Mize–Kurzman v. Marin Cmty. Coll. Dist.

• Decision Date: 25 April 2012
• Docket Number: No. A126937.,A126937.
• Citation: 2012 Daily Journal D.A.R. 348,12 Cal. Daily Op. Serv. 455,202 Cal.App.4th 832,33 IER Cases 404,136 Cal.Rptr.3d 259,275 Ed. Law Rep. 882
• Court: California Court of Appeals Court of Appeals
• Parties: Pamela MIZE–KURZMAN, Plaintiff and Appellant, v. MARIN COMMUNITY COLLEGE DISTRICT, et al., Defendants and Respondents.

202 Cal.App.4th 832

136 Cal.Rptr.3d 259

275 Ed. Law Rep. 882

33 IER Cases 404

12 Cal. Daily Op. Serv. 455

2012 Daily Journal D.A.R. 348

Pamela MIZE–KURZMAN, Plaintiff and Appellant,

v.MARIN COMMUNITY COLLEGE DISTRICT, et al., Defendants and Respondents.

No. A126937.

Court of Appeal, First District, Division 2, California.

Jan. 10, 2012.

Review Denied April 25, 2012.

Horowitz & Rubinoff, Oakland, Martin M. Horowitz, Stephanie Rubinoff, for Appellant.

Law Offices of Larry Frierson, Larry Frierson, for Respondents.

KLINE, P.J.

INTRODUCTION

Plaintiff Pamela Mize–Kurzman appeals from a judgment in favor of defendants Marin Community College District and its Board of Trustees (collectively “district”), following a jury trial on her claims that the district was liable under two California “whistleblower” protection statutes, Labor Code section 1102.5 and Education Code section 87160 et seq. Plaintiff contends the trial court committed reversible error in jury instructions it gave that were patterned upon federal law; that the errors were compounded by erroneous answers to the jury's questions; that the court unduly pressured the jury to return a verdict; and that the court committed reversible error when it allowed the district to present evidence of plaintiff's retirement pension on the issue of her mitigation of damages and instructed the jury that it could determine whether such retirement pension should reduce any damages. We shall conclude that three of the court's instructions were erroneous and require reversal and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND¹

Plaintiff has been employed by the district since July 1, 1973. From 1981 through June 30, 2007, she was employed as an administrator. She was promoted to Dean of Enrollment Services in 1994, pursuant to the settlement of a previous lawsuit against the district. (The Dean was an “at will” position.) In July 2004, Frances White became the Superintendent and President of the District. Plaintiff was one of several Vice Presidents and Deans who reported directly to White. In January 2005, in addition to plaintiff's regular duties as Dean of Enrollment Services, Development and Special Programs, White assigned plaintiff the duties of the recently vacated position of Dean of Student Development and Special Services. Plaintiff was also appointed to act as interim Dean for Social and Behavioral Sciences. On January 29, 2006, Anita Martinez was hired as the Vice President of Student Learning and was plaintiff's direct supervisor.

A. Alleged Disclosures

Beginning in April 2006, plaintiff made four claimed disclosures of what she believed to be violations of law or regulations to various individuals and entities:

1.) Alleged tampering with the hiring process. In April 2006, plaintiff reported to White her concerns that there had been an interference in the hiring process for the position of Director of Student Support Services and English as a Second Language (ESL). Plaintiff was on the interview committee that was to recommend candidates to White. The committee met and unanimously recommended one candidate. The Human Resources clerk immediately made a call and then informed the committee that the “President” wanted it to recommend an additional candidate, and the committee did so. The Human Resources clerk then told the committee that the President wanted three candidates from which to choose. The committee refused to recommend a third candidate. After the committee made its recommendation of two candidates, plaintiff sought out White, who was not on campus. Plaintiff realized the Human Resource clerk had been talking to Martinez and not to White. Plaintiff met with Martinez and told her what had happened in the committee. Martinez was visibly angry and told plaintiff that Martinez wanted a specific person for the position. On April 8, 2006, plaintiff sent an e-mail to White, stating that the committee had “the strong opinion that the job was being set up for a specific candidate.” Although plaintiff did not advise White that she thought the interference by Martinez was illegal, she believed White would know this because White's website contained an Education Code section stating jobs could not be promised to someone and that the process was required to be fair and open. Plaintiff testified that she viewed Martinez's apparent effort to include a particular person as a finalist as “tampering with the process.” She believed Martinez's interference was a violation of the Education Code and she wanted to warn White.

