Thornbrough v. Western Placer Unified School District

Facts

California shields public employees who report improper governmental activity. Labor Code section 1102.5, subdivision (b), and Education Code section 44112 et seq. each “protect defined employees who make good faith reports of defined improper governmental activities, such as violations of law, from retaliation by their employers.” (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 194.) When a public employee is “allegedly discharged both because of dissatisfaction with his performance and because of his exercise of constitutional rights,” the courts “apply a ‘but for’ test, and reinstatement is not mandated if the employer can demonstrate that it would have reached the same decision even had the employee not engaged in protected conduct.” (Id. at p. 195, quoting Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 205.)

The Western Placer Unified School District hired Michael Thornbrough in 1997; as assistant director of maintenance he supervised employees and was required to “maintain effective working relationships” with staff and obey “all district requirements and Board of Trustee policies.” (Thornbrough, supra, 223 Cal.App.4th at p. 174.) His day-to-day work was competent. (Ibid.) In 2006, Thornbrough and his immediate supervisor reported suspected wrongdoing on District construction projects, and the superintendent, Scott Leaman, testified the resulting litigation prompted him to reorganize the administration and bring in Cathy Allen to oversee construction. (Ibid.)

The record also documented a sustained pattern of misconduct unrelated to any reporting. In 2007 Thornbrough settled a prior disciplinary action arising from a derisive remark about a subordinate’s wife’s breasts; the settlement placed him on unpaid leave and required harassment-prevention training. (Thornbrough, supra, 223 Cal.App.4th at p. 175.) Ordered not to contact the wife, Rhia, he nonetheless went to the District office the next day, locked the door, and tried to justify his earlier comment and make her “feel guilty about having filed a complaint, which made her so upset that she cried.” (Id. at pp. 175–176.) He was found to lack credibility. (Id. at p. 176.)

Thornbrough openly opposed Allen’s promotion, accused her of “intentionally deceiv[ing]” the board and community, called her a “fucking bitch,” faulted her “lack of brightness,” and, in a December 2007 letter, charged that she was sending “our department backwards” — conduct that led the trial court to find he “simply did not respect lines of authority in the workplace and, apparently, he did not care who knew that.” (Thornbrough, supra, 223 Cal.App.4th at p. 176.) Allen testified that “from day one” she had documented problems with him, that he was “routinely discourteous and insubordinate,” and that he “lacked the ability to lead and work with other people and would never change.” (Id. at pp. 176–177.) An organizational-psychology expert, Dr. Larry Fogli, concluded “no one trusted Thornbrough, he was disruptive,” had “no willingness to change,” and “should be terminated.” (Id. at p. 177.)

Forensic evidence showed “[m]assive amounts of downloaded pornographic and otherwise inappropriate material” on Thornbrough’s District computer — some images using the word “bitch,” one mocking Mexicans, one mocking sexual harassment — stored deliberately, not inadvertently, in violation of a District policy he claimed not to know. (Thornbrough, supra, 223 Cal.App.4th at p. 178.) The hearing officer separately found he had retaliated against the employees who reported his earlier harassment, and had surreptitiously tape-recorded a meeting with Allen. (Ibid.) Three witnesses — Leaman, Allen, and Fogli — opined he should be terminated. (Id. at p. 173.)

Procedural history

The District filed original disciplinary charges on June 16, 2008, amending them several times as the proceeding developed. (Thornbrough, supra, 223 Cal.App.4th at pp. 174, 182–183.) After a 15-day administrative hearing, the hearing officer issued a 22-page decision on April 26, 2009 recommending termination, which the District adopted. (Id. at p. 174.) The hearing officer sustained most of the charges — insubordination, misuse of the District computer to store pornography and leak confidential information, retaliation against the prior complainants, and surreptitious recording — but expressly rejected Thornbrough’s claim that the charges were retaliation for protected speech, finding “a sustained pattern of egregious misconduct” that “entirely justif[ied] his termination, independent of any legally impermissible concurrent motive by the District.” (Id. at pp. 178, 197.)

Thornbrough petitioned for a writ of administrative mandate. The trial court, exercising its independent judgment of the evidence (Code Civ. Proc., § 1094.5, subd. (b)), issued a 57-page statement of decision rejecting his arguments; it found his reports were not legally protected speech but separately found his termination justified by misconduct “unrelated to claimed protected speech.” (Thornbrough, supra, 223 Cal.App.4th at pp. 174, 178–179.) Thornbrough appealed. The Court of Appeal, applying the substantial-evidence test to the trial court’s factual findings and independent review to questions of law (id. at pp. 179–180), affirmed in a unanimous opinion by Justice Duarte. The opinion was filed unpublished on December 23, 2013 and ordered published by the court on January 22, 2014.

Issue

The published analysis turns on a question of mixed-motive doctrine carried over from Harris v. City of Santa Monica: where a public employee claims his discharge was retaliation for protected reporting, may the employer defeat the claim by showing it “would have reached the same decision” absent any protected conduct — and must the employer concede a mixture of lawful and unlawful motives in order to make that same-decision showing, or may it deny any unlawful motive while raising the defense contingently? Subsidiary questions concerned administrative notice, hearing-officer bias, and the use of time-barred conduct as evidence; the court resolved each against Thornbrough, but the same-decision holding is the published opinion’s doctrinal core.

