Barney v. Comm'n on Prof'l Competence

• Decision Date: 14 September 2021
• Docket Number: D078124
• Court: California Court of Appeals Court of Appeals
• Parties: JOSHUA BARNEY, Plaintiff and Appellant, v. COMMISSION ON PROFESSIONAL COMPETENCE, Defendant and Respondent GROSSMONT UNION HIGH SCHOOL DISTRICT, Real Party in Interest and Respondent.

JOSHUA BARNEY, Plaintiff and Appellant, v. COMMISSION ON PROFESSIONAL COMPETENCE, Defendant and Respondent

GROSSMONT UNION HIGH SCHOOL DISTRICT, Real Party in Interest and Respondent.

D078124

California Court of Appeals, Fourth District, First Division

September 14, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No 37-2018-00022455-CU-WM-CTL, Ronald L. Styn, Judge. Affirmed.

Rothschild Wishek & Sands and Michael Rothschild for Plaintiff and Appellant.

No appearance by Defendant and Respondent.

Dannis Woliver Kelley, Jonathan A. Pearl, and Ingrid A. Meyers for Real Party in Interest and Respondent.

GUERRERO, J.

A student reported that her physical education teacher, Joshua Barney, touched her upper chest, the back of her leg “under [her] butt, ” and her abdomen during class. She reported that during class, he referenced students' bodies with words including “booty ” “nipple, ” and “bikini body.” Barney subsequently admitted to touching the student near her upper chest and her hamstring and admitted that he had previously done the same to other students, claiming he did so for their health and safety. He admitted using the words “booty, ” “nipples, ” and “bikini body” in class, claiming he did so to motivate students and for their safety. Barney's employer, the Grossmont Union High School District (District), notified Barney it intended to dismiss him. After a hearing, the Commission on Professional Competence (Commission) affirmed the dismissal, finding cause existed to dismiss Barney for immoral conduct (Ed. Code, § 44932 subd. (a)(1))^[1] and persistent violation or refusal to obey school laws or reasonable regulations of the District (id., subd. (a)(8)). Barney petitioned the trial court for a writ of administrative mandate. The trial court applied its independent judgment and concluded the weight of the evidence supports the Commission's finding that dismissal for immoral conduct was warranted. On appeal, Barney contends that his conduct does not qualify as “immoral conduct” under section 44932, subdivision (a)(1). We reject Barney's contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Allegations of Misconduct

On January 24, 2017, B.P., an 18-year-old female student at IDEA Center High School, reported to the school nurse that she felt “uncomfortable around Barney, ” her physical education teacher. The school resource officer subsequently asked B.P. to provide a written statement. She wrote the following under penalty of perjury:^[2]

“Barney had me work[]out my arms[, ] and when I came to school the next day[, he] was touching the top of my chest asking me how my muscles felt, then went and grabbed under my butt and told me it was time to work[]out my ‘booty[, ]' then repeatedly told me that the bar when I'm doing a bench press needed to come down and touch my ‘titty' or ‘nipple.' This has been going on for a couple days. I've been in his Maverick [homeroom] for almost two [quarters, ] and he... always gave me a bad vibe[, ] but it was just recently that he started touching me. ‘Your body is going to look so amazing in a bikini this summer[.]' [H]e said that to me while I was working out my legs. In Maverick [H]our, he asked me[, ] ‘[D]o you have a boyfriend?' When I said[, ] ‘No[, ]' he continued to ask me questions about what guys at school liked me, and when I told him what guys I think might like me, he sounded like a jealous boyfriend[, ] then asked me if I drove yet[, ] and when I said ‘No[, ]' he said[, ] “Good[, ] oh I was going to help you find a job[.]' It made no sense.”

B.P. continued her statement, reporting:

“I was wearing jeans with a rip[, ] and he was trying to rub the rip off the right side of my leg. He got really close to my vagina, but I didn't think anything of it at the time, and he didn't touch my vagina so I didn't think anything of it. I kind [of] just let it go. It was about last Thursday that it had happen[ed]. No I did not give him permission to touch me....”

Barney was placed on leave pending an investigation of B.P.'s allegations.

On January 25, B.P. provided an additional written statement:

“I was standing there talking to [a classmate].... Barney lifted up my shirt, play punched me twice, then told me I have a really nice core. Barney then began to help me squat yesterday and stood behind me, placed his hands on my lower hips and began to help me go[.]”

