalez does not differ from other head coaches by having the ability to affect players’ playing time or to help them transfer to four-year schools.  That fact is not evidence that he abused his power.  The ALJ conceded that the District failed to establish the charge of persistent failure to obey school rules and laws.  Coupled with the lack of progressive discipline, the ALJ should have found that the District failed to show any “fixed trait.”  Pet. Op. Br. at 13.

Further, Gonzalez’s oversight of assistant coaches is only one small part of his coaching duties, and not any part of his regular faculty assignment.  Gonzalez did not commit any misconduct in teaching regular classes outside of coaching soccer, and this is evidence of his fitness and unlikelihood of repeating the questioned conduct.  Pet. Op. Br. at 13.

The court does not agree.  AZ described the team environment as toxic.  AZ testified to two instances of misconduct by Gonzalez, one in which Gonzalez affirmatively prevented players from speaking to an investigator and one where he failed to take action in response to MC’s threat to AZ for reporting. 

AJ testified to a road trip to Seattle where the coaches were intoxicated, and Gonzalez was present.  AR 3110, 3123.  AJ was aware of an “app” which accused a Cerritos College player of sleeping with one of the coaches.  AR 3114.  Gonzalez talked to the team at a team practice and told them that the allegations were false.  AR 3118.  There is an inference that he made this statement to discourage reporting.  Finally, Coach Ramirez flirted with players during practice and Gonzalez was around but did not think anything of it.  AR 3119.

Finally, after CR reported the events of the December 2013 soccer trip to Dean Smith, Gonzalez angrily confronted CR in front of the entire team, yelling at her that she should not have reported anything to Dean Smith and that she should have come to him first.  AR 2339-40.  After CR’s report, the demeanor of all coaches towards her changed; they stopped communicating with her.  AR 2348.

The ALJ accurately stated that, although AJ and AZ were on the team together for a period in 2019 and knew each other, they were not friends.  AR 1891.  Their testimonies regarding the environment at Cerritos College were consistent and established that (1) coaching staff would routinely flirt and romantically pursue the players, (2) players believed that if they did anything that made the coaches unhappy, they would lose playing time which would affect their ability to be recruited to other schools, and (3) Gonzalez discouraged players from reporting complaints to District administration.  AR 1891-92. 

Although the ALJ never identified a fixed character trait, the District is correct that Gonzalez’s conduct reveals a fixed character trait of disregard for the well-being and safety of student athletes under his supervision.  Opp. at 17.  Contrary to Gonzalez’s claims, his work as a soccer coach is part of his assignment as a faculty member; he issued grades to women on the soccer team and testified that he teaches soccer.  AR 2455-57.  Gonzalez’s pattern of allowing inappropriate sexual behavior and discouraging reporting meets this definition in that it harmed students and the community.  

As the District argues, Gonzalez’s failure to take responsibility for his actions further supports the finding that he is unfit for service.  Gonzalez not only denied any wrongdoing but also deflected responsibility onto his players and coaching staff.  This lack of accountability demonstrates that he is unable to adhere to the ethical standards required of an educator and coach.  See Opp. at 17.  Gonzalez’s misconduct spanned the four-year period and is an aggravating factor.  His retaliation towards those who reported abuse reflects an unfitness for service that cannot be remedied through disciplinary warnings or lesser measures.  Opp. at 17.

The ALJ’s finding of cause for evident unfitness for service -- meaning that the offensive conduct is caused by a defect in temperament -- is supported by the weight of the evidence.

 

d. Dishonesty

Dishonesty indicates a “lack of honesty or integrity;” a “disposition to defraud or deceive.” (https://www.merriam-webster.com/dictionary/) “Dishonesty necessarily includes the element of bad faith.” Small v. Smith, supra, 16 Cal.App.3d at 456. “[I]t means fraud, deception, betrayal, faithlessness; an absence of integrity; a disposition to cheat, deceive or defraud; deceive and betray.”  Ibid. “Dishonest conduct may range from the smallest fib to the most flagrant lie. Not every impropriety will constitute immoral or unprofessional conduct, and not every falsehood will constitute ‘dishonesty’ as a ground for discipline.” Fontana Unified School Dist. v. Burman, supra, 45 Cal.3d at 220, n. 12.

