Riverside Cmty. Coll. Dist. v. Biersmith

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIC1825186, Chad W. Firetag, Judge. Reversed.

Liebert Cassidy Whitmore, Pilar Morin, David A. Urban and Meredith Karasch for Plaintiff and Appellant.

No appearance for Defendant.

OPINION

MILLER, J.

Pacific Justice Institute, Kevin T. Snider and Michael J. Peffer for Real Party in Interest and Respondent.

Real Party in Interest and respondent Eric Thompson was a tenured Sociology professor at Moreno Valley College (College), which is part of plaintiff and appellant Riverside Community College District (District). Students complained to the College that Thompson made inappropriate comments in class about women and made those who identified with the Lesbian, Gay, Bisexual and Transgender (LGBT)^[1] community feel uncomfortable. Further, he sent a video about conversion therapy called Understanding Same-Sex Attraction (video) to all staff at the College with the subject line "The Research Continues," and showed it in his classes in the Spring 2014 semester.^[2] In 2015, the District started an investigation into Thompson, which resulted in a 90-day notice of Unprofessional Conduct and/or Unsatisfactory Performance under Education Code section 87734 (90-Day Notice).

After the 90-Day Notice, students reported that Thompson continued to make disparaging remarks in the classroom regarding women. Further, a student complained that her low grade in Thompson's class was based on her sexual orientation. After she made the complaint, and an investigation had begun, Thompson sent her an email asking her to drop her complaint. The District opened another investigation, and ultimately, the

District determined in October 2017 to discharge Thompson. Thompson requested arbitration. After a lengthy hearing during which several of the College's students testified, and Thompson testified, the arbitrator determined that Thompson engaged in immoral conduct, was dishonest, was evidently unfit for service and refused to obey the school laws within the meaning of Education Code section 87732. However, the arbitrator found mitigating circumstances, and imposed the penalty of a 90-day suspension without pay rather than terminating Thompson's employment.

The District filed a petition for writ of mandate arguing that since Thompson was found unfit to teach, he should be dismissed (petition). The trial court denied the petition without issuing a statement of decision. The District filed this appeal from the denial of the petition.

On appeal, the District claims (1) the trial court committed reversible error by refusing to issue a statement of decision; (2) the trial court and arbitrator erred by finding that some of the charges were not supported by the evidence; (3) the trial court and arbitrator abused their discretion by finding that Thompson should only be suspended for 90 days when he should have been dismissed; and (4) the court and the arbitrator erred by finding that allegations prior to the issuance of the 90-Day Notice could not form the basis of the discipline. We reverse.

FACTUAL AND PROCEDURAL HISTORY^[3]

A. FIRST INVESTIGATIONS OF THOMPSON REGARDING STATEMENTS TO A FACULTY MEMBER AND CONVERSION THERAPY VIDEO

Thompson was a Sociology professor employed by the College, who, by 2014, had been teaching for over 14 years. He had been hired by the College in 2005 as a full-time professor and had tenure. Thompson had a Master's Degree in Sociology. He was married and had seven children. According to his syllabus, which he handed out to students for the classes he taught in 2014 and 2015, grades in his classes were based on exams, written assignments and participation. The accredited College consisted of over 8, 500 students with 55 percent of the student body being female. The College had an ALLY program that supported the LGBT community on campus. The College had a "Diversity Committee" that was dedicated to fostering an inclusive and accessible student experience.

In 2014, a male professor filed a formal complaint of harassment against Thompson with the College administration. The male professor, who was homosexual, was told by Thompson that the only way he would find true happiness would be to divorce his husband and beg the Lord for forgiveness. Thompson also told the male

professor he taught his students about conversion therapy. Thompson sent out a link to the video on an all-faculty email service.

