APPEAL from a judgment of the Superior Court of Placer County, Charles D. Wachob, Judge. Affirmed. (Super. Ct. Nos. SCV18938 & SCV20084).
The opinion of the court was delivered by: Blease, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The Reporting by School Employees of Improper Governmental Activities Act (Act), a whistle-blower act, (Ed. Code, §§ 44110-44114),*fn2 in section 44113, makes school officials liable in damages for interfering with the right of a school teacher to disclose evidence of improper governmental activities to an administrator or school board.
Plaintiff, Christina Conn, a second year probationary teacher, was denied tenure when she was not reelected to a third year of employment.*fn3 She claims that her nonreelection was intended to interfere with her right to disclose "that certain students . . . were not being properly evaluated, assessed, and assigned appropriate special education services . . . ." (§ 44113, subd. (a).) She sued defendants Western Placer Unified School District (the district), Principal John Bliss, Director of Special Education Tracy Murphy, Director of Personnel Robert Noyes, Assistant Superintendent Scott Leaman, and Superintendent Roger Yohe, as the responsible parties, for damages pursuant to section 44113.*fn4
The trial court entered a directed verdict (Code Civ. Proc., § 630) on Conn's interference cause of action on the view the individual defendants were management employees exempt from liability under section 44113.*fn5 It also ruled that they were entitled to immunity for discretionary acts under Government Code section 820.2.
Conn appeals, contending "[t]he court erred when it directed a verdict as to all defendants on [her] . . . section 44113 claim." She argues that the court "erred in holding that the individual defendants were immune from liability," and that she "presented sufficient evidence to prevail on her . . . section 44113 claim as to all defendants." We disagree.
Section 44113 is replete with nesting definitions that govern its application. It makes an "employee" liable in damages for using his or her "official authority" to interfere with the right of a school teacher to disclose to an official agent improper governmental activities. Although the term "employee" generally excludes "management employees" by incorporation of provisions of the Government Code (§ 44112, subd. (a); Gov. Code, § 3540.1, subd. (j)), it does not exclude "'[s]upervisory employees'" who exercise official authority over personnel actions. (Gov. Code, § 3540.1, subd. (m).) This dovetails with subdivision (b) of section 44113 that defines "official authority" as including "personnel action[s]." Consequently, section 44113 makes persons who exercise supervisory authority over personnel actions liable when that authority is used to interfere with a school teacher's rights under the Act.
For these reasons we shall conclude the trial court erred in finding that defendants Bliss, Noyes, and Yohe were management employees exempt from liability under section 44113. To the extent they exercised "official authority" to recommend that Conn not be reelected to a third year of employment, they acted as "'[s]upervisory employee[s]'" (Gov. Code, § 3540.1, subd. (m)), and not as "'[m]anagement employee[s]'" (Gov. Code, § 3540.1, subd. (g)).
The trial court did not, however, err in finding that Murphy, Leaman, and the district were exempt from liability under section 44113. Murphy and Leaman were management employees who did not exercise supervisory authority over Conn, and the district plainly is not an employee.
We shall further conclude that Government Code section 820.2 is superseded by section 44113, which limits the discretion of supervisory authorities to act in violation of the Act, and thus the trial court erred in finding the individual defendants were entitled to immunity for discretionary acts under Government Code section 820.2.
Notwithstanding, because the matters Conn sought to disclose did not constitute "[i]mproper governmental activit[ies]" (§ 44112, subd. (c)), they did not constitute "[p]rotected disclosure[s]" (§ 44112, subd. (e)) subject to protection under the Act. Consequently, the trial court did not err in directing a verdict in defendants' favor on Conn's interference cause of action. (Stilson v. Moulton-Niguel Water Dist. (1971) 21 Cal.App.3d 928, 933-934 ["if the directed verdict on the issue of liability may be sustained upon any theory of the law applicable to the case, it must be sustained [on appeal] regardless of the considerations which may have moved the trial court to its conclusion."].)
Finally, we need not consider Conn's assertion, made for the first time in her reply brief, that her complaint encompassed a claim under section 44114 and that the evidence adduced at trial supported such a claim. The record does not support the assertion that her complaint encompassed such a claim and she forfeited her right to assert the claim by failing to raise it in the trial court.
Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2003, Conn was hired by the district to teach first grade at Carlin C. Coppin Elementary School (Coppin) during the 2003-2004 school year. The decision to hire Conn was made by the school's principal, John Bliss.
