Carroll v. Comm'n On Teacher Credentialing

• Decision Date: 23 October 2020
• Docket Number: C083250
• Court: California Court of Appeals Court of Appeals
• Parties: Kathleen CARROLL, Plaintiff and Respondent, v. COMMISSION ON TEACHER CREDENTIALING et al., Defendants and Appellants.

56 Cal.App.5th 365

270 Cal.Rptr.3d 448

Kathleen CARROLL, Plaintiff and Respondent,

v.COMMISSION ON TEACHER CREDENTIALING et al., Defendants and Appellants.

C083250

Court of Appeal, Third District, California.

Filed October 23, 2020

Certified for Partial Publication.^*

Siegel, Yee & Brunner, Dan Siegel, Menlo Park, and Micah Clatterbaugh, Oakland, for Plaintiff and Respondent.

Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Kristin M. Daily, Supervising Deputy Attorney General, Jerry J. Deschler, Deputy Attorney General, for Defendants and Appellants.

HULL, Acting P. J.

SUMMARY OF THE APPEAL

Plaintiff Kathleen Carroll sued her former employer, defendant California Commission on Teacher Credentialing (Commission), for terminating her employment in retaliation for her reporting Commission mismanagement to the state auditor. Prior to bringing this action, plaintiff appealed her termination to the State Personnel Board (Board), claiming the Commission fired her in retaliation for her whistleblower activities. She also filed a separate whistleblower retaliation complaint with the Board. The Board denied her claims.

In this action, plaintiff alleged the Commission's termination of her employment violated the California Whistleblower Protection Act ( Gov. Code, § 8547 et seq., the Act), Labor Code section 1102.5, and 42 U.S.C. section 1983 ( section 1983 ). (Statutory section references that follow are to the Government Code unless stated otherwise.) After the Commission removed the matter to federal court, the district court dismissed the section 1983 claim and remanded the matter to state court. A jury found for plaintiff and awarded her substantial damages.

The Commission appeals. It contends (1) the district court's judgment is res judicata as to this action; (2) the Board's decisions collaterally estop this action; (3) the trial court abused its discretion in evidentiary matters by (a) permitting plaintiff's counsel to question witnesses on and asking the jury to draw negative inferences from the Commission's exercise of the attorney-client privilege, (b) denying the admission of the Board's findings and decisions, (c) denying the admission of after-acquired evidence, and (d) denying the admission of evidence mitigating plaintiff's emotional distress; and (4) the damages award was unlawful in numerous respects.

We reverse the judgment.

Although the district court's judgment was not res judicata and the Board's decisions did not collaterally estop this action, the trial court committed prejudicial error when it allowed plaintiff's counsel to question witnesses on and ask the jury to draw negative inferences from the defendants’ exercise of the attorney-client privilege and did not timely instruct the jury with the mandatory curative instruction provided in Evidence Code section 913. Because we reverse on this ground, we do not address the Commission's other claims of error.

FACTS AND PROCEEDINGS

Plaintiff began working for the Commission in 2006 as a staff counsel. She was assigned to support the Commission's Committee on Credentials (Committee). The Committee reviews discipline cases and makes recommendations to the Commission for appropriate discipline against credential holders.

In 2009, plaintiff discovered that the Commission had a backlog of reports and cases of teacher misconduct. She raised her concerns with her direct supervisor, assistant chief general counsel and defendant Lee Pope, but he took no action. In a meeting with a member of the Commission, plaintiff alleged that defendant Mary Armstrong, the Commission's general counsel, had lied to the Commission about the backlog in August 2009. In a meeting with Dale Janssen, the Commission's executive director, plaintiff said that some serious discipline cases had not been reviewed for two years.

In January 2010, Janssen informed Crista Hill, the director of the Commission's administrative services division, of plaintiff's complaint. The Commission hired an independent investigator to investigate plaintiff's allegations. That investigation began February 1, 2010.

On March 8, 2010, the investigator complained to Hill about plaintiff's behavior toward her. The investigator also forwarded a letter from plaintiff's union representative written on February 12, 2010, in which the representative complained about how the investigator had conducted her interview of plaintiff. Plaintiff had informed the representative that if the interview was indicative of how the investigator intended to investigate plaintiff's concerns, "it would perhaps be best if the Bureau of State Audits were asked to investigate at this time."