In 2015, an attorney, Sandra Lindoerfer, was hired to investigate the complaint. Thompson was interviewed on March 10, 2015. He was teaching three in-person classes, and other online classes. Thompson was asked about a complaint that had been made about him and was asked what he believed the complaint to be about. Thompson replied that he had emailed the video around September 2014.^[4] He explained that the video "in a rather neutral way" showed the "other side" of the debate considering a person's sexual identity. He wanted to present the opposing view. He sent the link to the video in an email to the entire College staff and employees; it did not go to students. He felt that conversion therapy had been "demonized" by the American Psychological Association and the American Sociological Association because it did not fit their "political interests." He wanted to get the information out. He did not want to hurt feelings. Thompson believed that a person who was homosexual could, according to the research, change. Thompson also showed the video in class.

Thompson felt pressure from the president of the College to stop showing the video. Thompson thought it was appropriate to show the video in class as it was an appropriate subject to discuss in a college class. Thompson felt he was persecuted by

"radicals" on campus. Thompson agreed with the president of the College to not show the video in class just that semester.

As a result of the complaints, Lindoerfer submitted a report; the report is not part of the record. Based on the report submitted on April 1, 2015, Thompson was required to complete sensitivity training, which he completed.

B. SECOND INVESTIGATION AND 90-DAY NOTICE

One of Thompson's students, Krista E., who was in Thompson's class in Spring 2015, made a complaint against Thompson. In June 2015, Krista was interviewed by Lindoerfer. Krista was the treasurer of the LGBT Straight Alliance (LGBTSA) Club on campus. Her daughter, who was gay, also attended the College. Krista had been told of some "issues" that Thompson may have with the gay community prior to her taking his class.

Thompson showed a video to the class about a Mormon man who was gay but married. After it was over, he told the class that he showed it to the class to show that it was possible to have these types of feelings but overcome them and have a straight, "normal lifestyle." Thompson also mentioned in class that his wife was not educated and he liked it like that so she would not go anywhere. Krista insisted that someone used the word "dyke" in the classroom and that Thompson repeated the word.

Krista told Lindoerfer that there was a time in class when he called on her when they were talking about same-sex marriage. She insisted he did not normally call on people in class. During the discussion, Thompson talked about a biological father marrying his daughter after years apart. Krista was offended that he compared

homosexual relations with a case involving a biological father and daughter. When students in the class started talking about lesbian women dressing like men, she left the classroom. She felt Thompson was encouraging the stereotype. She was upset that Thompson continued to question her about same-sex marriage and no one else. In July 2015, Lindoerfer interviewed several other students and faculty members.

Several students confirmed Krista left Thompson's class the day same-sex marriage was discussed. Some students did not think that Thompson was singling out Krista. Greg A. reported that someone in the classroom used the work "dyke" but Thompson never used the word; one student stated Thompson said not to use that word.

Sergio M. was interviewed on June 8, 2015. He had been a student at the College. He took two Sociology courses with Thompson. Thompson always started his classes discussing that he was the breadwinner and that his wife stayed at home, homeschooling his children. Sergio interpreted his statement to mean he thought that is how a family should be. Sergio felt that Thompson did not allow students to express their opposing views. Sergio provided that Thompson had made a diagram of the family in class which was god, man and then woman. Sergio really liked Thompson and thought that no one complained about him because he had a charming personality and his classes were easy.

Ann Pfeifle was interviewed on June 23, 2015. She was a history professor at the College. She was the advisor for the LGBTSA on campus. She had served on the "Diversity Committee" at the College. Pfeifle had complained to the Diversity Committee about Thompson. She confirmed that Krista told her Thompson discussed liking his wife to be uneducated so she would not leave him. Pfeifle had viewed the

video and could not watch all of it because it was very upsetting. She considered it anti-gay propaganda. It was not a neutral presentation of the issue. Another student named Erick had come to her crying over the video shown by Thompson in Fall 2014. Erick had confided in Thompson and felt that Thompson had betrayed him. Thompson used the terms "symptoms" of homosexuality. Pfeifle recommended Erick talk to Thompson. Erick spoke with...