Monday, August 17, 2009


By KENNETH OFGANG, Staff Writer | Metropolitan News-Enterprise - A Los Angeles daily newspaper focusing largely on law and the courts

17 August - A former teacher at San Fernando High School may sue school officials whom he alleges forced him out of his job for complaining about how the school was run and engaging in off-campus political activities, including Mayor Antonio Villaraigosa’s campaign, the [State] Court of Appeal for this district ruled Friday.

Div. Three, in an unpublished opinion by Justice Patti S. Kitching, said Los Angeles Superior Court Judge James R. Dunn erred in finding qualified immunity and sustaining a demurrer to Alberto Gutierrez’s third amended complaint stating a 42 U.S.C. Sec. 1983 claim.

Gutierrez resigned from the Los Angeles Unified School District in 2007 after 10 years of employment, the last five at San Fernando. He claims that despite “very good” or “outstanding” evaluations the first four years he was there, he was downgraded and constructively terminated.

Political Events

The events that led to his being forced to resign, he said, included speaking at the Mexican American Political Association conference, appearing as a guest on a Spanish radio talk show, attending an event organized by the Los Angeles Community College District regarding the dropout problem, and speaking at a League of Women Voters meeting about military recruitment on campus.

He originally alleged that he was retaliated against for a number of statements he made at school, including his opposition to the Iraq war. But those allegations were rejected under Garcetti v. Ceballos (2006) 547 U.S. 410, holding that a public employee lacks First Amendment protection for statements made in the course of official duties.

In a third amended complaint, he alleged the defendants—two principals, a vice principal and an assistant principal—retaliated against him because he “joined the Mayor, Antonio Villaraigosa, in the Mayoral political campaigning efforts to change the structure of the LAUSD, so that it would have to be accountable to the Mayor’s office,” he alleged in the third amended complaint.

‘Closed Ranks’

Administrators “closed ranks” and took “aggressive actions” against him, including placing false reprimands in his personnel file and urging students, parents and other teachers to file false complaints against him, he said, because he had persisted in complaining about deficiencies in the school.

Among his complaints, he explained, were that the school had a high dropout rate, particularly among Hispanics; that teaching materials were inadequate; that students were loitering on campus and cutting classes without sanction; that students were attending on-campus concerts involving vulgar music and viewing R-rated films in the library, without parental consent, in violation of district policy; and that military recruiters were allowed to enter classrooms while they were in session.

Kitching, writing for the Court of Appeal, said the allegations were sufficient to withstand demurrer.

While the defendants argued that the actions alleged could not have amounted to constructive termination, Kitching said it was unnecessary for the plaintiff to show constructive termination because the written reprimands were sufficiently adverse employment actions to support a claim.

The justice went on to say that the trial judge erred in ruling that the defendants were entitled to qualified immunity.

Treated as True

The allegations of the complaint, Kitching wrote, are that the plaintiff was retaliated against for statements he made off campus, on matters of public concern. While the defendants claimed that Gutierrez was reprimanded solely for misconduct that occurred at school, the plaintiff’s allegations must be treated as true for purposes of demurrer, the justice said.

She rejected the contention that allegations of retaliation for complaining about school conditions and supporting Villaraigosa were improperly pled because they were inconsistent with earlier allegations that he was retaliated against for his opposition to the Iraq war. The claims were not necessarily conflicting, she said, because the defendants “could have been motivated to retaliate against Gutierrez because of his views about the Iraq war and his statements off-campus about the alleged deficiencies at SFHS.”

If Gutierrez was retaliated against for off-campus statements about matters of public concern, voiced as a citizen and not merely as a teacher, the justice wrote, the defendants violated clearly established law, precluding a finding of qualified immunity at the pleading stage.

The appeal was argued by Michael Strumwasser of Strumwasser & Woocher for the defendants and Humberto Guizar for the plaintiff.

The case is Gutierrez v. Rodriguez, B205542.


Main Entry: 1de·mur·rer

Pronunciation: \di-mr-r,-m-rr\

Function: noun

Etymology: Anglo-French demourer, verb

Date: circa 1521

1 : a response in a court proceeding in which the defendant does not dispute the truth of the allegation but claims it is not sufficient grounds to justify legal action
2 : objection

"demurrer." Merriam-Webster Online Dictionary. 2009.

Merriam-Webster Online. 17 August 2009

smf connecting dots in a small world: Thomas  A.  Saenz , who is current vice chair of the LA County Board of Education is also Mayor Villaraigosa's counsel and President and General Counsel of MALDEF.

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