JUNNIE VERCELES, Plаintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
B303182
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 4/19/21
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. 19STCV09932). California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Lia Martin, Judge.
APPEAL from orders and a judgment of the Superior Court of Los Angeles County, Lia Martin, Judge. Reversed and remanded.
Wyatt Law and Andrew M. Wyatt for Plaintiff and Appellant.
Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall; and Anthony J. Bejarano, Assistant General Counsel, Los Angeles Unified
Junnie Verceles appeals the order granting the Los Angeles Unified School District‘s special motion to strike his complaint for discrimination and retaliation in violation of California‘s Fair Employment and Housing Act (FEHA) (
FACTUAL AND PROCEDURAL BACKGROUND
1. Verceles‘s Complaint
Verceles, who is Filipino and was 46 years old when his complaint was filed in March 2019, had been employed by the District as a teacher since 1998. According to his complaint, on December 1, 2015 he was “removed from his school and placed on reassignment with the lоcal district office . . . due to an allegation of misconduct.” Verceles was not told the specifics of the allegation, only that he had been accused of misconduct involving a student.2
Verceles remained on paid suspension, which he calls “teacher jail,” for more than three years, during which time he was told to stay home and report his hours to the District. He was not allowed to teach or pursue continuing education or professional development.
In November 2016, while the District‘s investigation of his alleged misconduct was ongoing, Verceles filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH). Thе DFEH case was closed on March 7, 2017.
On March 13, 2018 the District‘s Board of Education voted to terminate Verceles‘s employment. Verceles alleges the District‘s investigation preceding his termination was “neither prompt nor thorough. The investigator interviewed only 8 students out of a class of over 30. Had the investigator done a proper investigation, the truth would have been revealed that one of the students was pressuring others to lie about what happened.”
Verceles alleges three causes of action for violation of FEHA: age discrimination, race and national origin discrimination and retaliation. The first cause of action, agе discrimination, is based on disparate impact. Verceles alleges the District “has a continuing policy, pattern and practice of age discrimination against credentialed employees over the age of 40 with respect to performance evaluations, pay, promotions, and other terms and conditions of employment. [The District] has implemented these policies and practices despite knowing that they have a longstanding disparate impact on teachers
The second cause of action, race and national origin discrimination, is also based on a disparate impact theory. The allegations repeated, almost verbatim, the allegations in the first cause of action, but stated the disparate impact of the District‘s policies was based on race and national origin.
The third cause of action, retaliation, alleged the District had terminated Verсeles‘s employment as retaliation for his November 2016 complaint to DFEH.
2. The District‘s Special Motion To Strike
On June 4, 2019 the District moved to strike the complaint pursuant to
In his opposition Verceles argued the wrongful acts upon which his complaint was based were discrimination and retaliation, which are not protected activity. The District‘s investigation was evidence of that disсrimination and retaliation but not the gravamen of the complaint. In support of the merits of his claims, Verceles submitted the declaration of a financial analyst who had reviewed the District‘s data regarding teachers assigned to “teacher jail.” The analyst found “a statistically significant bias against teachers aged 46 and over, when compared against the general teacher population in California” during an unspecified time period. While the graphs and tables attached to the analyst‘s declaration referred to the race and national origin statistics of teachers in the District and the state, the declaration itself did not contain any conclusions as to those statistics.
After hearing argument on the special motion to strike on June 26, 2019, the court granted the motion, finding Verceles‘s cause of action arose from “the investigation process which includes plaintiff‘s removal from the classroom . . . . The acts alleged to constitute the discrimination and retaliation are all part of the proceeding, from the initial investigation to plaintiff‘s termination.” The court also found Verceles had failed to establish a probability of prevailing on his claims. First, the disparate impact claims were not supported by the statistical data provided because “[t]here is no evidence that the
On October 14, 2019 the District moved for an award of attorney fees pursuant to
Verceles filed a notice of appeal on December 19, 2019.
