Moberg v. Monterey Peninsula
School Dist. Bd. of Ed.





















Filed 1/11/13
Moberg v. Monterey Peninsula School Dist. Bd. of Ed. CA6

>

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

>





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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT




>

ERIC MOBERG, Plaintiff and Appellant, v. MONTEREY PENINSULA UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION, Defendant and Respondent.

H037865 (Monterey County Super. Ct. No. M109124)

>I. INTRODUCTION

Appellant Eric Moberg, a
self-represented litigant, was hired in 2009 by respondent Monterey Peninsula Unified School District (the District) as a special
education teacher for young adult students with moderate to severe href="http://www.sandiegohealthdirectory.com/">handicaps. In 2010, the District issued a statement of
charges and notice of recommendation for dismissal of Moberg as a probationary
certified employee. The statement of
charges informed Moberg that he was being dismissed for cause, including
evident unfitness for service (Ed. Code, § 44932, subd. (a)(5))href="#_ftn1" name="_ftnref1" title="">[1]
and persistent violation of or refusal to obey school laws or regulations (§
44932, subd. (a)(7)). In a
supplemental statement of charges, the District added the additional charge of
dishonesty (§ 44932, subd. (a)(3)).

After an href="http://www.fearnotlaw.com/">administrative hearing, the
administrative law judge (ALJ) upheld Moberg’s dismissal on the charges of
dishonesty (§ 44932, subd. (a)(3)) and persistent violation of or refusal to
obey school laws or regulations (§ 44932, subd. (a)(7)). The ALJ’s decision was adopted by the
District’s governing board. Moberg
challenged his dismissal by filing a petition for writ of mandate in the
superior court. The writ petition was
denied on the grounds that the court’s independent review of the administrative
record showed that the weight of the evidence supported Moberg’s dismissal on
two charges, persistent refusal to obey school laws or regulations (§ 44932,
subd. (a)(7)) and evident unfitness for service (§ 44932, subd. (a)(5)).

On appeal, we understand Moberg to
argue that the judgment should be reversed because (1) there is not href="http://www.mcmillanlaw.com/">substantial evidence to support the
finding that he persistently refused to obey school laws or regulations by
repeatedly sending rude and disrespectful emails to District personnel, and the
allegedly disrespectful emails did not affect students; (2) the District’s
directions to cease sending rude and disrespectful emails to District personnel
had a chilling effect on his free speech rights; (3) the District’s dismissal
constitutes unlawful retaliation for his complaints that the District
discriminated against his students; (4) he was subject to disparate treatment
because a co-worker was not disciplined for sending a disrespectful letter
about him; (5) his exemplary work history constitutes mitigation; (6) the
administrative hearing was untimely held more than 60 days after he demanded
a hearing; and (7) the District wrongly withheld his pay.

For the reasons stated below, we
find no merit in Moberg’s contentions and we will affirm the judgment.

>II. DISMISSAL OF A PROBATIONARY
TEACHER

We
will begin with an overview of the Education Code provisions that govern the
dismissal of a probationary teacher.

“
‘The Education Code establishes four possible classifications for certificated
employees: permanent, probationary,
substitute and temporary.’ [Citation.] The code authorizes the governing boards of
school districts to hire, classify, promote and dismiss certificated employees
(i.e., teachers) (see § 44831), but establishes a complex and somewhat rigid
scheme to govern a board’s exercise of its decisionmaking power.” (Kavanaugh
v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911,
916-917 (Kavanaugh); see also § 44915
[governing boards of school districts shall classify as probationary employees
persons employed in positions requiring certification qualifications for the
school year, who have not been classified as permanent employees or as
substitute employees]; McIntyre v. Sonoma
Valley Unified School Dist. (2012) 206 Cal.App.4th 170, 175 [same].) During the first two years of employment, “a
certificated teacher in a large school district (250 or more students) is a
probationary employee. (§ 44929.21,
subd. (b).)” (Sullivan v. Centinela> >Valley> >Union> >High School> Dist. (2011) 194 Cal.App.4th 69, 74.)

“A
certificated teacher’s classification also governs the level of statutory job
protection the teacher enjoys and controls the level of procedural protections
that apply if he or she is not reelected.
In general, permanent employees may not be dismissed unless one or more
statutorily enumerated grounds are shown.
(§ 44932.) Probationary
employees may not be dismissed during the school year except for cause or
unsatisfactory performance (§ 44948.3), but, on timely notice, ‘may be
non-reelected without any showing of cause, without any statement of reasons,
and without any right of appeal or administrative redress.’ [Citation.]”
(Kavanaugh, >supra, 29 Cal.4th at p. 917.)

Section
44948.3, subdivision (a) provides:
“First and second year probationary employees may be dismissed during
the school year for . . . cause pursuant to Section 44932.” Pertinent here, cause to dismiss a
probationary teacher under section 44932 includes “[d]ishonesty” (§ 44932,
subd. (a)(3)), “[e]vident unfitness for service” (§ 44932, subd. (a)(5)),
and “[p]ersistent violation of or refusal to obey the school laws of the state
or reasonable regulations prescribed for the government of the public schools
by the State Board of Education or by the governing board of the school
district employing him or her” (§ 44932, subd. (a)(7)).

Section
44948.3, subdivision (a) also provides the procedure for dismissal of a
probationary teacher during the school year:
“Any dismissal pursuant to this section shall be in accordance with all
of the following procedures: [¶] name=IAC223DB2023D11DF8041FA548BA07224>(1) The superintendent of the school
district or the superintendent’s designee shall give 30 days’ prior written
notice of dismissal, not later than March 15 in the case of second year
probationary employees. The notice shall
include a statement of the reasons for the dismissal and notice of the opportunity
to appeal. . . . [¶] name=IAC230100023D11DF8041FA548BA07224>name=IAC223DB3023D11DF8041FA548BA07224>(2)
The employee shall have 15 days from receipt of the notice of dismissal to
submit to the governing board a written request for a hearing. The governing board may establish procedures
for the appointment of an administrative law judge to conduct the hearing and
submit a recommended decision to the board.”