The ALJ ruled that the District could not backdoor testimony excluded under the four-year rule to sustain a cause for dishonesty.  “Many of the District’s allegations … are related to conduct … before the four-year period. To the extent District did not prove the misconduct, the District also failed to establish that Gonzalez was dishonest when denying [it].”  AR 1894.

The District argues that multiple witnesses testified that Gonzalez not only knew about the inappropriate behavior, but actively participated in covering it up and discouraging players from reporting it.  This includes Gonzalez’s attempt to dissuade CR from reporting misconduct to the administration by confronting her angrily after she went to Dean Smith instead of reporting to him directly.  AR 2339-40.  It includes AZ’s testimony that Gonzalez became visibly upset during the summer of 2019 when players were contacted by District investigators regarding sexual harassment allegations.  Even LS 1 remembered a meeting with Gonzalez where such comments were discussed as inappropriate. AR 1964-65.  Gonzalez’s even acknowledged that there had been previous sexual misconduct allegations concerning the team (which he concluded were false).  AR 3074.  Opp. at 16.

Yet, Gonzalez consistently denied any knowledge of allegations of sexual misconduct occurring within the program.  AR 3070 (Gonzalez never heard complaints about his assistant coaches during trips).  Gonzalez also made false statements during the investigation as he repeatedly denied any knowledge of the ongoing misconduct. These denials directly conflict with the consistent and credible testimony from other witnesses, establishing a clear basis for dismissal on the grounds of dishonesty under section 87732(b).  Opp. at 16.

As Gonzalez argues (Reply at 10), the District’s argument that he can be terminated for denying the incidents that are more than four years old is an effort to end-run around the four-year rule. The argument is circular, as it would render the entire statutory provision meaningless.  Reply at 8.  As for the testimony of CR and AZ, the District only offered evidence that Gonzalez was present when these witnesses observed or experienced harassment.  Gonzalez discouraged reporting but did not acknowledge that sexual harassment had occurred.  Therefore, the contention he knew of sexual harassment and falsely denied it is speculative.  

The weight of the evidence supports the ALJ’s determination that the District did not establish the cause of dishonesty.

 

5. Witness Credibility

Gonzalez argues that the ALJ made unfounded and contradictory credibility determinations for key witnesses without complying with the requirements of Govt. Code section 11425.50(b) to properly justify those determinations.  The ALJ gave CR, AZ, and AJ the benefit of the doubt as to their recollection due to the passage of time but withheld that benefit from OL.  AR 1891, 1875.  The ALJ said AZ had no motive to lie, but she blamed Gonzalez for not realizing her dream of playing Division 1 soccer.  The ALJ ignored the contradiction between AZ’s testimony that Gonzalez was two to three feet away when MC was yelling and Castro’s testimony that AZ told her, immediately after the incident, that Gonzalez was “on the outskirts” about to open the gate.  The ALJ ignored AJ’s motive to fabricate because AJ believed Gonzalez had reneged on a commitment to pay for her CT scan and she blamed him for her problems with class enrollments.  AR 3131–33.  The ALJ disregarded the fact that OL had no motive to fabricate her testimony.  The ALJ improperly considered CR’s testimony in determining Gonzalez’s credibility.  AR 1892.  The ALJ unfairly misconstrued and discounted Gonzalez’s testimony about CR.  AR 1892.  The ALJ accepted Gonzalez’s testimony that he had CR coach high school soccer to motivate her (AR 1887), but then erroneously concluded that doing so was inconsistent with him telling the Lafayette coach she was lazy.  Finally, the ALJ ignored the contradictions to CR’s claims of retaliatory treatment, including Rodriguez’s testimony.  Pet. Op. Br. at 11-12.

Government Code section 11425.50(b) (“section 11425.50(b)”) provides in pertinent part:

 

“(b)... If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.”