DISCUSSION
1. Verceles‘s Appeal of the Section 425.16 Order Is Properly Before Us
The District contends Verceles‘s appeal of the order granting the
As the District correctly points out, an order granting a special motion to strike is immediately appealable. (See
Relying on the 60-day deadline, the District argues Verceles‘s appeal is untimely and we are without jurisdiction to hear it. However, the District has submitted no evidence a notice of entry or file-stamped order was served on Verceles. Accordingly, Verceles‘s notice of appeal, filed within 180 days of the entry of the order granting the special motion to strike, is timely.3
In the alternative the District argues Verceles‘s notice of appeal from the judgment does not encompass an appeal of the order granting the special
“[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” (Luz v. Lopes (1960) 55 Cal.2d 54, 59; accord, K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 882;
2. The Trial Court Erred by Granting the District‘s Special Motion To Strike
a. Section 425.16, the anti-SLAPP statute4
Pursuant to
In ruling on a motion under
“A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant‘s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A ‘claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.‘” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson); accord, Park, at p. 1060.) “‘[T]he mere fact that an action [or claim] was filed after protected activity took place does not mean the action [or claim] arose from that activity for the purposes of the anti-SLAPP statute.‘” (Park, at pp. 1062-1063; see Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 [“a claim does not ‘arise from’ protected activity simply because it was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim“].) “To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.‘” (Wilson, at p. 884; accord, Park, at p. 1063.)
b. Verceles‘s complaint does not arise from the District‘s protected activity
To prove unlawful discrimination based on disparate impact, Verceles must show “that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354, fn. 20; accord, Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1404-1405 [disparate impact plaintiff must prove “‘that facially neutral employment practices adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are “in operation . . . functionally equivalent to intentional disсrimination“‘“].) To prove unlawful retaliation Verceles must show the District subjected him to an adverse employment action for impermissible reasons—namely, because he exercised his right to file a complaint with the DFEH. (See Wilson, supra, 7 Cal.5th at p. 885; Yanowitz v. L‘Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [“in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer‘s action“].) Accordingly, each of Verceles‘s causes of action depends on an allegation the District subjected him to an adverse employment action for an improper reason. Identifying the particular adverse employment action or actions at issue defines the relevant conduct for purposes of a
The District urges us to define the alleged adverse action broadly to encompass the entirety of its investigation into Verceles‘s purported misconduct, arguing, “[A]ll alleged adverse actions here, including the investigation, paid administrative leave and ‘teacher jail,’ and termination, were inextricably tied to the investigation, which is the adverse employment action complained of by Plaintiff in the Complaint.”
As in Park, Verceles‘s discrimination and retaliation claims depend upon the decisions to reassign him and terminate his employment rather than on any communications made during the investigation or the investigation as a whole. Verceles has not alleged the entirety of the investigation was undertaken for discriminatory or retaliatory reasons. In fact, he has conceded the District was obligated to conduct an investigation upon receiving allegations of misconduct. Nor has Verceles alleged he was harmed by the undertaking of the investigation itself. The discrimination claims do not allege the District has a practice and policy of conducting investigations that has a disparate impact on protected groups; instead, it is the specific practice and policy of reassigning teachers to “teacher jail” that is alleged to have an adverse impact.5 Likewise, Verceles does not allege the investigation was retaliatory,
Having identified the wrongful conduct at issue, the question is whether that conduct constituted protected activity within the meaning of
written or oral statement made in connection with the proceeding.