Where
the ALJ has rendered an adverse decision that is adopted by the school
district’s governing board, the probationary teacher may seek review in the
superior court by filing a petition for writ of mandate. (Code Civ. Proc., § 1094.5; see, e.g., >Vick v. Board of Education (1976) 61
Cal.App.3d 657, 658.)

>III. FACTUAL AND PROCEDURAL BACKGROUND

>A.
The Statement of Charges and Notice of Recommendation for Dismissal

In
August 2009, the District hired Moberg to teach young adult students (18 to
22 years old) with moderate to severe handicaps in the District’s regional
special education transition program during the 2009-2010 school year.

In
February 2010, the District submitted a statement of charges and notice of
recommendation for Moberg’s dismissal pursuant to section 44948.3. The charges for dismissal included “[e]vident
unfitness for service ([§] 44932, subd. (a)(5))” and “[p]ersistent violation of
or refusal to obey the school laws of the state or reasonable regulations
prescribed for the government of the public schools by the State Board of
Education or by the governing board of the school district employing him ([§]
44932, subd. (a)(7)).”

The
statement of charges specified that the charges were based upon numerous
incidents involving Moberg’s conduct as a teacher, including “mak[ing] it very
difficult” for the program manager to perform her job duties; refusing to recognize the program manager’s
authority; failing to maintain appropriate relations with other District staff;
treating District staff “in a disrespectful and rude manner, often violating
District policy by using e-mail for disrespectful communications”; failing to
comply with District directives to utilize a District-provided communication
device for emergency contacts; and being unwilling or unable to correct
“numerous deficiencies in [his] classroom teaching.”

In
June 2010, the District submitted supplemental charges supporting dismissal,
which stated that the District’s dismissal of Moberg was supported by an
additional cause for dismissal, dishonesty (§ 44932, subd. (a)(3)). The charge of dishonesty was based upon
Moberg’s application for employment with the District, which stated that he had
left his previous employment with the San Mateo County Office of Education “
‘[t]o seek better opportunities and avoid budget and program cuts.’ ” This statement constituted dishonesty,
according to the supplemental charges, because Moberg had actually entered into
a settlement agreement with the San Mateo County Office of Education that
resolved dismissal proceedings against him and required him to resign.

In
a letter dated February 12, 2010, the District informed Moberg that the
District’s governing board had considered the adoption of charges for his
dismissal as a probationary certificated employee at a February 9, 2010
meeting. The letter further informed
Moberg that the governing board had taken action to place him on immediate
suspension without pay and to initiate dismissal proceedings. Moberg was also advised of his right to
request a hearing within 30 days.

After
Moberg timely requested a hearing, the District’s attorneys informed him via
email dated March 15, 2010, that they were working with the state Office of
Administrative Hearings to schedule his dismissal hearing and inquired as to
his availability for a hearing on June 21 and 22, 2010. The record on appeal does not reflect any
objection by Moberg to the proposed hearing dates. Thereafter, the Office of Administrative
Hearings set the hearing for June 21 and 22, 2010.

On
June 7, 2010, the District’s governing board
adopted the supplemental charges supporting Moberg’s dismissal.

B. The
Administrative Hearing

1. Moberg’s Motion for Dismissal

When the
ALJ heard motions in limine on the
first day of the administrative hearing, June 21, 2010, Moberg made an oral
motion for dismissal of the case and his reinstatement as a District employee
on the ground that the hearing was untimely.
Moberg argued that section 44932 requires commencement of a dismissal
hearing for a permanent employee with 60 days, and that the 60-day limit should
also apply to probationary employees.
The District opposed the motion on the ground that the statutes
governing the dismissal of probationary employees did not include a 60-day
limit for commencement of the dismissal hearing.

After
hearing the parties’ arguments, the ALJ stated that she anticipated that the
motion for dismissal would not be granted when she addressed the motion in her
written decision. The ALJ then heard the
parties’ opening statements, which were followed by witness testimony.

2. Hearing Testimony

>Testimony of Leslie Marie Codianne

Leslie
Marie Codianne is employed by the District as the associate superintendent in
student support services. When Codianne
recommended Moberg for employment with the District, she was not aware that he
had resigned his previous employment with the San Mateo County Office of
Education as a term of a settlement agreement.
Since Moberg had stated on his application for District employment that
he left his previous employment to seek better opportunities and to avoid
budget and program cuts, Codianne believed that his application was dishonest.

The
District has a policy concerning employee use of technology that each employee
must sign as part of their contract. The
policy provisions state that violation may result in legal or disciplinary
actions, and also include rules for “network etiquette.” With respect to email, the network etiquette
rules require employees to “be polite, never send or encourage others to send
abusive messages,” “ ‘[r]emember that humor and satire is very often
misinterpreted,’ ” and “ ‘[r]emember all users are human beings. Don’t attack correspondence. Persuade them with facts.’ ” Although the technology policy is given to
all employees, Codianne did not know if Moberg had signed it.

In
an email to Moberg dated October 30, 2009, Codianne instructed him as
follows: “ ‘Eric, I’m going to ask you
to stop this type of e-mail exchange with staff.’ ” The type of email that Codianne was referring
to was the multiple emails that Moberg had been sending to Teresa Poirier, the
District’s program manager for the moderate/severe program, and to Ann
Mitchell-Kilty (Kilty), the District’s executive director of adult education
and Moberg’s supervisor. In his emails,
Moberg disagreed with their decisions and was “constantly referencing and
questioning their decisionmaking.”
Codianne further explained that the “ongoing constant back and forth in
terms of the communication between [Moberg] and Miss Poirier was a constant
breakdown in teamwork.” Moberg also sent
emails accusing other employees of a conspiracy to defame him.

Moberg
did not obey Codianne’s directive to stop sending emails to Poirier that
questioned her decisionmaking as program manager. He also sent Codianne an email stating, “
‘What are we going to do about Ann Kilty’s serially defamatory September 29,
2009, observation critique of my work’?”
In Codianne’s view, Moberg’s email message was not acceptable for an
education professional and did not comply with her directive to stop sending
that kind of email.

On
November 15, 2009, Codianne sent an email to Moberg in which she stated that
she thought he understood that she had requested that he “put an end to e-mail
communications which are aimed at challenging authority figures and questioning
program decisions.” Moberg had sent
emails in which he accused both Poirier and Kilty of defaming him and Codianne
of “knowingly covering for [Poirier’s] and [Kilty’s] false claims against him.”

