School District Cannot Unilaterally Dismiss Teacher Complaint

The Third Appellate District affirmed a judgment. The court held that once a hearing was scheduled regarding a school district’s accusation against a tenured teacher, the school district could no longer unilaterally rescind that accusation, and the Commission on Professional Competence was bound to hear and decide the case.

Stockton Unified School District filed an accusation against tenured teacher David Boliou, specifying conduct it claimed merited Boliou’s dismissal. Boliou denied the conduct and demanded a hearing, which the district scheduled.

After the district and Boliou vigorously litigated the case for 18 months and the district received some unfavorable rulings, the district moved to dismiss the charges before the hearing on the merits.

Boliou objected, arguing that he wanted a ruling that he should not be dismissed from his employment. Such a ruling would entitle him to reasonable attorney fees and costs.

The Commission on Professional Competence granted the district’s motion to dismiss the charges.

The trial court granted Boliou’s petitions for writ of administrative mandate. The court ordered the commission to modify its dismissal order to include a determination that Boliou should not be dismissed. The court also ordered the school district to pay Boliou’s reasonable attorney fees and costs.

The court of appeal affirmed, holding that Boliou was entitled both to a determination that he should not be dismissed and to his reasonable attorney fees and costs.

Education Code §§44941, 44943, and 44944(a) provide that if a teacher demands a hearing on disciplinary charges and the governing board of the school district exercises its option to schedule a hearing instead of rescinding the charges, “the hearing shall be commenced ...” Further, pursuant to §44944(b) and (c)(1), the hearing must be conducted by the commission, and “the commission shall prepare a written decision containing ... a disposition that shall be, solely, one of the following: [¶] (A) That the employee should be dismissed. [¶] (B) That the employee should be suspended for a specific period of time without pay. [¶] (C) That the employee should not be dismissed or suspended.” Pursuant to §44944(e)(2), if the commission determines that the employee should not be dismissed or suspended, the governing board “shall pay the expenses of the hearing . . . and reasonable attorney’s fees incurred by the employee.

These statutes compelled the conclusion that the commission erred when it granted the district’s motion to dismiss the charges. The court explained that the district’s sole opportunity to rescind the charges against Boliou was when it notified him of the charges against him and he demanded a hearing. Once Bolious made that demand and the district scheduled a hearing, the comprehensive statutory scheme provided no mechanism by which the district could thereafter unilaterally prevent that hearing from going forward. The district could not unilaterally extinguish the administrative proceedings merely by dismissing the charges. At that point in the proceedings, the commission was bound to both hear the case and issue a decision.

Even if, as here, no evidence is taken, the commission was nonetheless bound to comply with the governing statute. Given the district’s dismissal of all charges against Boliou, the court found the only appropriate disposition was a finding that Boliou “should not be dismissed or suspended.” Once the commission entered that finding, Boliou was also entitled to his reasonable attorney fees and costs, pursuant to §44944(e)(2).

Boliou v. Stockton Unified School District

Medical Marijuana not within the Protection of the ADA: the Federal Controlled Substance Act Prevails

The Ninth Circuit has held that use by disabled Californians of marijuana for medically supervised pain relief under state law was prohibited by federal law and thus came within the illegal-drug exclusion of the Americans with Disabilities Act.

Plaintiffs used marijuana to treat their pain under the supervision of their physicians; their medical use of marijuana was allowed under state law, but prohibited by the federal Controlled Substances Act (CSA).

The cities in which plaintiffs lived had taken steps to close marijuana dispensing facilities that operated within their boundaries, one by ordinance and the other by public nuisance action. Plaintiffs were concerned about the possible shut-down of the collectives on which they relied for marijuana.

Plaintiffs sued the cities, alleging that their actions violated the Americans with Disabilities Act (ADA), since 42 U.S.C. §12132 prohibits discrimination in the provision of public services to any “qualified individual with a disability.”  Plaintiffs also alleged that conventional medical services, drugs, and medications had not alleviated the pain caused by her impairment and that she had thus obtained a physician’s recommendation to use marijuana to treat her pain.

