Public Entities

• Posey v. Lake Pend Oreille Sch. Dist. No. 84

The ninth Circuit made it harder for public entities to prevail on motions for summary judgment when the court decided that the question of whether a public employee's speech is protected by the First Amendment is a mixed question of fact and law.

Facts: Plaintiff was employed as a "security specialist" for the School District. He believed that the District's safety and emergency policies were inadequate. Plaintiff spoke with the school Principal about his concerns, but the Principal did not respond directly to Plaintiff. Plaintiff then wrote a letter to several District administrators outlining his specific concerns with examples in support thereof. It was undisputed that Plaintiff wrote the letter at home, on his own time and using his own resources. However, the parties disputed whether Plaintiff wrote the letter as part of his official employment responsibilities. A year after writing his letter, Plaintiff's job was eliminated, and he was not hired into the "new" position created for a "preventative specialist." Plaintiff brought suit under 42 U.S.C. § 1983 asserting that the elimination of his position and failure to rehire him into the new position was retaliation in violation of his First and Fourteenth Amendment rights. The District moved for summary judgment arguing that Plaintiff's speech was not protected under the First Amendment since his speech (letter) was made pursuant to his duties in his role as "security specialist." The District Court agreed with the School District and the Ninth Circuit reversed.

Holding: The Ninth Circuit concluded that the question of whether a public employee's speech is protected by the First Amendment is a mixed question of fact and law. The Court found summary judgment inappropriate here where (1) the Plaintiff spoke out on a matter of public concern, (2) the state lacked adequate justification for treating an employee differently that a member of the general public, and (3) there was a genuine issue of material fact as to whether the speech fell within the scope and content of Plaintiff's job duties.

• Sanchez v. County of San Bernadino

Facts: Sanchez was a high-ranking employee for the County, and considered a rising star. After it was discovered she was involved in a physical and romantic relationship with a labor union president she previously negotiated with, her supervisor insisted she resign. The parties entered into a written severance agreement, which provided neither side would disclose the facts and issues that gave rise to her resignation, unless required by applicable law. Newspaper articles then appeared detailing her resignation and relationship that quoted county representatives. Sanchez filed suit for breach of contract. The County filed a motion for summary judgment against the breach of contract because it had a duty to disclose Sanchez’s misconduct and therefore the confidentiality provision was void against public policy. The trial court granted the motion on the ground that the confidentiality provision was void against public policy. Sanchez appealed arguing the County had no duty to disclose the information and the severance agreement was not void against public policy.

Holding: Reversed. Under the Public Records Act, “every person has a right to inspect any public record.” However, where there is no request under the Public Records Act of a particular document, there is no duty to disclose the information, and the County was not required by law to disclose the information. Thus, the severance agreement preventing the disclosure of the information, except as may be required by applicable law is not void against public policy.

• Achene v. Pierce Joint Unified School District

Facts: Achene was a probationary teacher during the 2006-2007 school year for the district. She received two evaluations that did not indicate her performance was unsatisfactory, but instead cited areas for improvement. The district then provided written notice to Achene of her unsatisfactory performance just one week before she was dismissed during the school year. The trial court determined the district failed to timely notify Achene that her performance was unsatisfactory or work with her to improve her performance. The district appealed on the grounds the requirement for ninety-day written notice of unsatisfactory performance does not apply to probationary employees.

Holding: Affirmed. The dismissal of probationary employees during the school year requires timely written notice of instances of particular unsatisfactory performance and an opportunity to correct these deficiencies. Here, since Achene was only provided a week of notice and not given the opportunity to correct these deficiencies, her dismissal during the school year for unsatisfactory performance was determined void.

• Tucker v. Grossmont Union High Sch. Dist.

Under Ed. Code § 45298 a laid-off employee has a right to reemployment in preference to a new applicant regardless of the laid-off employee's class, so long as the laidoff employee is qualified for the position.

Facts: In 1982, Plaintiff began his employment with the School District as a general maintenance worker and was promoted to maintenance supervisor. He left the District for several years, worked for another District and earned his MBA. When Plaintiff returned to the District in 1996, he held the position of director of maintenance and operations. He then assumed more responsibilities and his job title became director of operations, safety and special projects. Due to lack of work and/or funds, Plaintiff's position was eliminated in April 2005, and he was laid off. That same month, Plaintiff applied for the position of maintenance manager, which according to the District was a position of a lower class. Although Tucker was qualified for the position, the District hired an individual who had never worked for the Districit. Plaintiff Petitioned the Court for a writ of mandate and declaratory relief, claiming that he had a right to reemployment preference over the new applicant. The District argued that Ed. Code § 45298 when read in conjunction with § 45308, provided preference for laid-off employees only within the class in which he was formerly employed.

Held: The court held that Tucker had the right to reemployment preference over the new applicant in any job for which he applied and for which he was qualified. Section 45298 specifically describes the preferential rights of laidoff employees for rehire with respect to new applicants. And, § 45308, which explains the order in which employees in the same class must be laid off and rehired, does not limit reemployment rights under -45298 with respect to new applicants to a job only within a particular classification. Since Plaintiff was qualified for and applied for the maintenance manager position, he was entitled to preferential reemployment rights over new applicants.

• Fitzgerald v. Barnstable Sch. Committee

Facts: The Fitzgeralds’ daughter was a kindergarten student in the Barnstable, Massachusetts school system who rode the bus to school. She informed her parents that a third grade boy bullied her into lifting up her skirt. The parents met with principal and a school investigator who could not substantiate the claims. No action was taken. Later, the girl reported escalating harassment to her parents. The parents once again met with the principal but, again, the school could not substantiate and no action was taken. The parents sued under Title IX, 42 U.S.C. § 1983, & state law, alleging the school inadequately responded to allegations of harassment.

The U.S. Supreme Court granted review to resolve a split in the circuits over whether Title IX precludes use of § 1983 to redress unconstitutional gender discrimination in schools.

Holding: Title IX does not preclude section 1983 action alleging unconstitutional gender discrimination in schools. Because Title IX does not include a comprehensive remedial scheme, the U.S. Supreme Court concluded that it was not meant to be an exclusive mechanism for addressing gender discrimination in schools or a substitute for § 1983 suits as a means of enforcing constitutional rights.

• Education - Discrimination Donovan v. Poway Unified Sch. Dist.

To prevail on an Education Code Section 220 claim for peer sexual orientation harassment against the School District, the Plaintiff must apply the stricter Title IX elements, including actual knowledge of the harassment rather that the FEHA's elements and negligence standard of "known or should have known."

Facts: Plaintiffs (two students) brought a Section 201 harassment claim against the District seeking monetary damages. The trial court appliend the elements of a FEHA harassment claim as the same elements applicable to a Section 210 claim. Under FEHA, a Plaintiff would only have to prove that the District "knew or should have known" of the harassment and failed to take immediate and appropriate corrective measures to remedy the harassment. The Plaintiff's prevailed against the District under these elements. The District appealed and argued that the more strict elements of Title IX should be applied under a Section 201 harassment claim. The Appellate Court agreed.

Holding: In order to prevail on a peer sexual orientation harassment claim under Section 201, the student must prove the elements of a Title IX discrimination claim; namely, (1) "severe, pervasive and offensive" harassment which deprives the student of the right to equal access to educational benefits and opportunities; (2) the school district had actual knowledge of the harassment" and (3) the district acted with deliberate indifference in the face of that knowledge.

By applying the elements of Title IX instead of the FEHA, the court assured that school districts are not responsible for the underlying student/peer misconduct, but rather only for its "own misconduct determined by its own deliberate indifference to known acts of harassment."