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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4885
Experience:  Extensive experience representing employees and management
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Good Afternoon, I am a retired public school teacher/administrator

Resolved Question:

Good Afternoon,
I am a retired public school teacher/administrator who has been doing some substituting in my old district. On Wednesday afternoon, March 13th, I was assigned to work in a 6th grade classroom that had several very disruptive and defiant students. I gave four girls a "time-out" from their P.E. activity due to their continued disrespect. At the end of the activity, I indicated I wanted them to return to the with me in close supervision. One of the girls started to walk away from the group at which point I reached out and gently touched her arm for a brief moment (1-2 seconds) to "usher" her back into the group. She then began acting out in front of her peers accusing me of "grabbing her and pulling her hair" and that she "is going to tell the Principal". When we returned to the classroom, the behavior of the disruptive students continued and my efforts to quiet them down met with failure. I decided to refer two of who I perceived as the catalysts for the misbehavior (one of them being the girl I reached out for) to the Principal for "Open Defiance". When she got to the office she accused me of grabbing her and pulling her hair. While sitting in the teachers lunch area shortly after sending the two students up on the referrals, I was contacted by the front office and told I would not be returning to the classroom after lunch and that I was to report to the Principal. Upon entering the office, I was directed to take a seat in the Assistant's Principal's office and told that the San Jose Police had been called. After waiting for two hours for the officers to arrive and explaining the situation to one of them, he indicated this "really wasn't a police matter . . . and that there would not be a police report on it." There are other events that occurred regarding my communication with the District in the interim but, to cut to the "crust of the biscuit", on April 1st I received an email from the Director of Personnel (who had said in a previous communication that she was "investigating the matter") indicating my status of substitute teacher had been "inactivated". Hence, I am not being offered anymore substitute positions. I am not only concerned about the loss of potential income but, also how she arrived at her final conclusion, what record may exist that could affect future employment/relationships with the District, the violations of my "due process" rights and a whole lot more I would like to discuss with an attorney before discussing the issue with the District any further. I do not have a lot of money to invest in hiring an attorney and so am seeking guidance here.
There is quite a bit more to discuss regarding this situation but, I believe I've captured the essence of my problem and hope to receive a response as soon as possible to guide me. Thank you, XXXXX
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello Art,

I'm very sorry to hear about your situation and hope I can help.

I have a few questions from you before I can start to provide you with an answer.

First, are you a member of a teacher's union at the school or are you an at-will employee as a substitute teacher?

Second, do you know which girl lied about you and stated that you had grabbed her and pulled her hair?

Customer: replied 1 year ago.

I am not a member of a the teacher's union and believe I would be considered an "at-will employee". However, it is my understanding in talking to the President of the local "association" that this policy is not actually in writing and I was NEVER informed of it.


 


I do not remember the name of the girl who made the false statements. Of course, her name is XXXXX XXXXX the referral I sent up with her to the office . . . which, on the way out the door (continuing her defiance) she altered in some way that I never saw. (By the way, she recanted to the police officer saying, "I don't think he meant to pull my hair.") This student gave me two false names before I finally determined who she really was so it's recalling her name is XXXXX XXXXX and frankly, I was so humiliated by the whole situation...especially after sitting alone for two hours in the Assistant Principal's office waiting for the police to arrive that her name has presently been lost to me. At the same time, if I had the class list, I believe I could pull it out. However, if the motivation for your question relates to seeking compensation from her family due to her false allegations, you should know the school is in a very low socio-economic area on the East side of San Jose. Truthfully, I'm more concerned about my civil rights being violated by the District who claims to have done an "investigation" which totally excluded me. The school's administration nor the police officer took ANY notes regarding my statements so I honestly can't imagine how the Personnel Director did any semblance of an "investigation".


I had attempted to edit my original description of the incident to you as I recorded an incorrect date. It was March 29th I was informed of my inactive status via an email I solicited from the Personnel Director. That email was written early that morning and the District had already gone on Spring break as of the close of school on the 28th. There were a few other details I had "cut short" in my original explanation that I had wanted to expound on, however, this program did not allow me to do so as you had sent this "response" with your questions.

Expert:  Joseph replied 1 year ago.

Hello Art,

 

Unfortunately, all employees are default at-will employees, meaning that they can be terminated at any time for any reason with or without any prior notice.