The court found that James medical marijuana use necessarily was not protected by the ADA because the ADA defines “illegal drug use” by reference to federal rather than state law and the former does not authorize James’ medical marijuana use.

The cities correctly interpreted the language of §12210(d)(1) – which excepts from the illegal-drug exclusion the use of a drug taken under supervision by a licensed health care professional or other uses authorized by the CSA or other federal law – under which James’ state-authorized medical marijuana use was not excepted because it was not authorized by the CSA or another provision of federal law, although the language of the provision lacked plain meaning and its legislative history was inconclusive.

Further, the statutory context revealed the intent of Congress to define “illegal use of drugs” by reference to federal rather than state law.  The CSA is explicitly mentioned twice in §12210(d)(1) and §12210(d)(2) provides that the term “drug” means a controlled substance as defined in the CSA.

As to the legislative history, the ADA was passed in 1990 and there was no reason for Congress to have anticipated later changes in state law – such as California’s 1996 statute – that facilitated professional supervision of drug use that federal law did not permit.  In any event, there was a long-standing, strong federal policy against the use of medical marijuana outside the limits of federal law itself.

The court found nothing in the legislative history to suggest that Congress intended to extend ADA protection to state-authorized but federally prohibited uses of marijuana that fell outside a comprehensive federal regulatory regime.  Neither did anything in the ADA or its history suggest that Congress sought to exclude from the definition of illegal drug use such drug use as was sanctioned by state law but unauthorized by federal law.

James v. Costa Mesa

After More Than Three Years: Brinker is Here

Employers got most of what they wanted in the long-awaited Brinker wage-and-hour ruling issued Thursday, April 12 by the California Supreme Court.  But workers won some victories, too, and the court appeared to stick up for class actions more broadly, in contrast to some recent U.S. Supreme Court rulings.

The court ruled that employers need only permit meal breaks for employees — not ensure that they actually get taken.  Employers are therefore not require to police or babysit their employees.

The court further rejected worker arguments that meal breaks must come no more than five hours apart. That piece of the ruling was surprising, given that employers had been so worried about the court's signals during oral argument that they asked, and were permitted, to file supplemental amicus curiae briefing on whether a tighter rule would apply prospectively only.

School District May Be Liable For Harassment By Teacher

In C.A. v. Hart Union High School District, the California Supreme Court held that a public school district could be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.

Some Recent Cases of Note

1. California's overtime laws extend to nonresident employees performing work in the state for California-based employers. Sullivan v. Oracle, 11 C.D.O.S. 8243, and Sullivan v. Oracle, 11 C.D.O.S. 14910.

2. Fixed payments per item sold can constitute "commissions" for purposes of the commissioned employee exemption. Areso v. CarMax, 11 C.D.O.S. 6050 (2011).

3. Employers may terminate or discipline employees who make false claims of sexual harassment. Joaquin v. City of Los Angeles, 12 C.D.O.S. 950.

4. Sabbatical leave may be considered vacation pay under California law, thereby entitling employees to a payout of unused sabbatical time upon termination. Paton v. Advanced Micro Devices, 11 C.D.O.S. 9945.

5. The Fair Labor Standards Act prohibits retaliation against workers who make oral complaints regarding violations of the act. Kasten v. Saint-Gobain Performance Plastics, 11 C.D.O.S. 3419.

6. Administrative exemption is not limited to employees who advise management at the policymaking level. Harris v. Superior Court, 12 C.D.O.S. 129.

7. Class action waiver in employment arbitration agreement is unlawful under the National Labor Relations Act. D.R. Horton, 357 NLRB 184 (Jan. 3, 2012).

8. Employee not guaranteed a right to reinstatement under CFRA when leave extends beyond 12 weeks. Rogers v. County of Los Angeles, 11 C.D.O.S. 10423.

9. An employee is not entitled to receive two hours of "reporting time pay" for short meetings held on an employee's day off if the meeting is scheduled in advance and lasts at least half of the time scheduled. Aleman v. AirTouch Cellular, 11 C.D.O.S. 15258.

10. Employer is liable for discrimination when nonbiased decision maker is influenced by others harboring discriminatory intent. Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011)