Thereafter,
Codianne sent an email to Moberg dated December 11, 2009, requesting that he
send all questions, concerns, and requests to Heath Rocha, the District’s
director of student support services. Moberg did not comply with this
directive. For example, he sent a
January 4, 2010 email to Kilty asking for keys to the multipurpose room and
asking, “You do trust [teacher Lorraine Ramirez] and me, don’t you?”

Codianne
also found that Moberg had failed to comply with a District directive that he
have a District phone that he could access in emergency situations. One of the students in Moberg’s classroom was
involved in an emergency situation while Moberg was off campus. The instructional assistant attempted to call
Moberg, but could not get through to him on the Nextel cell phone provided by
the District. The teacher in the
classroom next door was unsuccessful in her attempt to contact Moberg on
another District communications device, a Motorola radio.

As
a result of that incident, Codianne issued a letter of reprimand to Moberg
dated January 25, 2010. In the letter,
Codianne noted that a prior incident had occurred in which Moberg could not be
contacted because he had turned in his Nextel cell phone, and she had directed
him to pick up his Nextel and use it for all communications with District
administrators, staff, and families during school hours and community
activities. The letter concluded, “I am
once again instructing you to use the District Nextel as your primary source of
communication with Administrators, staff and parents. When you are working in
the Community or [Monterey Peninsula College] you should always have your
Nextel turn on to ensure you can be readily reached by District staff.”

Another
safety-related incident involved Moberg using his personal vehicle to transport
a medically fragile student who was wheelchair-bound off campus. Codianne directed Moberg to discontinue using
his own vehicle to transport students off campus and to use either District
vans or public transportation. In
response, she received a January 4, 2010 email from Moberg that began, “I will
certainly comply with your directive . . . .” and concluded, “Also, I am
disappointed that neither you nor the person who brought my generosity and
creativity to your ‘attention’ thanks me or lauds me for solving a problem that
would otherwise require the Shepherd administration to solve, probably at a
sizable expense.”

Codianne
also observed Moberg in the classroom because he had questioned the ability of
his direct supervisor. Her overall
observation was that Moberg only partially met teaching standards, for several
reasons: Failure to provide lesson
plans; failure to align his one-on-one work with the student’s individual
educational goals; the majority of instruction was given by the instructional
assistant; the instructional assistants did not document the students’ actual
performances; and the instructional assistants did not demonstrate any prior
knowledge as to the skills acquisition targeted by each activity.

>Testimony of Ann Mitchell-Kilty

Kilty
is employed as the executive director of the adult education, workability,
regional occupational program, and transition.
She is also the site supervisor at the District’s adult school site,
where Moberg’s classroom was located.
Kilty’s duties included supervising Moberg and observing his performance
as a probationary teacher.

During
her observations of Moberg on September 29, 2009, Kilty saw, among other
things, a lawnmower in his classroom that caused her to be concerned for
student safety. At other times, Kilty
observed a table saw in his classroom.
Kilty made a number of suggestions in her written observations for
improvement of Moberg’s performance.

In
an evaluation dated February 5, 2010, Kilty reported that Moberg partially met
the California standards for the teaching profession. She also stated, under the “Commendations/Recommendations”
section of the evaluation, that “Mr. Moberg has had difficult and occasionally
adversarial relationships with colleagues including peers and administration as
evidenced in numerous email exchanges. [¶] Recommendation: [¶]
Cease email or other communication that is not respectful of
colleagues.” Kilty did not recommend
Moberg for reemployment.

Although
Kilty had previously complained to her supervisor about Moberg’s emails to her,
she never asked him directly to change the tone of his emails.

>Testimony of Teresa Poirier

Teresa
Poirier is employed by the District as a href="http://www.sandiegohealthdirectory.com/">school psychologist and
“program manager for the moderate/severe program.” Her responsibilities as program manager
included overseeing the implementation of the program, which caused her to have
regular interaction with Moberg with respect to adequate supplies, teacher
training and development, and the completion of individual education programs
(IEPS).

On
November 23, 2009, Poirier sent an email to Moberg in which she requested a
copy of his current CPR and First Aid cards because she needed “proof from
everyone who did not attend the CPR/First Aid trainings that they are certified
for our files.” Moberg responded as
follows in a November 23, 2009 email:
“It is in HR, and I do not waive my privacy rights for you to access my
file.” Poirier replied in a November 30,
2009 email, “That’s fine, I just need the dates so we know when they
expire.” Moberg never responded to that
email and never provided any verification that he was currently certified.

In
an email to Poirier dated December 11, 2009, regarding Moberg’s concern that
Poirier had accessed student files in his classroom, Moberg wrote, among other
things: “Lastly, aren’t you taking your
job title of ‘psychologist/program manager’ a little too seriously? You’ve had a pupil personnel services
credential for what, less than two years?”
Poirier found the email offensive and it made her uncomfortable that
Moberg knew when she had received her pupil personnel services credential.

Poirier
subsequently filed a January 6, 2010 formal written complaint to the District
about Moberg’s conduct. The complaint
stated in part, “Over the course of the school year, [Moberg’s] behavior
towards me has become more and more disrespectful and he frequently refuses to
work with me to complete the necessary tasks of the program. [Moberg’s] behavior has created a very
hostile working environment and he has made me very uncomfortable on multiple
occasions. [¶] Due to [Moberg’s] refusal to work with me and
treat me respectfully, the Associate Superintendent of Student Support Services
has directed the Director of Student Support Services to work with [Moberg] in
my place. [Moberg’s] hostile behavior
towards me has made it impossible for me to perform the duties of my job
adequately and ensure the students are supported in a safe and productive
manner.”

Poirier
also provided a list of specific interactions with Moberg to support her
complaint. Among other things, Poirier
reported that Moberg had refused to listen when she asked him to remove the
power tools from his classroom, spoke over her, and raised his voice to her in
the presence of other staff. Poirier
also received a confidential email from one of Moberg’s instructional
assistants asking to be moved to another classroom because Moberg’s classroom
was disorganized.

