APPEAL from a judgment of the Superior Court of San Joaquin County, Lauren P. Thomasson, Judge. Affirmed. (Super. Ct. No. 39200800195383CUWMSTK).
The opinion of the court was delivered by: Hull, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Plaintiff is a permanent certificated teacher employed by defendant Lincoln Unified School District (the District). After the District placed plaintiff on sick leave shortly after the start of the 2008-2009 school year due to concerns over her mental fitness, plaintiff initiated this action against the District, the District's governing board (the Board), and the District's superintendent, seeking a writ of mandate to compel the defendants to initiate proceedings under Education Code section 44942 (section 44942). Section 44942 provides a detailed procedure for determining if a teacher "is suffering from mental illness of such a degree as to render him or her incompetent to perform his or her duties." (§ 44942, subd. (a).) Plaintiff filed the action under a fictitious name in order to protect her privacy.
While this matter was pending, the District initiated section 44942 proceedings and placed plaintiff on paid administrative leave, as required by that legislation.
The trial court concluded the District was required to initiate section 44942 proceedings before placing plaintiff on involuntary sick leave. The court issued a peremptory writ of mandate compelling defendants to pay plaintiff her full salary during the period she was forced to use sick leave credits and to reinstate any other accumulated benefits lost during that period. The court thereafter entered judgment accordingly.
Defendants appeal. They contend plaintiff had no standing to pursue this action under a fictitious name. They further contend the trial court erred in concluding they were required to initiate proceedings under section 44942 earlier than they actually did.
We conclude defendants' standing argument is not well taken and defendants forfeited any other argument they might have regarding plaintiff's use of a fictitious name. We further conclude that, while section 44942 is not mandatory in all cases where a school district suspects a certificated employee may be suffering from a mental illness, it is mandatory where the school district chooses to suspend or transfer a certificated employee due to mental illness. In this case, when the District chose to preclude plaintiff from reporting for work at the beginning of the 2008-2009 school year, it effectively suspended her, thereby requiring the District to initiate section 44942 proceedings. We therefore affirm the judgment of the trial court.
Plaintiff is a permanent certificated teacher who has been employed by the District at one of its elementary schools for a number of years. On Monday, March 17, 2008, plaintiff arrived for work 17 minutes after school began and appeared to be under the influence of alcohol. She was placed on paid administrative leave. On May 1, plaintiff's attorney wrote to the District denying that his client had been under the influence of alcohol on March 17. He explained that plaintiff had been taking a medication for depression and the dosage had recently been increased substantially. The attorney also explained plaintiff had suffered a series of tragic events over the past year. He asked that plaintiff remain on paid administrative leave for the remainder of the school year and the District agreed.
On August 5, 2008, the District received a report that plaintiff had arrived at the parking lot of a school where she had previously taught and, when approached by an office supervisor, indicated she could not find her current school. The supervisor thought plaintiff was joking but plaintiff insisted she was not. Plaintiff appeared disoriented. The supervisor gave her directions.
On August 13, the District wrote plaintiff a letter requesting that she provide a fitness for duty certificate before the start of the 2008-2009 school year. On August 15, plaintiff's attorney responded that plaintiff would not provide such a certificate and that the District must instead proceed in accordance with section 44942.
On August 18, the principal at plaintiff's school called plaintiff to schedule a meeting for the next day. Plaintiff said she had to speak with her attorney first. Forty minutes later, plaintiff called the principal but, during the call, kept referring to the principal as Ann, a recently retired teacher. Plaintiff agreed she and her union representative would meet with the District's director of human resources at 1:00 p.m. on August 22. However, at the scheduled time, the director and the union representative arrived, but not plaintiff. At approximately 2:05 p.m., plaintiff showed up at the office of the deputy superintendent of human resources and explained the union representative had told her the District's office was behind Lincoln High School and she kept driving around looking for it until she got lost. However, plaintiff had in fact been to the District office numerous times in the past and the union representative denied telling plaintiff the office was behind Lincoln High School.
On August 26, Plaintiff met with the assistant superintendent and informed him she was meeting with her physician the following week.
On August 27, the District's attorney wrote plaintiff's attorney offering to explore options other than section 44942.
Plaintiff was examined by her physician on September 3, and the results of that examination were expected the week of September 15. However, on September 16, plaintiff learned her physician had referred her for additional testing.
On September 17, the District's attorney wrote plaintiff's attorney explaining the District had agreed to keep plaintiff on administrative leave pending medical exam results, but two weeks had passed without plaintiff providing any such results. The attorney indicated that if she did not hear from plaintiff's attorney by September 19, she would recommend that plaintiff be placed on sick leave.
Plaintiff's attorney responded immediately, asserting: "This is in response to your letter dated September 17, 2008. I spoke to my client and she has been referred for additional testing. With that being the case, she is unable to make an informed decision on how she wishes to proceed. However, if your client is anxious to proceed, it must do so lawfully." Plaintiff's attorney went on to explain that the District must initiate section 44942 proceedings.
On September 18, the District notified plaintiff she was being placed on sick leave.
On October 9, plaintiff filed the present action seeking a writ of mandate to compel defendants to initiate section 44942 proceedings.
By October 31, the District concluded section 44942 was the only logical option in light of plaintiff's refusal to provide a fitness for duty certificate. Plaintiff was served with a statement of charges and, on November 6, was suspended. Plaintiff was given the right to appear at the next Board hearing on November 12, but she failed to do so. The Board voted to continue her suspension and proceed under section 44942.
Before the District initiated section 44942 proceedings, plaintiff was forced to use nearly two ...