2.) La Academia grant. Also in April 2006, plaintiff reported to Martinez and White that she believed certain provisions of the La Academia Project in the Educational Excellence Innovation Fund (EEIF) proposal for 2006–2007, were unconstitutional in targeting scholarship moneys to Hispanic students. Plaintiff had no involvement with the EEIF program, which was unrelated to her department. Plaintiff had heard that the EEIF proposal granted scholarships from district funds for Latino students only. (White, who had created the EEIF at the College of Marin, testified that was not in fact the case.) Plaintiff was concerned this might be an illegal use of public funds “to fund a specific ethnic group or provide services for a specific ethnic group....” She checked with the district's outside legal counsel (colloquially referred to as “Bob Henry's office”), and was given general advice that “the Latino student scholarship fund violates the California Constitution if it awards scholarships derived from public funds to students based solely upon their ethnicity or national origin.”

On April 10, 2006, plaintiff sent an e-mail to White, copying Martinez and others, incorporating the response from outside legal counsel that “A Latino student scholarship fund violates the law if it awards scholarships derived from public funds to students based solely upon their ethnicity or national origin” and stating she had confirmed this with Bob Henry's office. Martinez at some point met with the grant proposer and pointed out that publicly funded programs, including the EEIF, could not discriminate against students and that the grant had to be rewritten so that it would serve all qualified and eligible students. The grant was revised to take out the singular reference to Latinos. White testified that she told plaintiff the EEIF was not for scholarships. Martinez testified she already knew about these types of programs, that what plaintiff said about the unlawfulness of using state money in targeted scholarships was accurate, but that Martinez did not need to see a legal opinion about it. Martinez verbally ordered plaintiff not to contact outside counsel without checking with her first.

3.) Registration without payment of fee. In July and August 2006, plaintiff told Martinez that she believed the district's new policy of allowing students who owed fees to register even if they had outstanding unpaid fees, and also without paying the then current registration fee, was illegal. Plaintiff based her assertion on information she had received in the past from Bob Henry's office and from the Chancellor's Office. She also conducted an internet survey on a list-serv of colleagues on this issue. On August 24, 2006, plaintiff sent an e-mail to Martinez raising the issue of the legality of the directive. By late August, White knew plaintiff was questioning whether it was appropriate for the district to register students who owed fees to the college. Plaintiff testified she was “fairly certain” the policy directive from Martinez violated the Education Code. She believed there was a significant risk of liability to the district and could result in penalties upon the college. On September 19, 2006, plaintiff reviewed a legal opinion on the Chancellor's Office Web site and sent an e-mail to Ralph Black, Counsel for the Chancellor's Office, on the topic. Plaintiff received a response from Black, citing an opinion of the Chancellor's Office on October 26, 2006, and forwarded it to Martinez, who shared it with White. White knew of this opinion that the district should not allow indefinite deferral of fees. At trial, the legal experts for the parties disagreed as to whether a community college was required to deny enrollment to students who owed money.

4.) Citizenship inquiries. In February 2006, Martinez had directed plaintiff to remove questions asking students to provide citizenship and residency information from the credit class application for admission. Based on information she had received from Bob Henry's office and the Chancellor's Office over the years, plaintiff told Martinez she believed the policy was illegal. In March, Martinez made statements at a meeting of the college's Management Council that plaintiff attended, stating that the college did not have to ask for citizenship information on the noncredit application. In connection with this directive, plaintiff inquired of Black of the Chancellor's Office whether student residency information should be retained for noncredit students. In March 2007, plaintiff informed Martinez that the information was a legally required element of data collected by the California Community Colleges Chancellor's Office. At trial, the parties' experts disagreed as to whether community college districts were required to classify every student, including those enrolling exclusively in noncredit classes, as either residents or nonresidents.

B. Asserted Retaliation

Following plaintiff's April 10, 2006 e-mail to White and others stating that she believed the La Academia Project violated the California Constitution, White responded to her that the EEIF was “not for scholarships.” A trail of e-mails ensued and on April 11, 2006, Martinez directed plaintiff in writing “per my last email, could you please delay further inquiry until we discuss how best to proceed.” On April 11, 2006, White directed plaintiff to “please stop the email...