>Testimony of Marilyn Shepherd

Marilyn
Shepherd is the District’s superintendent.
She signed the statement of charges in support of Moberg’s
dismissal. Regarding the accusation that
Moberg had refused to allow Poirier to access his CPR card, Shepherd stated
that Poirier’s request for the CPR card was appropriate because Poirier’s pupil
personnel services credential authorized her to oversee the moderate/severe
program. As to the accusation that
Moberg had refused to recognize Poirier’s authority as program manager,
Shepherd explained that Poirier also had the right to approve or disapprove
program suggestions made by Moberg.

Among
Moberg’s inappropriate emails referenced in the statement of charges was an
exchange between Moberg and associate superintendent Codianne. On October 30, 2009, Codianne sent an email
to Moberg that stated in part: “I am
going to ask you to ‘STOP’ this type of e-mail exchange with staff. I do not see this method of communication a
means to solve issues in a positive manner.”
Moberg responded in a November 2, 2009 email that stated in part: “I look forward to the meeting I scheduled with
you next week. I welcome the opportunity
to respond directly to what is some sort of ‘Swift Boat’ operation against
me. [¶]
I am not certain what you mean by ‘this type of e-mail exchange,’ but I
will do my best to comply. I would also
point out that my e-mail is a polite response to a less than polite and less
than positive e-mail from our program manager.
. . . [¶] Additionally, to return to the Swift Boat
analogy, I learned from John Kerry’s mistake of not responding when someone
unfairly attacks you. I will not make
that mistake.” Shepherd considered that
to be a “very inappropriate response” that showed disrespect.

Shepherd
helped write the Employee Procedural Handbook that covers the topic of email
etiquette and was given to every employee.

>Testimony of Eric Moberg

Regarding
his reasons for leaving his prior employment with the San Mateo County Board of
Education, Moberg asserted that his statement on his application to the
District—that he left his prior employment “ ‘[t]o seek better opportunities
and avoid budget and program cuts’ ”—was accurate. According to Moberg, the San Mateo County
Board of Education initiated dismissal proceedings against him, but then
abandoned the proceedings without dismissing him and never asked him to resign. Moberg sued the San Mateo County Board of
Education because the new superintendent had retaliated against him for
complaining about her cuts to the special education program at a board meeting.

As
to Poirier’s request that he provide copies of his CPR and First Aid cards,
Moberg stated that he did not give her permission to access the cards in his
personnel file due to “privacy” and because he “didn’t think that it was her
place.” Moberg also stated that he had “told
her what the dates were, and [he] didn’t think that it was serving any
purpose.”

Additionally,
Moberg did not agree that Poirier had any authority to direct him. In his view, they had “a minor personality
conflict.” It was also Moberg’s view
that Poirier was a psychologist and not an administrator, and only
administrators are bosses. Moberg denied
that he had ever raised his voice to Poirier.
He also believed that all of his emails to Poirier involved professional
and educational issues and were not either hostile and abusive or insulting and
unprofessional. In Moberg’s view, his
emails to Poirier did not constitute challenging an authority figure because he
did not consider her to be an authority figure.

Regarding
the accusation that he had failed to remove power tools from his classroom when
Poirier asked him to do so, Moberg asserted that Poirier had said
“ ‘That’s fine’ ” when he explained that the table saw was unplugged and
had no blades. Moberg had intended to
use the table saw for a greenhouse project.
Moberg acknowledged that he kept his personal electric lawnmower in the
classroom as part of a job training program, but explained that he never had
the students practice using the lawnmower while it was engaged.

Moberg
also stated that with respect to “having [an] adversarial relationship with
administration, I would assert . . . that’s, not only my right, but my
duty. I have a right to file a
grievance, of course. I’ve done so. [¶]
And I don’t see the challenging authority in here. [¶] As
far as appropriate relationship with other District staff, I don’t know who
they’re talking about, unless that refers only to [Poirier]. I wouldn’t call her staff.”

Moberg
denied receiving a copy of the District’s email policy until he received the
statement of charges. He also denied receiving
any directives regarding his email communication from anyone other than
Codianne. As to Codianne’s directive
that he send all his email communications to Rocha, Moberg did not comply
because he was either responding to emails from Kilty, his immediate
supervisor, or communicating appropriately with her as his boss.

Moberg
also denied being told that he was to use a District Nextel cell phone
exclusively. He asserted that he had
communicated with his instructional assistant on his personal cell phone about
the student who had an emergency in his classroom while he was off campus, and
therefore the accusation that he had been unavailable at that time was
inaccurate.

As
to transporting a medically fragile student in his personal vehicle, Moberg denied
that he had done so. In his view, Moberg
did not have any “physically
fragile” students in his class. The
student in question rode horses and also rode in the school van every day,
which is less safe, according to Moberg, than his personal vehicle.

Moberg
felt that the District was discriminating against students who were severely
handicapped, based on the position taken by Kilty and Poirier that those
students were “too low” to be in the “workability” job training program.

At
the conclusion of testimony, the parties offered further argument on Moberg’s
motion for dismissal. The ALJ took the
motion under submission and requested written closing arguments.

C. The
ALJ’s Proposed Decision

Following the administrative hearing, the ALJ issued a proposed
decision dated August 12, 2010, that set forth her factual findings and legal
conclusions.

The
ALJ concluded that cause to dismiss Moberg for dishonesty existed, pursuant to
section 44932, subdivision (a)(3),href="#_ftn2"
name="_ftnref2" title="">[2]
based on the findings that Moberg was dishonest in his application for
employment with the District. The ALJ
found that Moberg stated in his application that he had left his prior
employment with the San Mateo County Board of Education to seek better
opportunities and avoid budget and program cuts, although the evidence showed
that he had resigned his prior employment in settlement of a dismissal
proceeding.

The
ALJ also concluded that cause existed to dismiss Moberg for persistent violation
of or refusal to obey school laws or regulations pursuant to section 44932,
subdivision (a)(7),href="#_ftn3" name="_ftnref3"
title="">[3]
based on her findings concerning the District’s Employee Procedural Handbook
instruction to employees “to be respectful and thoughtful when using e-mail,” Codianne’s
directives to Moberg regarding his email communications, and the content of the
emails entered into evidence. However,
the ALJ determined that the evidence regarding Moberg’s management of his
classroom and ability to meet teaching standards did not constitute cause to
dismiss for persistent violation of or refusal to obey school laws or
regulations.

