Andersson v. Newhall Sch. Dist.

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CHARLENE ANDERSSON, Plaintiff and Appellant, v. NEWHALL SCHOOL DISTRICT et al., Defendants and Respondents

B315894

California Court of Appeals, Second District, Third Division

July 18, 2023

NOT TO BE PUBLISHED

Order Filed Date 8/4/23

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 18STCV07659 Michael P. Linfield, Judge. Affirmed.

Arthur Kim Law Firm and Arthur Kim for Plaintiff and Appellant.

McCune &Harber, Stephen M. Harber, and Amy A. Evenstad for Defendants and Respondents.

Order Denying Petition for Rehearing and Modifying Opinion

BY THE COURT: ^[*]

It is ordered that the petition for rehearing filed July 31, 2023 is denied and the opinion filed July 18, 2023, is modified as set forth below. There is no change in the judgment.

On page 29, first full paragraph, delete the following:

On appeal, Andersson attempts to argue that the District's act of placing her on administrative leave was also an adverse employment action. However, that ground was not alleged in the pleadings and thus may not be relied upon to oppose summary judgment. (See California Bank &Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 ["[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings," and "[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings"].) Replace the deleted portion with the following:

In her reply brief, Andersson attempts to argue that the District's act of placing her on administrative leave was also an adverse employment action. However, this contention is conclusory and not developed in her briefing. Regardless it is undisputed that Morse's understanding was that B.U.'s file had not arrived from the other school district or had been misplaced at the time Andersson was placed on administrative leave. Andersson concedes in her opening brief that Morse's "understanding of the situation did not change until after Andersson filed her complaint with the CDE in April 2018." Thus, the undisputed evidence would not permit a trier of fact to infer that the District placed Andersson on administrative leave in retaliation for the disclosure of Sorenson-Howe's intentional concealment of B.U.'s IEP, of which Morse was not aware.

LAVIN J.

INTRODUCTION

Plaintiff Charlene Andersson, a teacher, appeals following the grant of summary judgment in favor of her employer, Newhall School District (the District), her former principal, Kim Sorenson-Howe, and the former Assistant Superintendent of Human Resources with the District, Michelle Morse (together, defendants). Andersson's complaint alleged that the defendants gave her a notice of unsatisfactory performance and negative performance review in retaliation for her disclosure that Sorenson-Howe concealed that a student who transferred to the District had an Individualized Educational Plan (IEP) from his prior school district and delayed the student's access to services for several weeks. Andersson brought causes of action for retaliation under Labor Code section 1102.5 and Education Code sections 44110 to 44114 and asserted claims for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).

The court granted summary adjudication of Andersson's Labor Code cause of action because it concluded that the violation of law she disclosed was already known to the District and thus was not a protected disclosure. After this matter was submitted, our Supreme Court issued its opinion in People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719 (Kolla's). In that opinion, the court clarified that protected disclosures include information that was already known to the employer or government agency to which it was disclosed. In light of Kolla's, we conclude that the court erred in granting summary adjudication of the Labor Code cause of action on the grounds that there was no protected disclosure. However, summary adjudication was nevertheless appropriate because the District demonstrated by clear and convincing evidence that Andersson would have received a negative performance review for legitimate and independent reasons. We further conclude that Andersson has failed to carry her burden of demonstrating prejudicial error as to her Education Code, IIED and NIED causes of action. We therefore affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Factual Background

Andersson has been a teacher with the District for over 25 years. During the relevant period, Andersson was a fifth grade teacher at Meadows Elementary School (Meadows), Sorenson-Howe was the principal at Meadows, and Morse was the Assistant Superintendent of Human Resources with the District.

1.1. Concerns about Andersson's Conduct Raised to or by Sorenson-Howe Between 2016 and Early 2017

In October 2016, the parent of a child in Andersson's classroom, L.S., informed Sorenson-Howe that L.S. was so afraid of Andersson that the child wet himself rather than asking her for permission to use the restroom. His mother also reported that she was afraid of Andersson. L.S. was removed from Andersson's class.

In July 2017, the parents of a student, V.F., asked that V.F. not be placed in Andersson's class because V.F.'s sister had been in Andersson's class and "had such a negative experience [they] had to have her moved to another class."

In September 2017, Sorenson-Howe received an email from the parents of M.E. regarding their "extremely serious issues" with Andersson's treatment of their daughter. According to M.E.'s father, since the first week of school, M.E. had reported that Andersson did not like her and picked on her. He also stated that he received a phone call from the parent of another child in the class who had come home crying because of how badly Andersson had treated M.E. Specifically, Andersson had spoken in front of the whole class about how M.E. was "stupid" and how she had gotten every math problem wrong. M.E.'s parents confirmed that M.E.'s responses were correct and that she had shown her work. M.E.'s father demanded that she be moved to another class immediately.

Sorenson-Howe forwarded the email to Morse several days later. In it, she stated that when she entered the District the prior year, she had been told that Andersson "has a personnel/HR file that is thick," but that she "ha[d] not experienced anything with this teacher that has been too alarming over the past year" and that Andersson typically corrects a situation immediately after Sorenson-Howe addressed it with her. Sorenson-Howe testified that she had "extensive conversations" with Andersson regarding M.E. and concluded that Andersson "had not intentionally done anything wrong" and that M.E. could remain in her class with appropriate support and coaching, although Sorenson-Howe "still had wonderings." Several weeks later, M.E.'s father emailed Sorenson-Howe stating that M.E. was enjoying school again. However, he also requested that a further meeting be set up with Andersson and Sorenson-Howe "to facilitate positive communication between us all, and to discuss any lingering issues."

In December 2017, Andersson missed three and a half days of school to go to Paris, France but did not obtain permission from the District to take that time off in advance. Andersson testified that she was sick and that her doctor had instructed her that she should not go to school but that she could fly. In January 2018, Sorenson-Howe met with Andersson regarding the absence.

1.2. The Discovery of B.U.'s IEP

At the beginning of the 2017-2018 school year, a student named B.U. was assigned to Andersson's classroom. B.U. had transferred from another school district. In September or October 2017,^[1] B.U.'s parents asked Andersson why he had not been pulled out of class for services as he had been in the past. Andersson arranged a meeting with the parents and with Sorenson-Howe. After speaking with the parents, Andersson and Sorenson-Howe went to the main office to look for documentation concerning services for B.U. They located the cumulative file from the other district in the office manager's office. The file was in a folder with a stamp indicating that it had been received by the school district in August 2017. Andersson and Sorenson-Howe looked at the folder and saw that the child was autistic and had an IEP in place. Sorenson-Howe told Andersson that they should tell the parents that the IEPs had not yet arrived from the other district.^[2] Andersson asked, "How can we say that?" and "How could this happen?" while they walked from the office back to the classroom and Sorenson-Howe did not respond.

Andersson testified that she did not know whether anyone was in the office at the time they located the file. According to Sorenson-Howe, the assistant principal, Janette Van Gelderen, and two other employees were also present in the office, assisted in the search for the file, and were there when it was located. After the meeting with B.U.'s parents concluded, Sorenson-Howe returned to the office and asked one of the office employees how this could have happened. After she read the IEP, Sorenson-Howe followed up with the office manager and told her they need to develop a system so that every cumulative file that came in would be reviewed before filing. Van Gelderen also participated in developing this system.

On October 9, 2017, Sorenson-Howe sent an email to the special education team stating that she had put B.U.'s folder in the mailbox of one of the team members. She further stated "At first glance, this student has an IEP that dictates both RSP and Speech services with an eligibility of Autism. The accommodations that...