In Farahani v. San Diego Community College District, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., July 28, 2009) a California Court of Appeal considered whether a “last change agreement” between a community college and a faculty member under which the faculty member waived his statutory due process rights relating to a disciplinary matter is invalid under Education Code section 87485. The Court of Appeal held that section 87485 renders the agreement “null and void.”
Facts
Sam H. Farahani (“Farahani”) was a tenured professor at Mesa College and worked for the San Diego Community College District (“District”) for 18 years prior to District terminating him in June 2006. District received numerous complaints from female students and staff regarding unwanted sexual and social advances made by Farahani. District gave Farahani a written reprimand in October 2000 for misconduct related to these complaints.
District sent Farahani a “Notice of Pre-Disciplinary Hearing: Suspension” on September 20, 2004, which threatened a one-year suspension without pay for “a continuing pattern of inappropriate behavior toward students and employees over several years.” No hearing took place. Instead, in November 2004, the attorney for the American Federation of Teachers Guild, California Federation of Teachers Local 1931 (“Union”) presented Farahani with a “last chance agreement” (“Agreement”). The attorney told Farahani that District would suspend him for a year if he did not sign the Agreement. The Agreement provided that Farahani must accept a reduction in pay equal to a month’s salary and he must refrain from conduct that constitutes sexual harassment for 18 months. The Agreement also provided “that if Farahani failed to comply with its provisions he could be ‘terminated at the Chancellor’s discretion, without the issuance of charges under the Education Code or District policies and without right of appeal . . . .'” The Agreement contained a “Release” which included the following: “‘Farahani waives any and all appeal rights he may otherwise have to challenge the discipline or otherwise pursue any appeal relating to the pre-disciplinary notice.'” Although Union’s attorney told Farahani that the agreement was probably not legal, he encouraged Farahani to sign the Agreement and Farahani followed his advice.
During the 18 months the Agreement was in effect, District received new complaints from female employees about Farahani’s behavior. The Chancellor terminated Farahani on June 9, 2006. District sent Farahani a termination letter that stated, “Since you are being terminated from employment because of a violation of the [Agreement], you do not have a right of appeal.” Farahani requested reinstatement and an opportunity to meet with District’s governing board, but he received no response from District. Farahani’s attorney wrote a letter to District demanding reinstatement but District replied that, under the terms of the Agreement, Farahani was not entitled to the issuance of formal charges or a right to appeal.
Farahani filed a lawsuit against District. The trial court found in favor of Farahani. District appealed the trial court’s decision.
Decision
The Court of Appeal held that Education Code section 87485 renders the Agreement “null and void.” Education Code section 87485 provides, “Except as provided in Section 87744, any contract or agreement, express or implied, made by any employee to waive the benefits of this chapter or any part thereof is null and void.” The benefits referred to include “due process rights granted to community college faculty members in disciplinary matters including the right to notice, opportunity to object, a hearing before an arbitrator or administrative law judge, and a decision by the governing board.” District asserted that section 87485 is inapplicable to the Agreement and Release at issue. The Court of Appeal disagreed.
Education Code, Title 3, Division 7, Part 51, Chapter 3 governs the rights of community college faculty members. “By its terms, section 87485 renders null and void any agreement to waive the benefits of Chapter 3, ‘Employment.’” The only exception authorized by section 87485 pertains to reductions in force under section 87744. The Agreement attempts to waive statutory rights granted by Chapter 3 of the Education Code. Thus, the court concluded that the Agreement and Release signed by Farahani were “null and void” under section 87485.
The court rejected District’s defenses of laches and unclean hands. District was not prejudiced by Farahani waiting nine months after his termination to file his petition or by Farahani’s failure to challenge the Agreement at the time he signed it. District argued Farahani signed the Agreement with no intention of performing its terms. The court found the unclean hands defense was not applicable because District presented Farahani with two illegal options and Union’s attorney told Farahani to sign the Agreement.
The court also rejected District’s claim that Farahani failed to exhaust his administrative remedies before filing his lawsuit. The exhaustion of administrative remedies doctrine provides that “where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy [must be] exhausted before the courts will act.” The doctrine applies where a collective bargaining agreement “provides grievance and arbitration machinery for the settlement of disputes.”
District argued that Farahani was required to complete the grievance procedure provided by the collective bargaining agreement (“CBA”) to which he was a party. District claimed that the word “appeal” in the termination letter only applied to statutory hearing and appeal rights, not those available under the CBA. The court rejected this argument finding that “the same exception applies to either type of ‘appeal.’” A plaintiff need not exhaust statutory administrative remedies “if the agency has already rejected the claim, announced its position on the claim or made it clear it would not consider the plaintiff’s evidence.” Similarly, an employee does not have to exhaust the grievance procedures under a collective bargaining agreement “if the employer repudiates those procedures.” If an employer repudiates such grievance procedures, the employer may not rely on this conduct as a defense to an employee’s cause of action.
The court found that “District was estopped by its own conduct from relying on the exhaustion doctrine.” District twice informed Farahani that he had no right to appeal. The District’s denial of Farahani’s appeal rights “was unequivocal and encompassed all avenues of appeal.” Also, Union’s president approved the Agreement, a fact which “supports the conclusion that the participants were aware of the collective bargaining rights Farahani was signing away.”
What This Means To You
This court decision makes it much more difficult for community college districts to enter into “last-chance” agreements with problem employees. Community college district, and by analogy K-12 district and County offices will have to use more formal methods of progressive discipline instead of “last chance” type agreements.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Diana Halpenny | 916.321.4500