Holding

Reasoning

The standard of review channeled the analysis. In mandamus proceedings arising from public-employment hearings, the trial court exercises its “independent judgment of the evidence,” beginning with “a strong presumption that the [District]’s decision was correct” and placing the burden on the petitioner. (Thornbrough, supra, 223 Cal.App.4th at p. 179, quoting Sager v. County of Yuba (2007) 156 Cal.App.4th 1049, 1053.) On appeal the court applied the substantial-evidence test, viewing the evidence “in the light most favorable to the trial court” while making “an independent review of any questions of law.” (Id. at pp. 179–180.) Because Thornbrough’s briefing “omit[ted] salient facts” and painted the evidence in his own favor, the court deemed his evidentiary challenges forfeited — an early signal that the appeal would rise or fall on legal doctrine, not the facts. (Id. at p. 174 & fn. 3.)

The court declined to decide whether the speech was protected. Retaliation for protected reporting was Thornbrough’s “primary and consistent defense theory.” (Thornbrough, supra, 223 Cal.App.4th at p. 194.) Rather than resolve whether his letters to the board and grand jury were protected, the court took the more economical route: “we need not determine whether or not Thornbrough engaged in protected speech, because both the hearing officer and the trial court found that other facts amply justified termination, and such finding is sufficient, as a matter of law, to obviate Thornbrough’s retaliation defense.” (Ibid.) That move framed everything that followed: the case became a same-decision case.

The governing rule: a “but for” same-decision test. The court grounded the defense in Williams v. City of Los Angeles and the Supreme Court’s decision in Bekiaris v. Board of Education (1972) 6 Cal.3d 575. Where dual motives are alleged, the trial court must “make an independent assessment” and determine “whether the true reason for dismissal was official dissatisfaction with the [employee’s] exercise of constitutional rights, so that, absent the exercise of these rights, the board would not have dismissed” the employee. (Thornbrough, supra, 223 Cal.App.4th at pp. 194–195, quoting Bekiaris, supra, 6 Cal.3d at pp. 593–594.) The corollary, from Bekiaris, cuts both ways: while “school authorities” may not “mask an unconstitutional dismissal behind a statement of valid causes,” neither may “a teacher genuinely dismissed for valid causes” be “reinstated because school authorities were also displeased with his exercise of constitutional rights.” (Id. at p. 197, quoting Bekiaris, supra, 6 Cal.3d at p. 593, fn. 12; see Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 285–286.) An employee may not “insulate himself from dismissal simply by engaging in political activities offensive to his superiors.” (Ibid.)

The untainted evidence was overwhelming. Applying that rule, the court found the record “abundantly support[ed]” the trial court’s finding that the District “would have terminated Thornbrough regardless of any allegedly protected activity.” (Thornbrough, supra, 223 Cal.App.4th at p. 197.) The confrontation with Rhia — returning to her office the day after a stay-away order, to humiliate her — was “dangerously severe misconduct by a manager” that was “itself sufficient to justify termination.” (Ibid.) Added to it were “open insubordination against Allen” and “inappropriate computer usage,” “both unrelated to any claimed protected speech,” which “reinforce[d] the view that termination was inevitable.” (Ibid.) These acts “alone justify termination of a managerial school district employee.” (Id. at p. 200.)

Rejecting the “fruit of the poisonous tree” and after-acquired-evidence arguments. Thornbrough argued that the facts underlying the amended charges — chiefly the computer search — “would never have come to light but for the purportedly improper original charges,” making them unusable “after-acquired” evidence. (Thornbrough, supra, 223 Cal.App.4th at p. 198.) The court disagreed. The after-acquired-evidence doctrine of Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614 bars an employer from using post-termination discoveries to legitimize a completed firing; it “does not address amendments to pending administrative discipline cases, based on evidence discovered during the proceedings, that is before the final decision to terminate is made.” (Ibid.) Crucially, the timing of the same-decision inquiry follows Harris: “when we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.” (Ibid., quoting Harris, supra, 56 Cal.4th at p. 224.) Thornbrough “was not terminated until the District’s board voted,” and by then “all of the patently unprotected evidence” — the pornography, the insubordination, the recording — “was before the board.” (Ibid.) That, not the date of the original charges, was “the point at which we must determine if the same decision would have been made.” (Ibid.)

The pivotal holding: no concession of mixed motives required. Thornbrough’s most consequential argument was that “because the District never admitted a retaliatory motive, it cannot establish a same-decision defense.” (Thornbrough, supra, 223 Cal.App.4th at p. 198.) The court answered by quoting Harris directly, where the Supreme Court had “rejected this line of argument” in the FEHA setting. The Harris plaintiff had urged that an employer seeking a same-decision showing “must concede that it had mixed motives” rather than “denying a discriminatory motive altogether.” (Ibid., quoting Harris, supra, 56 Cal.4th at p. 240.) The Supreme Court — and now the Third District — held otherwise: “there is no inconsistency when an employer argues that its motive for discharging an employee was legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone would have led to the discharge.” (Ibid.) The defense is thus available in the alternative; an employer does not forfeit it by maintaining innocence.

