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McAllister v. Los Angeles Unified School District

California Court of Appeals, Second District, Second Division

June 3, 2013

PATRICIA MCALLISTER, Plaintiff and Appellant,
LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC484767 Rita Miller, Judge.

Julie A. Esposito for Plaintiff and Appellant.

Alexander A. Molina for Defendants and Respondents.


Patricia McAllister (appellant) appeals from a final judgment entered after the trial court sustained a demurrer to each of appellant’s causes of action against respondents Los Angeles Unified School District (LAUSD) and John E. Deasy (Deasy), superintendent of LAUSD (collectively “respondents”). We affirm the judgment.


Appellant contends that the trial court erred in sustaining the demurrer to her third cause of action claiming a deprivation of rights under section 1983 of title 42 of the United States Code (hereafter section 1983). Although appellant concedes that the trial court properly sustained the demurrer as to LAUSD and Deasy in his official capacity, she argues that she should be permitted to amend her complaint to state this cause of action against Deasy in his individual capacity.

Appellant further contends that the trial court erred in sustaining a demurrer to her second cause of action alleging a private claim for relief under article I, section 2, subdivision (a) of the California Constitution (hereafter Constitution, section 2(a)). Appellant argues that the trial court’s broad ruling that there is no private cause of action under section 2(a) is incorrect.

Next, appellant contends that the demurrer was not properly sustained as to her tort claims for wrongful discharge and infliction of emotional distress. Appellant argues that, contrary to the trial court’s ruling, these causes of action are not impermissible under California Government Code section 815.

Finally, appellant contends that punitive damages are properly recoverable under section 1983 against an individual who is found to have acted with reckless or callous indifference in depriving appellant of her constitutional rights.


1. The complaint

Appellant filed her first amended complaint against respondents on May 22, 2012, alleging wrongful termination; deprivation of rights under the Constitution, section 2(a); violation of section 1983 for deprivation of rights under the First Amendment to the United States Constitution; breach of implied contract; breach of covenant of good faith and fair dealing; and negligent infliction of emotional distress.

Appellant is a credentialed teacher in mathematics and a permitted substitute teacher. LAUSD is an entity which controls and operates public elementary and secondary schools within the City and County of Los Angeles, California. Deasy is the duly appointed and acting superintendent of LAUSD and is responsible for overseeing all educational and administrative issues for LAUSD.

Beginning about April 14, 2006, appellant was employed by LAUSD as a substitute teacher for mathematics and general education subjects. On May 4, 2011, LAUSD made an offer of continued employment to appellant for the school year beginning September 2011 and ending June 2012 as an on-call substitute teacher.

As of October 12, 2011, appellant was scheduled to begin a substitute assignment at Ramon C. Cortines School of Visual and Performing Arts on November 4, 2011.

On Wednesday, October 12, 2011, appellant attended a public rally at Los Angeles City Hall. The rally was part of a movement known as “Occupy Los Angeles.” Appellant attended because of her opposition to cuts in education. During the rally, appellant was approached by a reporter for Reason.TV who asked for an interview. Appellant identified herself and disclosed that she worked for LAUSD. She stated she was at the rally “‘representing herself.’” During the course of the interview, appellant made the following comment: “‘I think that the Zionist Jews who are running these big banks and our Federal Reserve, which are not run by the federal government, they need to be run out of this country.’”

A video of the interview was posted on the Reason.TV website. It was also uploaded to, and was widely viewed.

Beginning the morning of October 14, 2011, appellant began receiving telephone calls from unidentified people berating and condemning her for the statements which were repeated on the videos available on the internet. During this weekend, appellant viewed the internet video and saw comments posted urging people to call LAUSD and demand that appellant be fired.

On Tuesday, October 18, 2011, appellant called the LAUSD “Subfinder” automated telephone system to check on her scheduled teaching assignment for November 4, 2011, at Ramon C. Cortines School of Visual and Performing Arts. However, when she attempted to log in, the system rejected her request. The automated Subfinder system message said that her status was inactive, and that she should call her supervisor.

Appellant then called the Ceritificated Substitute Unit of LAUSD to inquire as to why her status was inactive. Appellant spoke with Marjorie Josaphat who told appellant to call Dr. Ira Berman, LAUSD’s director of employee relations. Appellant called Dr. Berman. He told her to come to his office right away.

Appellant arrived at LAUSD central offices at 1:00 p.m. on October 18, 2011, and proceeded to Dr. Berman’s office. Dr. Berman informed appellant that her employment with LAUSD was terminated. She was given no reason when she asked Dr. Berman why her employment was terminated, but was told that she should contact Deasy.

Before she could speak to Deasy, appellant saw a news report of a statement Deasy had released to the press and media. The statement read as follows:

“As Superintendent of the Los Angeles Unified School District (LAUSD), I want to emphasize that we condemn the remarks made recently by Patricia McAllister. Her comments, made during non-work time at a recent protest rally, were her private opinions and were not made in the context of District services. At LAUSD, we recognize that the law is very protective of the freedom of speech rights of public employees when they are speaking as private citizens during non-working time.

“I further emphasize to our students, who watch us and look to us for guidance, to be role models and to represent the ideals by which LAUSD lives, that we will never stand for behavior that is disrespectful, intolerant or discriminatory.

“As a day-to-day substitute teacher, Ms. McAllister was an at-will employee. As of today, she is no longer an employee of the LAUSD.”

On October 20, 2011, appellant received by certified mail a letter dated October 18, 2011, from LAUSD signed by Vivian K. Ekchian. The letter read that “‘you are to be separated from employment with the Los Angeles Unified School District effective the date of this letter.’”

On or about December 2, 2011, pursuant to the requirements of the California Tort Claims Act, as codified in Government Code section 910 et seq., appellant prepared a form outlining her claim against LAUSD. In the form, appellant asserted she had been fired as a result of an interview she gave at an “Occupy Los Angeles” rally. Appellant further asserted the termination was in violation of her First Amendment right to freedom of speech.

On December 13, 2011, appellant received notification from LAUSD that her claim had been rejected, and that she had six months to file a court action on the rejected claim.

Appellant alleges she has suffered and continues to suffer damages as a result of the termination of her employment. She further alleges that Deasy made the decision to terminate appellant’s employment, that he did so within the course and scope of his employment and duties as superintendent of LAUSD, and that he was acting pursuant to the policies, practices, directives and procedures of LAUSD.

2. The trial court proceedings

On June 22, 2012, respondents filed a demurrer to appellant’s first amended complaint. Respondents argued that appellant’s wrongful termination and negligent infliction of emotional distress claims failed as a matter of law because Government Code section 815, subdivision (a), abolished all common law or judicially declared liability for public entities. As to appellant’s cause of action under the Constitution, section 2(a), respondents argued that it should be dismissed because there is no private right of action under this provision. Respondents also argued that appellant could not state a prima facie case under section 1983 against LAUSD or its employees because it is well established that the state, and state officials sued in their official capacities, are not “persons” who may be liable under this statute. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58 (Will).) In addition, respondents argued that they were immune pursuant to Government Code section 820.2, which provides that:

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Finally, respondents argued that LAUSD cannot be held liable for punitive damages under Government Code section 818, which provides that:

“Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

Since no conduct was alleged on the part of Deasy that would support a claim of punitive damages, respondents argued that the ...

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