The
ALJ further determined that cause to dismiss Moberg for evident unfitness for
service (§ 55932, subd. (a)(5))href="#_ftn4"
name="_ftnref4" title="">[4]
did not exist, since the evidence did not show that Moberg, although he was “a
person challenging to work with,” had the requisite “temperamental defect.”

In
her discussion section, the ALJ explained her conclusions: “Special education is an area where a team
approach is not only desirable, but essential.
The evidence demonstrated that during [Moberg’s] brief tenure with the
District he was rude and/or disrespectful to various fellow staff members on
numerous occasions. [Moberg’s] e-mail
messages convey the opposite of a good faith effort to be a contributing member
of a team. The record contains three
warnings from his superior to stop using e-mail in the manner that [Moberg] was
using it. [Moberg], however, did not
stop. In addition, it was proven that
[Moberg] was dishonest, and he presented no real evidence of rehabilitation or
even mitigation. By his testimony,
[Moberg] conveyed an attitude consistent with that conveyed in his e-mail
communications and consistent with the conclusion that he felt justified in
both his persistent violation of directives and in claiming that his reason for
leaving the employ of [San Mateo County Board of Education] was not related to
a dismissal proceeding. Accordingly, it
is concluded that the District’s dismissal of [Moberg] was warranted.”

The
ALJ’s proposed decision also included the following order: “[Moberg] is dismissed from his position as a
probationary certificated employee with the [District].” No express ruling regarding Moberg’s motion
in limine for dismissal was included in the ALJ’s decision.

On
September 7, 2010, the District’s Board of Education adopted a resolution to
adopt the ALJ’s proposed decision.

D. The
Petition for a Writ of Mandate

On
November 4, 2010, Moberg filed a petition for a writ of mandate to set aside
the Board of Education’s decision. He
challenged the decision to dismiss him on the following grounds: (1) his exemplary work history is evidence of
mitigation; (2) the dismissal case demonstrated retaliation by the District and
its attorneys for revealing “a policy and practice of discrimination against
his students”; (3) there was no evidence of dishonesty; (4) he did not create a
hostile work environment; (5) there was “ample evidence” of disparate
treatment; and (6) disrespect is not grounds for dismissal. The District filed an answer to the petition
on March 24, 2010.

E. The
Trial Court’s Statement of Decision and Judgment

The
trial court issued a statement of intended decision on August 23, 2011. After conducting a independent review of the
10-volume administrative record, the trial court concluded that “the weight of
evidence contained within the record as a whole supports the dismissal of
[Moberg] pursuant to section 44932, subdivision (a)(5) (evident unfitness for
service) and section 44932 (a)(7) (persistent refusal to obey school laws or
regulations), but that section 44932, subdivision (a)(3) (dishonesty) lacks
evidentiary support here as a ground for dismissal.”

The
showing in support of the charge of dishonesty was insufficient, the trial
court found, because it was based on a single incident—Moberg’s deceptive
application for employment with the District— rather than a “>disposition to deceive.”

Regarding
the charge of Moberg’s refusal to follow school laws or regulations, the trial
court found that “the emails, which led to a breakdown of the team dynamics
essential for a successful special education program, in conjunction with
[Moberg’s] other behavior toward staff and [his] deliberate, repeated neglect
of his teaching duties and violation of the District’s rules support dismissal
based on section 44932, subdivision (a)(7).”

The
trial court specifically found that Moberg’s “emails were rude and
disrespectful and eroded team dynamics; they constituted more than a mere
difference of opinion over the direction of the special education class and
questioning of authority. . . . [¶] [Moberg’s] use of email violated the
[Employee Procedural Handbook]. [Moberg]
used email in an abusive and condescending manner which was clearly calculated
to antagonize. He used language which
belittled the Special Education Program Manager. [Moberg’s] emails imply that he was angry
when he wrote them, and they were certainly disrespectful. He often copied them to persons other than
the addressee.”

The
trial court further found that “[Moberg] also violated a provision of the
District Master Contract, persistently.
Provision IX.B.5 of the District Master Contract provided: ‘Each employee shall maintain appropriate and
effective professional relations with staff, students, parents, and the
community.’ In addition to the emails,
[Moberg] raised his voice and attempted to ‘talk over’ the Program Manager
[Poirier] when she attempted to speak with him.
The ALJ specifically found that Poirier’s testimony that this occurred
on two occasions was more credible than [Moberg’s] denial that it
occurred. This conduct adversely
affected fellow staff (see, for example, the complaint sent by Poirier dated
1/4/10 . . .), and thereby the students’ learning environment.”

The
trial court’s finding that the evidence supported the charge of refusal to
follow school laws or regulations was also based on the evidence showing that
Moberg had failed to use a communication device issued to District staff to
enable them to communicate in emergencies, including his failure to comply with
the requirement after promising to do so.

Regarding
the charge of evident unfitness to teach, the trial court determined that the
ALJ had erred in concluding that the evidence did not support Moberg’s dismissal
on that charge. The court found that
Moberg’s conduct satisfied the test for unfitness articulated in >Woodland Joint Unified School Dist. v.
Commission on Professional Competence (1992) 2 Cal.App.4th 1429 because it
demonstrated “a defect in temperament—his inability to work with
collaboratively with a team, which is essential to special education.”

The
trial court rejected Moberg’s defense of retaliation, in which he argued that
he was dismissed in retaliation for his “protected disclosures . . . of racial
discrimination, mismanagement of the Workability program, and failure to
provide a light or fan in the bathroom.”
The court determined that “the administrative record does not
demonstrate by a preponderance of the evidence that the protected activities
were a contributing factor in the alleged retaliation.” Additionally, the court found that the
defense of retaliation was not raised during the administrative hearing, and,
in any event, Moberg had failed to produce any evidence that “the alleged discrimination
was on account of the alleged disclosure.”

The
trial court also rejected Moberg’s claim of disparate treatment on the grounds
that he had not raised disparate treatment as a defense during the
administrative hearing, and the evidence suggested that the District “was
motivated to dismiss [Moberg] due to his inability to work with others as a
contributing team member, which is essential to special education.”