 

This stems from the employment at-will doctrine, which is codified in California Labor Code Section 2922, and states:

 

"An employment, having no specified term, may be terminated at
the will of either party on notice to the other. Employment for a
specified term means an employment for a period greater than one
month."

 

Unfortunately, your employer is not under any obligation to inform you that you are an at-will employee and can terminate or suspend you at any time for any reason (including a bad or false one).

 

I also regret to inform you that you may not have the due process rights that full-time (tenured) teachers have under California law. This is because substitute teachers are considered 'temporary' employees and can be dismissed without due process of law under the following conditions set out in Education Code Section 44954, unless they work more than 75 percent of days in a given school year.

 

See

 

California Education Code Section 44954.

 

Governing boards of school districts may release temporary employees requiring certification qualifications under the following circumstances:

 

(a) At the pleasure of the board prior to serving during one school year at least 75 percent of the number of days the regular schools of the district are maintained.

 

(b) After serving during one school year the number of days set forth in subdivision (a), if the employee is notified before the end of the school year of the district's decision not to reelect the employee for the next succeeding year.

While permanent employees have due process rights and only may be dismissed for certain reasons, substitute teachers who work less than 75 percent of days in a year are at-will employees and can be dismissed with the discretion of the school board.



All that said, you still have a defamation cause of action against the girl's parents (although it would be very limited due to her parents' income). You also may have a cause of action against the investigator or school district if they spread false and damaging information about you.

 

If it's any conciliation at all, I strongly disagree with the state of the law and really wish I had better news to give you, but I hope you appreciate my honest and direct responses.

 

Please let me know if you have any follow up questions.

 

If you're satisfied with my answer, please remember to rate my answer positively so I get credit for my work.

 

Also, please ensure that you give me a high rating when you receive your customer satisfaction survey, since high ratings ensure I will be able to continue to answer JustAnswer customers' legal questions and concerns.

 

Thanks and best of luck!

Joseph, Lawyer
Satisfied Customers: 4885
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Hello Art,

I saw that you viewed my answer but have yet to rate it.

Is there any additional information I can provide you with or follow up questions I can answer for you?

Thanks again for the opportunity to assist you.
Customer: replied 1 year ago.

Hello Joseph,


Earlier this morning (PDT) I sent a "reply" with a few follow-up questions that came to me as I digested the news you brought yesterday afternoon. Was that not received? It centered around the probability I will arrange a meeting with the Personnel Director this coming week and made reference to an upcoming District Board meeting. Please let me know if you didn't receive this inquiry and I'll try to "reconstruct" it. Evidently, I have no record from JustAnswer to what I write to you. Thanks, Art

Expert:  Joseph replied 1 year ago.

No, unfortunately, I didn't receive that. Probably due to a site error.

Could you try remembering what those questions were and retyping them?

 

Also, I would greatly appreciate if you rate my initial answer to you positively (as a good faith gesture) before I proceed to answer your follow up questions.

 

Thanks again!

Customer: replied 1 year ago.

Good Morning Joseph,


 


Though I have filled out a "customer survey" sent to me from JustAnswer, I have hesitated to "rate (your) initial answer" as the indication on the rating link is that doing so is the final step ("Rate to Finish") and I felt, though I admittedly delayed in requesting the "additional information" because I needed time to think about it, I was entitled to receive answers to those followup questions as well. As I said in my original communication to you with those questions, "though I am disappointed with the information you shared with me, I certainly DO appreciated your "honest and direct" (as well as timely) response." Based on your words, it appears due process isn't for all citizens of the U.S. but rather is also an "at will" right. Once I complete my attempt to reconstruct the aforementioned questions submitted last Saturday, I plan to return to this page and submit my positive rating of your service as the "good faith gesture" to which you refer. However, in the survey response I have already submitted, I did suggest to JustAnswer that more time be allowed for any further followup questions to a response prior to being asked for this rating and communication shut down. I think it best for a client to feel there is "closure".


At any rate, I will be meeting with the Director of Personnel tomorrow afternoon at 1:00 PDT and I'm also considering attending a District Board meeting this coming Thursday, depending upon the results of my meeting tomorrow. The following is what I intend to discuss with the Director:


1) I want to know what her investigation entailed and what information from that "investigation" led her to conclude that I should be "inactivated". I question the "facts" and thoroughness of this "investigation" as it definitely did NOT include any questions posed to me and no one (from Principal, Assistant Principal to Police Officer) recorded any of the statements I made concerning the situation (on March 13th nor anytime thereafter). There was really no discussion regarding the falsity of the student's allegations or the circumstances leading up to the "incident".


