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Achene v. Pierce Joint Unified School Dist.

August 13, 2009


APPEAL from a judgment of the Superior Court of Colusa County, Joseph B. Harvey, Judge. Affirmed. (Super. Ct. No. CV23492).

The opinion of the court was delivered by: Blease, Acting P. J.


This appeal concerns the right of a probationary teacher, charged with unsatisfactory performance during the school year, to a written notice of her deficiencies and an opportunity to correct them prior to a notice of dismissal.

On December 8, 2006, Sarah Achene, a first year probationary teacher, was notified by defendant Pierce Joint Unified School District that she was to be dismissed for unsatisfactory performance, effective January 10, 2007, pursuant to section 44948.3 of the Education Code.*fn1

Although she was informed prior to the notice of dismissal that her performance could be "refine[d]," she was not told that it was unsatisfactory or that a failure to improve her performance warranted dismissal. Achene appealed the notice of dismissal to the district‟s governing board which affirmed it. She sought relief in the trial court by writ of administrative mandamus. (Code Civ. Proc., § 1094.5.)

The trial court found the district failed to comply with the procedures set forth in sections 44948.3, 44664, and 44938, and concluded that the board‟s order dismissing Achene was null and void. It directed the district to restore Achene‟s lost wages and benefits from January 10, 2007, through the end of the 2006-2007 school year.*fn2 We agree.

Dismissal of probationary employees during the school year is governed by section 44948.3. It provides for two notices, a notice of dismissal which provides time for an appeal to the board, and a notice of unsatisfactory performance preceding the notice of dismissal. In the latter case "unsatisfactory performance [is] determined pursuant to Article 11 (commencing with Section 44660) of Chapter 3, or for cause pursuant to Section 44932." Although section 44948.3 does not say how a cause listed in section 44932 is to be determined, section 44938 provides a procedure applicable to two of the causes, including since 1995, unsatisfactory performance. (Stats. 1995, ch. 392, § 4.)

Accordingly, section 44948.3 requires application of the section 44938 procedure to dismissal for unsatisfactory performance in addition to the procedure specified in article 11. Section 44938 requires that a teacher be given written notice identifying particular instances of unsatisfactory performance 90 days prior to a notice of dismissal and gives the teacher that period of time to correct the specified deficiencies.

Although section 44948.3 contains two procedures by which to determine unsatisfactory performance, we are directed to give them a construction "as will give effect to all." (Code Civ. Proc., § 1858.) Since the procedures provided by sections 44938 and article 11 are entirely consistent, utilize the same evaluation procedures,*fn3 and authorize dismissal only where particularized instances of unsatisfactory performance are not timely corrected, we apply them both.

Since Achene was not given a timely written notice of unsatisfactory performance or an opportunity to correct the specified deficiencies, as required by sections 44948.3, 44664 and 44938, we shall affirm the judgment.*fn4


We summarize the facts in the light most favorable to the judgment. (Pasadena Unified School Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 313-314; California Teachers Ass'n. v. Governing Board of Livingston Union School Dist. (1983) 144 Cal.App.3d 27, 37.)

In August 2006, roughly two months after receiving her provisional teaching credential, Achene was hired by the district to teach English at Pierce High School for the 2006-2007 school year. She has a bachelor‟s degree in cultural anthropology and a master‟s degree in information and communication studies.

Robert Chaplin, the head of the school‟s English department, was assigned to mentor Achene. As a mentor, his job was not "to criticize but . . . rather [to] coach and deal with situations that come up." He and Achene primarily discussed organizational issues, such as how to organize a lesson so that it will be effective. Chaplin observed Achene in the classroom one time and described her teaching as "[p]retty good. . . . I wouldn‟t say perfect," which is typical for a first year teacher.

The school‟s principal, Doug Kaelin, was responsible for formally evaluating Achene‟s performance during her first year probationary period. He performed informal, five-minute walk-throughs of Achene‟s classroom on a weekly or bi-weekly basis and discussed his observations with Achene. The substance of those discussions is not set forth in the record.

Kaelin also performed two formal classroom observations. The first took place on October 19, 2006. After the observation, Kaelin met with Achene to discuss the class. At no point during that discussion did Kaelin tell Achene that her performance was unsatisfactory. He emphasized the importance of putting together simple classroom rules and procedures and provided Achene with "two or three papers that had different rules on them . . . ." Achene discussed the rules with Chaplin that evening, ...

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