Finally,
the trial court rejected Moberg’s claim that the District violated his right to
a hearing within 60 days pursuant to section 44932. The Court determined that Moberg had waived
this claim by failing to timely object to the available dates for a hearing,
which were chosen by the Office of Administrative Hearings.

Moberg
filed a notice of intention to file a motion to vacate the judgment on
September 7, 2011. The judgment entered
on September 15, 2011, adopted the trial court’s intended statement of decision
and denied Moberg’s writ petition with prejudice. On October 5, 2011, Moberg filed a href="http://www.fearnotlaw.com/">motion to vacate the judgment, which the
trial court denied on December 21, 2011.
Moberg filed a timely notice of appeal from the judgment on December 1,
2011.

>IV. DISCUSSION

A. Standard
of Review

Before
addressing Moberg’s contentions on appeal, we will outline the applicable
standard of review. Where, as here, the
superior court has exercised “its independent judgment upon the record of an
administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior
court’s findings if substantial evidence supports them. [Citations.]”
(Pasadena Unified School Dist. v.
Commission on Professional Competence (1977) 20 Cal.3d 309, 314 (>Pasadena).)

Under
the substantial evidence standard of review, “[i]n reviewing the evidence, an
appellate court must resolve all conflicts in favor of the party prevailing in
superior court and must give that party the benefit of every reasonable
inference in support of the judgment.
When more than one inference can be reasonably deduced from the facts,
the appellate court cannot substitute its deductions for those of the superior
court. [Citation.]” (Pasadena,
supra, 20 Cal.3d at p. 314; Governing
Bd. of Ripon Unified School Dist. v. Commission on Professional Competence
(2009) 177 Cal.App.4th 1379, 1384.)

Accordingly,
if there is substantial evidence to support one of the grounds upon which the
superior court based its determination of cause to dismiss a teacher, we will
affirm the judgment. (See >San Dieguito Union High School Dist. v.
Commission on Professional Competence (1985) 174 Cal.App.3d 1176,
1180.) As we will discuss, we determine
from our review of the administrative record that substantial evidence supports
the trial court’s finding that cause exists to dismiss Moberg for persistent
violation of or refusal to obey school laws and regulations (§ 44932, subd.
(a)(7)).

B. Analysis

1. Dismissal for
Persistent Violation of or Refusal to
Obey School Laws or Regulations

The
trial court determined that the evidence in the administrative record supported
Moberg’s dismissal for cause on the ground of persistent violation of or
refusal to obey school laws or regulations (§ 44932, subd. (a)(7)), based on
Moberg’s (1) abusive, rude, disrespectful, and condescending emails, which
violated the District’s email policy as set forth in the Employee Procedural
Handbook; (2) repeated neglect of his teaching duties; (3) persistent violation
of Provision IX.B.5 of the District Master Contract, which requires employees
to maintain appropriate and effective professional relations with staff,
students, parents, and the community; and (4) failure to use a communication
device issued to District staff to enable them to communicate in emergencies,
which included his failure to comply with the requirement after promising to do
so.

On
appeal, Moberg argues there is not substantial evidence to support the finding
that he persistently refused to obey school laws or regulations by repeatedly
sending rude and disrespectful emails to District personnel, and the allegedly
disrespectful emails did not affect students.
He further argues that he could not be dismissed for sending emails
“about discrimination against his students and, then, retaliation against
himself. Punishing him for making such
complaints would chill his and other teachers’ desire to complain of wrongdoing
by superiors, contrary to public good.”
We also understand Moberg to argue that the District’s policy that
employees’ email communication should be “polite” is impermissibly vague,
constitutes an impermissible prior restraint on speech, and violates a
teacher’s right to freedom of expression.

The
District responds that Moberg failed to timely raise these arguments at the
administrative hearing, and, in any event, there is substantial evidence to
support the trial court’s findings. We
agree.

>First Amendment Issue

To
the extent Moberg argues that the trial court’s finding of persistent violation
of or refusal to obey school laws or regulations cannot be sustained on the
basis of the email evidence because that would violate his First Amendment
right to free speech, we determine that he has forfeited the issue.

“name=SearchTerm>Appellate
courts generally will
not consider matters
presented for the
first time on
appeal. [name="SR;6215">Citations.]” (name="SR;6216">Franz v. Board of Medical Quality Assurance (1982) 31
Cal.3d 124, 143.)
An argument raised for the first time on appeal is generally deemed
forfeited. (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th
212, 226.) Moreover, “[t]he general rule
that a legal theory may not be raised for the first time on appeal is to be
stringently applied when the new theory depends on controverted factual questions
whose relevance thereto was not made to appear at trial. [Citation.]”
(Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780; see
also Fox v. State Personnel Bd. (1996)
49 Cal.App.4th 1034, 1039 (Fox)
[failure to raise issue in writ proceeding waives issue on appeal unless issue
involves pure question of law on undisputed facts].)

In
the present case, the requisite First Amendment analysis precludes this court
from addressing Moberg’s First Amendment claim for the first time on
appeal. “In determining whether
a discharge impermissibly
infringed upon the employee’s name="SR;7161">First Amendment rights,
the threshold question is whether the name="SDU_728">employee’s
speech related to a matter of public concern.
[Citations.] This question is
‘determined by the content, form and context of a given statement, as revealed
by the whole record.’ [Citation.]” (Southern
Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713,
727-728 (Southern Cal.).)

“If
it is determined that speech, which an employee alleged caused his termination,
did concern matters of public concern, the court must then name="SDU_729">‘balance . . . the interestsname="SDU_675"> of the [employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an employer, promoting the
efficiency of the public services it performs through its employees. ’ [Citation.]
In applying this test, the court must consider facts concerning ‘the
manner, time and place of the employee’s expression . . . the context in which
the dispute arose . . . .
[Citations.] . . . [And] whether the statement impairs
discipline by superiors or harmony among co-workers, has a detrimental impact
on close working relationships for which personal loyalty and confidence are
necessary, or impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.’
[Citations.]” (>Southern Cal., supra, 30 Cal.App.4th at pp. 728-729.)