The burden-of-proof footnote. The court flagged, but did not need to resolve, a related Harris point. Harris held that the “clear and convincing” standard is not required to sustain a same-decision defense under the FEHA, so that “the normal civil standard of preponderance of the evidence would apply in all same-decision cases except where statutes (e.g., Ed. Code, § 44114, subd. (e); Lab. Code, § 1102.6) require the higher standard of proof.” (Thornbrough, supra, 223 Cal.App.4th at p. 197, fn. 23.) Here, both the hearing officer and the trial court had already “held the District to the higher standard of proof,” so the District’s showing was, if anything, over-proven. (Ibid.) The court likewise noted that Harris‘s rule permitting limited declaratory or injunctive relief and fees despite a successful same-decision defense was inapposite, because “we are not reviewing a civil suit filed by Thornbrough.” (Ibid.)

The subsidiary contentions failed too. On notice, the court held that Education Code section 45113, subdivision (c), governs only the minimum time to request a hearing and does not bar amended charges; because Thornbrough received continuances after each amendment and never substantiated his claimed inability to afford more, “no due process violation occurred.” (Thornbrough, supra, 223 Cal.App.4th at pp. 180–181, 184.) On hearing-officer bias, the court found Thornbrough’s disclosure motion — brought after 12 hearing days — both untimely and meritless; unlike Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, the record showed no “open-ended” promise of future employment, and the officer’s statement that he knew of no conflicts “function[ed] as a denial of future employment prospects with the District.” (Id. at pp. 184, 188.) On time-barred conduct, the court held that “so long as one valid legal cause for discipline is established, all relevant facts should be considered in assessing punishment,” and facts behind barred grounds “can be considered when assessing credibility or bias.” (Id. at p. 192.) Any error was harmless: procedural due-process violations “are subject to a harmless error analysis,” and the writ will be denied “despite abuse of discretion” absent prejudice. (Id. at p. 200, quoting Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)

Significance

Thornbrough is one of the first published appellate decisions to apply the mixed-motive framework that the Supreme Court announced months earlier in Harris v. City of Santa Monica, and it does so outside the FEHA — in the public-employee whistleblower and administrative-mandamus setting. Its enduring contribution is the rule, imported from Harris at page 240, that an employer may assert the same-decision defense in the alternative without conceding that any unlawful motive was in play. That answers a recurring tactical objection: plaintiffs frequently argue that a defendant which denies discriminatory or retaliatory intent has thereby disqualified itself from a mixed-motive defense. After Thornbrough and Harris, that objection fails — an employer may say both “we did nothing wrong” and “even if a factfinder thinks otherwise, we would have fired this employee anyway.”

The decision also clarifies the timing of the same-decision inquiry in an ongoing administrative proceeding. Because the operative decision is the board’s final vote, evidence developed during the hearing — here, the contents of the District computer — is properly part of the same-decision calculus, not disqualified “after-acquired” evidence under Cooper. (Thornbrough, supra, 223 Cal.App.4th at p. 198.) For practitioners on either side of a public-discipline mandamus, Thornbrough supplies a clean statement that untainted misconduct, established to the requisite standard, forecloses a retaliation defense as a matter of law — and that a reviewing court may resolve the case on that ground without ever deciding whether the employee’s speech was protected.

Key quotes

“[T]here is no inconsistency when an employer argues that its motive for discharging an employee was legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone would have led to the discharge.” (Thornbrough, supra, 223 Cal.App.4th at p. 198, quoting Harris, supra, 56 Cal.4th at p. 240.)

“Because the same decision—termination—would have been reached regardless of any consideration of allegedly protected speech, we have no need to review Thornbrough’s specific claims regarding such conduct: Thornbrough’s exercise, if any, of his protected constitutional right(s) was irrelevant to the outcome of the instant case.” (Id. at p. 199.)

“[W]hen we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.” (Id. at p. 198, quoting Harris, supra, 56 Cal.4th at p. 224.)

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Practice pointer

Open questions

The court expressly reserved the threshold merits question: it “need not determine whether or not Thornbrough engaged in protected speech,” resting instead on the same-decision showing. (Thornbrough, supra, 223 Cal.App.4th at p. 194; see id. at p. 199.) Whether his reports to the board and grand jury qualified as protected activity under Labor Code section 1102.5 or Education Code section 44112 remains undecided on these facts. The court also left untouched, as inapplicable here, the portion of Harris allowing a FEHA plaintiff to obtain declaratory or injunctive relief and attorney fees notwithstanding a successful same-decision defense — a remedy unavailable in this mandamus posture but live in a civil suit. (Id. at p. 197, fn. 23.) And because both tribunals applied the heightened clear-and-convincing standard, the opinion did not have to test how a same-decision defense fares under Harris‘s default preponderance standard, leaving that application for a future case where the lower standard actually controls. (Ibid.)