2) I want to see the "policy" on which the decision was made to contact San Jose Police. I was not informed of this new policy prior to accepting any of the several substitute positions I have accepted in the school district during the 2012-13 school year. (I think I mentioned previously that, in a discussion with the current President of the District's Teacher's Association, he indicated he believes there is no written policy . . . as in one "approved by the board".


3) I am also interested to know if this was the Director's unilateral decision or if it was discussed with anyone else. Would such a discussion on her part approach any standard related to the statement in your last "response" that I "may have a cause of action against the investigator (Director) or the district". Will you please define for me what level of discussion would meet the criteria for spreading "false and damaging information about" me? Does the fact that I have been excluded from earning additional income meet the criteria for being "damaging"? Also, the ed code you sited refers to the "school board" which I am relatively certain was not involved in this personnel decision. (i.e. "dismissed at the discretion of the school board")


4) I want to know if I can be "reactivated" as a substitute in the District, what steps I take to do so and/or if there is a way to "appeal" her decision since, from my perspective, that decision is based on the student's false allegations. (As shared with me by the police officer, the student at least partially "recanted" saying, "I don't really think he meant to pull my hair.")


5) It is important to me in my current "fundraising business" (for which I have several schools as clients within this District), my reputation and the possibility I may be applying for jobs as a substitute in other districts that there is no written record indicating I have done something "inappropriate" to a student. Do I have the right to either have such a record (if one exists) expunged or, at least, the opportunity to have MY statements/responses attached to it?


6) I believe my last question was generally to ask, "Are there any other pertinent questions I should include in my discussion with the Director and/or the School Board that may help to bolster my position?"


I will look forward to your response(s) and appreciate your help.


Thank you, Art

Expert:  Joseph replied 1 year ago.
Hello Art,

Thanks for the positive rating; I do appreciate it. (Although I would have appreciated a better rating more). The problem with waiting for customers to reply or to rate answers, is that many will take 'free information' and run, not paying the expert for the time and effort that they've spent.

If you were obtaining legal services in the real world, the vast majority of attorneys would expect upfront payment for services, or bill them for you immediately afterwards, so requesting payment after services have been provided should not be viewed as that much of an inconvenience to the customer. (Also, I had no way of knowing if you were to reply until you sent your message that you intended to).


I also wanted to comment on the due process rights. They are rights from the federal government, applicable to the states through the 14th Amendment, and do not apply to employment, since it is not considered to be a fundamental right that needs protection from abuse in the same way civil rights do.

I suppose it may be difficult to understand this division without studying the subject intensively, but it would be way too much for the government to get involved in every situation in which an employee has been treated unfairly.

All that said, I will proceed to answer some of your follow up questions.

1. Defamation

I should note that this is a very difficult cause of action to prove and an even harder one to get an attorney interested in taking, unless you can prove a high rate of damages. The primary difficulty in your situaiton is that you have to prove that the person knew or reasonably should have known that the information was false and that the statements were ones of fact.

The other requirement is that the statements be 'published,' meaning that they are shared with someone outside of the defendants. You would need to demonstrate that the information was shared with other people or outside of the district in order to have a winable case for defamation. Unfortunately, not allowing you to participate in the invesitgation is not cause enough for defamation.

2. Record expungment

No, unfortunately, there is no right to have your employment record 'expunged.' Again, this is an occasional right given to people for criminal records, not employment records. If the information is false though and shared with potential employers, your cause of action for defamation would come into play. You can also definitely request that your comments and responses to the allegations be placed in the file as well.

3. Additional questions

I think what you have is pretty good.
Customer: replied 1 year ago.

Hello Again Joseph,


 


Just so you are aware, I probably would have originally given you a higher rating if I had not encountered the "glitch" with the site. (As I indicated previously "though I am disappointed with the information you shared with me, I certainly DO appreciate your "honest and direct" (as well as timely) responses." I simply had no way of knowing if my "reconstruction" would be delivered or not and figured a "good" rating would get you credit while perhaps allowing me to talk to someone from "JustAnswers" to clarify I still had those "unanswered followup questions" that you did not receive. I apologize if my rating had any "negative affect" and if you have the company contact me, I can clarify that you actually did an "outstanding" job but, the computer program had some drawbacks. Otherwise, I once again thank you for the information you shared and wish you well.


Sincerely, Art

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