Memo

February 5, 2023

Memo

  • That 87740 does not apply because the district does have a bargained for agreement that includes a grievance process, though the grievance process is not applicable to the the basis for our client’s claim (non-compliant notice)

In California Teachers Assn. v. Butte Community College Dist. 48 Cal. App. 4th 1297 (1996)

The district gave the appellant Earl McGhee a notice of termination. The appellant claimed the district’s termination did not meet the requirements of the law as it failed to give reasons as to the termination. The district board on its part claimed that there were budget constraints. The appellant also claimed he had not been given a 

Heidary v. Antelope Valley College District, No. B221905 (Cal. Ct. App. Nov. 9, 2010).

Heidary appealed against his dismissal by the respondents claiming it was discriminatory and unlawful. He also claimed that Section 87740 did not apply in his case as there was an existing grievance procedure. 

The court held, that before initiating any procedures under Section 87740 before a court, there had to be exhaustion of the administrative procedures. Section 87740 can only apply where the claimant on his/her own action has filed a suit thus waiving the right to use the internal grievance procedure. Here the court cited Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 where it was held that, by filing a charge of discrimination with DFEH and receiving a notice of right to sue, he had exhausted all administrative prerequisites to suit. In this case the procedure was not completed.

Thus, the failure to follow the set grievance procedures and other internal procedures will bar one from filing a suit. The provisions of section 87740 while read together with those of Section 87610.1(b) apply to cases where it is alleged that the termination was unreasonable, violated the law or was a misinterpretation or misapplication of policies and procedures. 

Petero v. Contra Costa Community College District, A119783 (Cal. Ct. App. Jan. 23, 2009).

In this case, the appellant sought to compel the respondents to reinstate her claiming that they had recently dismissed her unlawfully. 

The court held that Section 87740 sets forth a procedure for resolving the employee’s challenge to a board decision not to reemploy him or her. The procedure set forth therein is for “a hearing to determine if there is cause for not reemploying him or her for the ensuring year.” The hearing in these internal procedures is limited to the “to a reasonable person was unreasonable” or that in making the tenure or non-reappointment decision, the district violated, misinterpreted, or misapplied, any of its policies and procedures concerning the evaluation of probationary employees. 

The court cited Ortega v. Contra Costa Community College Dist., 67 Cal. Rptr. 3d 832 – Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 2007 and Daniels v. Shasta-Tehama-Trinity J. Comm. College, 212 Cal. App. 3d 909 – Cal: Court of Appeal, 3rd Appellate Dist. 1989, where the main object of Section 87740 proceedings is where the issue is the interpretation or application of the policies and procedures. Thus, it is not applicable in the present claim. 

This case relates to the notice of by the district board which failed to give reasons and not a misinterpretation of policies. It was thus not a misinterpretation of policy which would be in essence something inapplicable under section 87740. 

Mt. San Antonio College Faculty Assn. v. Board of Trustees 125 Cal. App. 3d 30 (1981)

Here the Faculty association sought to have the Board of Trustees set aside their earlier decision and to thus reemploy Mr. Goodell who had been employed in September 1977.

The court held, that, under Section 87610.1, the failure to give notice is interpreted as the decision to retain the teacher as an employee. The notice to terminate employment should be accompanied with reasons as to why such a termination is given. 

Cousins v. Weaverville Elementary School District, 24 Cal. App. 4th 1846 – Cal: Court of Appeal, 3rd Appellate Dist. 1994

Here the plaintiff sued the defendant challenging her dismissal from the school. She alleged that the dismissal was unlawful as it failed to give reasons for her termination, hence it did not meet the meaning of a notice under the Education code. 

The court in citing Burgess v. Board of Education (1974) 41 Cal. App.3d 571 [116 Cal. Rptr. 183] and Karbach v. Board of Education (1974) 39 Cal. App.3d 355 [114 Cal. Rptr. 84].) held that, in the event that a permanent or probationary employee is not given the notices and a right to a hearing, he or she shall be deemed reemployed for the ensuing school year. 

In the case of our client, the notices submitted to her via mail and in-person did not contain the reasons as to the non-renewal of her employment. This has been captured in 87610 and is the crux of her case against the education board. 87610 is only applicable where there is a proper and legal notice. 

The notice given here does not give reasons as to termination and is hence not a notice under the requirements of law. It is hence not an issue of the evaluation policies but the nature of the notice given. It is not a matter subject to the proceeding under Section 87740. 

 

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