Even
assuming that Moberg’s email correspondence concerned matters of public
concern, we would still find that he has forfeited the First Amendment issue.
Since Moberg did not raise his First Amendment issue in the trial court or in
the administrative proceedings (except very briefly in his closing argument),href="#_ftn5" name="_ftnref5" title="">[5]
no factual findings were made concerning “ ‘the manner, time and place’ ” of
Moberg’s emails, the context, or whether the emails interfered with the regular
operation of the District. (>Southern Cal., supra, 30 Cal.App.4th at p. 729.)
We therefore cannot determine that the material facts for purposes of
First Amendment analysis were undisputed.

Moreover,
our record does not reflect that Moberg raised a First Amendment issue in the
trial court during the writ proceedings.
Moberg has therefore forfeited his First Amendment issue unless he has
shown that the issue falls within the exception set forth in >Fox because it “is one of public
interest or the due administration of justice, and involves a pure question of
law on undisputed facts.” (>Fox, supra,
49 Cal.App.4th at p. 1039.)
However, Moberg has not, and cannot, show that the Fox exception applies because, as we have discussed, the record of
the administrative proceedings is insufficient for a determination on appeal
that the material facts for purposes of First Amendment analysis were
undisputed. We therefore determine that
Moberg has forfeited his claim that his dismissal violates his First Amendment href="http://www.mcmillanlaw.com/">right to free speech.

>Substantial Evidence

As
we will discuss, substantial evidence supports the trial court’s finding that
Moberg was properly dismissed for cause on the ground of persistent violation
of or refusal to obey school laws or regulations (§ 44932, subd. (a)(7)),
based, among other things, on Moberg’s abusive, rude, disrespectful and
condescending emails, which violated the District’s email rules and policy as
set forth in the Employee Procedural Handbook, as well as the District’s
“Employee Use Of Technology” policy.

Section
44932, subdivision (a)(7) provides: “No
permanent employee shall be dismissed except for one or more of the following
causes: [¶] . . . [¶] Persistent violation of or refusal to obey
the school laws of the state or reasonable regulations prescribed for the
government of the public schools by the State Board of Education or by the
governing board of the school district employing him or her.”

Decisions
construing section 44932, subdivision (a)(7) have determined that a pattern of
refusal to obey rules is required to uphold a teacher’s dismissal on that
charge. “Persistence, in the sense
intended, is referable to past conduct.
The Legislature undoubtedly intended that opportunity for correction be
available and refrained from providing for dismissal for a single violation of
regulations, or until repeated violations could be considered persistent.” (Midway
School Dist. v. Griffeath (1946) 29 Cal.2d 13, 18 (Midway) [construing former § 13521]; see also Governing Board of the
Oakdale Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77, 84
[construing former § 13403, subd. (g), now § 44932, subd. (a)(7)]; >Board of Education. v. Mathews (1957)
149 Cal.App.2d 265, 272.) The California
Supreme Court in Midway further
instructed that “[a] teacher who is ‘continually
insubordinate . . . may seriously affect the discipline in a
school, impair its efficiency, and teach children lessons they should not
learn.’ [Citation.] The emphasis is on ‘persistent’ and
‘continually.’ ” (Midway, supra, at
pp. 18-19.)

In
the present case, the District’s email rules, on which the charge against
Moberg of persistent violation of or refusal to obey school rules was partially
based, were admitted into evidence at the administrative hearing. The pertinent rules are included in the
District’s Employee Procedural Handbook and the “Network Etiquette” provision
of the “Employee Use Of Technology” policy.

The
Employee Procedural Handbook includes the following email policy: “10.1 E-MAIL
PROTOCOLS [¶] E-mail is for sharing information, not for
communication. If the content of your
e-mail is something you would not like to see printed in a newspaper or
distributed publicly, it should not be sent by e-mail. [¶] >Before you write, ask yourself [¶]
-Is this the best way to send this information? (E-mail is a permanent record and >NOT confidential. It can be used in court and
could be in the headlines of a local newspaper.) [¶]
-What is the purpose? (Do you
need a reply or is it information only?)
[¶] -Should I calm down
first? (Sometimes we write an e-mail
response while we are still upset by the topic.
Perhaps a phone or face-to-face conversation would be better after you
cool down.) [¶] -To whom is it going? (Is the message for one person or for a
group? Check the tone of your message
and the spelling of names and e-mail addresses.) [¶]
-Can you keep it brief (2-3 sentences) or will it require a lot of
explanation? [¶] -Would a phone call or face-to-face be
better? (Sometimes it is faster and
conveys your tone better.) [¶] E-mail
Etiquette and Format. [¶] -Make your subject line clear about whether
action is needed and the topic you are writing about. [¶]
-Keep the message brief and to the point. [¶]
-Sign it. Include your first and
last name and contact info at the end of your message. [¶]
-E-mail etiquette suggests that full caps should not be used as it gives
the impression that a person is shouting.”

The “Network Etiquette” provision of the “Employee Use Of
Technology” policy, which Superintendent
Shepherd testified was “part of the Board’s policy and also part of each
employee[’]s contractual obligation”
states in pertinent part: “You
are expected to abide by the generally accepted rules of network
etiquette. These rules include (but are
not limited to): [¶] a. Be
Polite. Never send, or encourage others
to send, abusive messages. [¶] . . . [¶] e.
Other Etiquette Considerations:
[¶] *Be brief. Few people will [b]other to read a long
message. [¶] . . . [¶] *Remember that humor and satire is very often
misinterpreted. [¶] . . . [¶] *Remember, all users are human beings. Don’t attack correspondents; persuade them
with facts.”

The trial court found that Moberg’s emails violated the District’s
rules regarding email communications because his emails “were rude and
disrespectful and eroded team dynamics; they constitute more than a mere
difference of opinion over the direction of the special education class and
questioning of authority. . . . [¶] [Moberg’s] use of email violated the handbook
policy . . . [He] used email in an
abusive and condescending manner which was clearly calculated to
antagonize. He used language which
belittled the Special Education Program Manager. [His] emails imply that he was angry when he
wrote them, and they were certainly disrespectful. He often copied them to persons other than
the addressee.”