Again, Park is illustrative. In Park the employer made an argument similar to the one the District makes here—“its tenure decision and the communications that led up to it are intertwined and inseparable.” (Park, supra, 2 Cal.5th at p. 1069.) Thus, the employer argued, even if the decision to deny tenure did not constitute an oral or written statement, it must still be considered protected activity because it was “inextricably intеrtwined” with the communications that were part of the official proceeding. (Id. at p. 1070.) The Supreme Court disagreed and rejected the argument that “every aspect of those [official] proceedings, including the decision to impose discipline, is protected activity for anti-SLAPP purposes.” (Id. at pp. 1069, 1070 [rejecting “proposition that a suit alleging an entity has made a discriminatory decision necessarily also arises from any statements by individuals that may precede that decision, or from the subsequent communication of the decision that may follow“].) Instead, as discussed, the Court held
The District‘s position finds some support in Jeffra v. California State Lottery (2019) 39 Cal.App.5th 471. In Jeffra the plaintiff sued his public employer for retaliation after he had been investigated and placed on administrative leave. Unlike the allegations in this case, the Jeffra plaintiff argued the investigation had been initiated for an improper purpose—retaliation for his whistleblower complaint. Based on those allegations, our colleagues in Division Eight held the adverse employment action
The District‘s reliance on Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574 is similarly unpersuasive. In Okorie the plaintiff, a teacher with the District, alleged causes of action for discrimination, retaliation and harassment based on a variety of conduct, including statements made by the school‘s principal, a notice sent to the credentialing commission and reassignment to “teacher jail.” The court distinguished the case from Park, stating Park‘s complaint was based on the single act of denying him tenure, whereas Okorie‘s complaint was based “collectively on a handful of decisions . . . and a wide array of allegedly injury-causing statements and communicative conduct by Defendants.” (Okorie, at p. 593.) The court held the statements were protected within the meaning of
In the absence of any oral or written statements from which Verceles‘s claims arise, the District‘s decisions to place Verceles on leave and terminate his employment are not protected activity within the meaning of
The District alternatively argues the adverse employment actions taken against Verceles were protected activity because they were “conduct in furtherance of the exercise of the constitutional right of petition or the
Purporting to rely on Wilson, the District contends, because “a public school district is mandated by law to take all reasonable steps to protect its students,” it follows that “investigation of abusive teachers must be considered its pronouncement to the community, i.e. speech, that it has done so.” In Wilson the plaintiff was a cable news writer and producer who filed a complaint for FEHA violations after he was fired due to allegations of plagiarism. The network made two related arguments as to why its termination of plaintiff‘s employment was protected activity within the meaning of
As to the network‘s first argument, the Supreme Court stated claims related to a news organization‘s staffing decisions would not be subject to a special motion to strike unless the staffing decision had a “substantial effect on the news organization‘s ability to speak on public issues.” (Wilson, supra, 7 Cal.5th at p. 896.) Because the network had failed to show Wilson had sufficient editorial control to affect its аbility to speak on public issues, the Court held his termination was not protected activity. (Id. at pp. 896-897.) As to the network‘s second argument, the Court stated a news organization‘s exercise of free speech included the right to “maintain and enforce standards of journalistic ethics.” (Id. at p. 897.) Finding the network had made a prima facie case its termination of Wilson‘s employment was based on plagiarism, the Supreme Court found the decision qualified as conduct in furtherance of its exercise of free speech in connection with a public matter. (Id. at p. 898.)
Nothing in the Wilson Court‘s analysis supports the District‘s position here. Even if the District adequately demonstrated its staffing decisions concеrn a matter of public interest, it has not identified any recognized constitutionally protected right of free expression that a school district has in its teacher
Supreme Court rejected an argument similar to the one the District makes here, noting the defendant had failed “to explain how the choice of faculty involved conduct in furtherance of University speech on an identifiable matter of public interest. . . . Whether the grant or denial of tenure to this faculty member is, or is not, itself a matter of public interest has no bearing on the relevant questions—whether the tenure decision furthers particular University speech, and whether that speeсh is on a matter of public interest—and cannot alone establish the tenure decision is protected activity under
The District alternatively contends its investigations into alleged teacher misconduct, including its use of “teacher jail” as a form of administrative leave, constitute conduct in furtherance of protected petitioning or speech activity within the meaning of
CPC review is the final administrative step in the process of terminating a permanent school employee. The argument the District has crafted to support its special motion to strike notwithstanding, presumably its investigation of Verceles‘s alleged assault of one of his students was undertaken to determine whether the District‘s board should dismiss him, not simply to defend that decision before the CPC if a hearing were requested. (See Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1069, 1065 [“it as proper and appropriate to protect prelitigation investigation as it is to protect prelitigation letters that demand settlement or threaten legal action discovery, and postlitigation settlement talks,” but conduct that constitutes “a separate and distinct activity” from litigation is not protected]; accord, People ex rel. Harris v. Aguayo (2017) 11 Cal.App.5th 1150, 1163.) Moreover, it is the teacher‘s option whether to seek CPC review of a school district‘s decision to terminate his or her employment. (
DISPOSITION
The judgment of dismissal and the orders granting the District‘s special motion to strike and awarding it attorney fees are reversed. The cause is remanded with directions to the trial court to enter a new order denying the special motion to strike. Verceles is to recover his costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.