Early in her first year of teaching, Conn complained to Bliss about a child in her class who had severe behavioral issues that she felt compromised the safety of the class. When Bliss asked her what she thought should be done, she said she thought the child should be "evaluated for an emotional disturbance." She hesitated to give her opinion because when she referred students to special education in the past, "people" questioned her motives for doing so. The child was eventually removed from Conn's class and placed in "an emotionally disturbed classroom."
In November 2003, Conn was present when speech and language pathologist Wendy Meagher discussed the results of a screening done on a student in Conn's class. When Meagher indicated the child "passed the screening after she modified the question several times," Conn questioned whether one "can modify questions on the screening." Meagher became very agitated and said she felt Conn was "challenging" her. The parents, who also were present at the meeting, asked that their child receive a full assessment. A full assessment was completed, and it was determined the child qualified for speech and language services.
A few weeks later, Bliss told Conn that Meagher and/or the reading specialist, who was also present at the meeting, complained that Conn was "rude," "abrasive," and "confrontational" during the meeting. Conn responded that Meagher, not she, had acted unprofessionally during the meeting. She also said she felt that some members of the special education team, such as Meagher, were "very rude and condescending to [her] because [she] referred kids to them." Bliss explained that there were not enough speech and language pathologists to service the existing needs of the children and that the team had been told to "prioritize the needs." Conn responded that she would continue to refer children to the team regardless of "staff load."
In January 2004, Conn's three-year old son Tristan was scheduled to begin receiving special education services through the district. An issue arose concerning transportation, and Conn telephoned the district's Director of Special Education, Tracy Murphy. Murphy, who had previously met with Conn, said transportation was never discussed. An argument ensued, and Murphy hung up on Conn. Conn contacted Murphy's supervisor, Assistant Superintendent Scott Leaman, and told him what had occurred. Conn was "very, very angry and emotional" during her conversation with Leaman.
Following that incident, Murphy refused to speak to Conn without a third party present. When Conn told Bliss about her encounter with Murphy, he said he had already heard about it from Leaman. Conn told Bliss she thought it was odd that Leaman had contacted Bliss since Tristan was not a student at Coppin, and thus, the incident "ha[d] nothing to do with [her] profession as a teacher at [Coppin]." Bliss responded, "Well, I know that and you know that. But in the real world, we know that it does." Conn then questioned whether she was "not supposed to try and get the educational concerns of [her] kids fixed," and Bliss responded, "No. But you just need to be very careful when you're doing it, because it can affect your job."
On another occasion, Murphy stopped by Conn's classroom to tell her about an opening in a special education class for Conn's son Noah. When Conn asked when the class would be available, Murphy responded that she had already given Conn that information. When Conn indicated she did not like the way Murphy was speaking to her, Murphy said she would no longer speak to Conn in any setting and walked out. Bliss later advised Conn that he had been told about the incident. When Conn indicated that she was troubled that such issues were being brought to him, he said he understood "but that sometimes that is just how things . . . work . . . ."
At an Independent Education Plan (IEP) meeting in mid-2004 concerning Conn's son Noah, Conn was advised that Noah was no longer eligible for special education services based on two prior IEP reports. Noah had not been "given an assessment to prove that he no longer needed services." At Conn's request, Noah was assessed, and it was determined that he was eligible for services. Thereafter, a second IEP was completed, which erroneously listed Noah's primary disability as "speech and language impairment." After Conn discovered the error, she asked to meet with Murphy to have the error corrected. Murphy said she would meet with Conn in the district office with the door open or in Bliss's office with Bliss present. A meeting was scheduled with Bliss, Murphy, and Conn for June 8, 2004. Murphy failed to show up for the meeting, and the IEP was not corrected until the following school year.
At some point, Conn and her husband met with Larry Mozes, a deputy superintendent at the Placer County Office of Education, to go over concerns they had regarding Noah's dismissal from special education as well as the "conduct" surrounding his dismissal. After the meeting, Mozes followed up by writing letters to the Conns and to Murphy. In essence, Mozes instructed them to "go back, do an IEP, make sure everybody is on the same page and proceed."*fn6
Some of Conn's colleagues told Bliss they were concerned about Conn's cell phone usage. Bliss discussed the issue with Conn, and she explained that she did not "normally [use her cell phone] for personal issues during teaching hours." On occasion, she used her cell phone for "instructional purposes," allowing children to call a parent if they "did something well in class that they normally didn't do or if a child did something they shouldn't have done . . . ." Bliss also advised Conn that he noticed that she arrived later than some of the other teachers and explained ...