Having reviewed the administrative record in its entirety, we> determine that substantial evidence
supports the trial court’s findings regarding Moberg’s emails. > The
evidence in the administrative record includes a number of Moberg’s email
exchanges with District staff, as well as Codianne’s directions to Moberg
regarding his use of email.

On
September 24, 2009, shortly after he was hired, Moberg sent an email to Rocha,
which he copied to Kilty, Poirier, and Codianne, that included this final
paragraph: “I chose [the District] as a
place to work over several other offers largely because I had the impression
when I met you and [Codianne] that you were the most competent, compassionate,
and organized leadership team I had encountered. I also had the impression that you all were
above petty personality conflicts and counterproductive power battles. I hope I was right.”

On
October 29, 2009, Moberg responded to an email from Poirier in which she
stated, among other things, “I thought it was understood that we were not going
forward with new projects until all other elements of the program were
fulfilled. In addition, we don’t have
money in our budget to put towards this project which I don’t feel . . . is
aligned with the goals of our program. . . . [¶] . . . Apparently we are having a communication
break down and need to meet with [Kilty] and [Codianne] so we are all clear as
to the direction of our program and determine how you and I will work together
effectively to provide the students with the best program possible. [¶] Do
either of these dates [October 30, 2009, or November 4, 2009] work for everyone
to meet?” Moberg responded in an email
the same day, which stated in part, “[D]id you miss the part about the project
making a profit, not costing money?
[¶] Lastly, are you actually
suggesting that this is such an important matter that we all need to meet on
less than 24 hours notice?”

Codianne
sent an email to Moberg on October 30, 2009, that stated, “Eric, I am going to
ask you to ‘STOP’ this type of e-mail exchange with staff. I do not see this method of communication a
means to solve issues in a positive manner. . . .” However, Moberg did not comply with this
directive to, in essence, comply with District rules and policy regarding email
etiquette and network etiquette. He
responded in a November 2, 2009 email that stated in part: “I look forward to the meeting I scheduled
with you next week. I welcome the
opportunity to respond directly to what is some sort of ‘Swift Boat’ operation
against me. [¶] I am not certain what you mean by ‘this type
of e-mail exchange,’ but I will do my best to comply. I would also point out that my e-mail is a
polite response to a less than polite and less than positive e-mail from our
program manager. . . . [¶] Additionally, to return to the Swift Boat
analogy, I learned from John Kerry’s mistake of not responding when someone
unfairly attacks you. I will not make
that mistake.”

Then,
in a November 4, 2009 email to Codianne, Kilty, and Rocha regarding Poirier’s
November 4, 2009 email indicating her concerns about Moberg’s purchase order
spending at Target and the completion of IEPs, Moberg stated: “I have never spent one penny at Target. [¶]
Can any of you stop [Poirier] from repeatedly defaming me? [¶]
Can any of you stop [Poirier] from continuing to pretend she is my
supervisor and bossing me around? I have
written over 300 IEPs in my career and acted as Administrative Designee on 100
more. [Poirier] has had her PPS [pupil
personnel services] credential for a little over a year.”

Thereafter,
on November 6, 2009, Moberg sent an email to Codianne that stated, among other
things, “What are we going to do about Ann Kilty’s serially defamatory
September 29, 2009 observation critique of my work. In other words, do we want such an inaccurate
document in my personnel file and subject to subpoena at a Due Process
hearing? Wouldn’t this leave our
attorney with the dilemma of either a) allowing the document to impeach my
competence or b) questioning Ann Kilty in front of the Administrative Law Judge
to impeach her honesty?”

Codianne’s
subsequent email to Moberg on November 15, 2009, stated, “I thought you
understood that I have requested that you put an end to e-mail communications
which are aimed at ‘challenging’ authority figures and questioning program
decisions. I hope this is very
clear!” Moberg responded in a lengthy
email that included comments such as the following: “The real issue here is honesty—do we have a
credentialed psychologist who is consistently dishonest? [¶] I
accepted the job thinking I would be working with Heath and you primarily. Instead, I find myself in an extremely
hostile work environment with [Poirier] and [Kilty] regularly sabotaging my
hard work, and making false statements to me and about me. I suggest you direct some of your passionate
indignation toward those two ‘team’ members.”

Codianne’s
response, in a November 16, 2009 email to Moberg, stated: “I am very uncomfortable with the tone and
intent of this e-mail. I have asked you
to stop the ‘challenging’ e-mails to all staff including Ms. Kilty. . . .”
Again, Moberg did not comply with Codianne’s email directive. For example, on December 11, 2009, he sent an
email to Poirier that stated in part:
“Lastly, aren’t you taking your job title of ‘psychologist/program
manager’ a little too seriously? You’ve
had a pupil personnel services credential for what, less than two years? I’ve held all sorts of job titles . . . .”

Codianne
then directed Moberg, in a December 11, 2009 email, “I am requesting that ALL
questions, concerns, requests, etc. for your classroom and students go directly
and immediately to Heath Rocha.” Yet
again, Moberg did not comply. On January
4, 2010, he sent an email to Kilty asking for the keys to the multipurpose room
and commenting, “You do trust [teacher Lorraine Ramirez] and me, don’t
you?” Later, Ramirez sent a February 10,
2010 email to Codianne that stated:
“Staff have been bombarded with emails from [Moberg] and have been
distracted by the going ons [sic] of
Mr. Moberg. Staff are complaining that
he is sending it not only to their groupwise accounts but to their personal
email addresses. Even after staff have
asked to be taken off his list, he has persisted.”

We
find that these emails demonstrate Moberg’s repeated sending of abusive and
attacking email communications to District staff during his employment with the
District and constitute evidence demonstrating his persistent violation of or
refusal to obey school rules regarding email etiquette and network etiquette as
stated in the Employee Procedural Handbook and the “Employee Use Of Technology”
policy. Accordingly, we conclude that
the trial court’s ruling that Moberg was properly dismissed for cause on the
ground of persistent violation of or refusal to obey school laws or regulations
(§ 44932, subd. (a)(7)) due to his repeated violation of the District’s email
rules and policy is supported by substantial evidence.

Having
reached this conclusion, we need not consider Moberg’s additional claims that
the trial court erred in finding that the weight of evidence supported his
dismissal for evident unfitness for service (§ 44932, subd. (a)(5)).