The union representative's letter did not disclose that plaintiff had already called the Bureau of State Audit's whistleblower hotline in December 2009 and reported the backlog. She was told to contact her state senator to request a program audit. In February 2010, plaintiff contacted then-Senator Darrell Steinberg's office, and the senator requested the Joint Legislative Audit Committee to authorize an audit of the Commission. That committee approved the audit request in May 2010.

From July to September 2010, plaintiff met with the state audit's team leader six times after work hours. She also gave the team leader hundreds of Commission documents at his request.

Meanwhile, Hill responded to the union representative's letter of February 12 by sending a letter dated March 15, 2010 to plaintiff. Hill expressed her concern about plaintiff's lack of cooperation with the investigator, and she informed plaintiff that continued failure to cooperate with the investigation would result in future disciplinary action.

On June 7, 2010, Hill forwarded the union representative's February 12 letter to Janssen, Armstrong, and others. The next two days, June 8 and 9, Hill and Armstrong began conversations and exchanged emails about seeking legal advice from the Department of Personnel Administration (DPA). That agency provides legal advice to the Commission on all personnel matters. Janssen and Pope were also involved in these communications. Armstrong stated their questions to DPA were about ethical concerns they had regarding plaintiff and her role as a Commission attorney.

The Commission's human resources manager, Katrina Hollingsworth, participated in two meetings in June 2010 where plaintiff was the topic. In the first meeting, Armstrong, Pope, Hill, and Hollingsworth met with an attorney with DPA. In the second June meeting, Janssen, Armstrong, Pope, Hill, and Hollingsworth met, and they decided to lay off plaintiff. Armstrong testified that this meeting was part of a budgeting exercise required by the Department of Finance due to the state's fiscal crisis. Hollingsworth stated the layoff was not a disciplinary action. Hill directed Hollingsworth to move forward with the layoff, but Hollingsworth never received from Hill a required justification for the layoff based on a budget shortfall.

Janssen, Armstrong, Pope, Hill, and Hollingsworth met again in September 2010. The layoff process was taking too long, and they decided to bring an adverse action against plaintiff. Pope took the lead by interviewing Commission employees to document plaintiff's behavior and by writing a rough draft of the notice that would be delivered to plaintiff. Hollingsworth compiled the documentation and wrote another draft of the notice. She saw there was no documentation of progressive discipline against plaintiff.

On November 16, 2010, the Commission terminated plaintiff's employment. The notice of adverse action stated that during her employment, plaintiff had pursued inappropriate personal and romantic relationships with members of the Committee, encouraged a Committee member to disregard Commission confidentiality provisions, acted rudely toward Committee members and coworkers, refused supervisors’ instructions on several occasions, made disparaging remarks to other employees about coworkers and supervisors, and failed to complete several work assignments.

Approximately five months later, on April 7, 2011, the state auditor released the audit of the Commission. Confirming plaintiff's allegations of misconduct, the audit found delayed processing of teacher misconduct cases, serious charges of misconduct in some of the backlogged cases, fear of retaliation among Commission staff, nepotism and favoritism in hiring and promotion, an inaccurate database used to monitor the caseload, and unauthorized closing of cases without required Committee review.

Plaintiff appealed her termination to the Board in November 2010. She contended the Commission and her supervisors retaliated against her in part for raising concerns about the backlog of discipline cases.

In March 2011, plaintiff also filed a whistleblower retaliation complaint with the Board pursuant to section 8547.8, part of the California Whistleblower Protection Act ( § 8547 et seq. ). The Board consolidated the appeal and the complaint, and an administrative law judge held an evidentiary hearing on both matters over 11 days between July 2011 and January 2012.

The Board upheld plaintiff's termination and denied her whistleblower complaint. As to the termination appeal, the Board found that plaintiff had committed serious misconduct and that dismissal was an appropriate penalty. The Board rejected plaintiff's affirmative defense of retaliation. It found that "clear and convincing evidence showed" that the Commission did not retaliate against plaintiff.

As for the whistleblower complaint, the Board found that plaintiff failed to prove that her disclosures of mismanagement were a contributing factor in her termination and that her termination was in retaliation for her disclosures.

Plaintiff did not seek a writ of mandate to review the Board's decision. Instead, she filed this action in Sacramento County Superior Court and sought damages under the Act, Labor Code section 1102.5, and section 1983. In addition to...