On January 25, female student N.H. signed a statement under penalty of perjury reporting:

“So I have noticed this for a while but didn't think about reporting it until now. Coach Barney has a [tendency] to touch female students inappropriately. He would touch them around the shoulders and boob area and then make comments about our bod[ies] and stare at [their] boobs and butts. I do not feel comfortable around him. He sometimes grabs their thighs and asks if they are sore. I am 99[ percent] sure he touched [B.P.'s] boob on Monday. He makes comments about our bod[ies] in bikinis and stuff.”

On January 27, two female students submitted statements under penalty of perjury in support of Barney. T.S. reported:

“Coach Barney is a good person [and] coach. He always asks if he can touch you to fix your form or show you what muscles you are working when doing this activity. You can ask all of his students and they will agree with what I said.”

B.T. reported:

“No male or female staff member has ever [inappropriately] touched me or has said anything sexual towards me.”

On February 17, 2017, Barney and his attorney met with the District's attorney, District human resources director G. Schwartzwald, IDEA Center school principal D. Napoleon, and assistant principal D. Cuizon. Schwartzwald subsequently reported by email to his supervisor:

“During the investigative meeting, Mr. Barney admitted to the following:

- “He asks permission of the student before touching students, and he often touches students when providing instruction instead of modeling proper technique.

- “He often touches students on the hamstring, which is just below the buttocks.

- “He stated that with two fingers, he touched [B.P.] all along and just below both collar bones, a few inches above her breasts.

- “He does not teach students the names of muscles, or muscle groups, and sexualizes instruction by statements such as: ‘Work your booty, tighten your booty, you can have the best booty ever.'

- “He sexualizes instruction by statements such as: ‘You're going to look great in a bikini, you're going to have a bikini body, even I will have a great bikini body.' Mr. Barney's students are both male and female.

- “Mr. Barney talks to students about exercising to improve appearance, as opposed to improving health and fitness. This is concerning for all students, especially for students with a low self-image.

- “When providing instruction on how to [b]ench [p]ress properly, he sexualizes instruction by saying, ‘Bring the bar down to your [nipples].'

“During the meeting with H.R., Mr. Barney did not admit to any of this being wrong and was not remorseful. He repeatedly stated that his first concern is student safety and that he asks permission before he touches students.”^[3]

B. Notice of Intent to Dismiss Barney

On or about August 10, 2017, the District issued a notice of intention to dismiss and statement of charges and recommendation for dismissal and immediate suspension (Notice). The Notice alleged Barney engaged in actionable conduct, including immoral conduct (§ 44932, subd. (a)(1)) unprofessional conduct (id., subd. (a)(2)), evident unfitness for service (id., subd. (a)(6)), and persistent violations of or refusal to obey District policies (id., subd. (a)(8)).

C. Initial Commission Hearing

Barney requested a hearing before the Commission to contest the allegations. A hearing was held from January 29, 2018 through February 1, 2018. At the hearing, uncontested evidence established that Barney was a permanent certificated employee of the District and most recently assigned as a physical education teacher at IDEA Center High School.

1. Student Testimony

B.P testified that she was a student in Barney's “Maverick Hour” homeroom class during the third quarter of her senior year, the 2016-2017 school year. Although she was not enrolled in his physical education class, she was free at that time, so she agreed to attend physical education class with a friend. The first day she attended, Barney explained how to use one of the workout machines. He pulled the bar “really close to [her] breasts and [said] it needs to hit your tits.” The next day, he touched the top of her chest near her breasts and asked if that area was sore. He also grabbed “under [her] butt” and asked if it was sore. When she was performing squats in class, he walked up behind her, placed his hands on her “lower back” near “the top of [her] butt crack” and “help[ed her] squat.” When she was working out her legs, he commented “your body is going to look so amazing in a bikini this summer.” When she was wearing jeans with a frayed area on her upper thigh, he also tried to “wipe... off” the frayed area and his hand “got really close to [her] private part.” Another time, Barney “lifted up [her] shirt, punched [her] in the stomach, and told [her she] had a really nice core.” He asked her questions “like, if [she] had a boyfriend, what guys at school liked [her], if [she] drove, if [she] had a job, [and] where [she] lived.” B.P. testified that she felt “[d]isgusted” when Barney grabbed her body and felt “gross” when he used words like “booty.” B.P. went to the school nurse, told her what happened, “and asked her if it was inappropriate, because [she] wasn't sure.” An assistant principal came and listened...