Filed 1/21/20 Jurupa Unified School District v. Commission on Professional Competence CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JURUPA UNIFIED SCHOOL DISTRICT,

Plaintiff and Appellant,

v.

COMMISSION ON PROFESSIONAL COMPETENCE,

Defendant and Respondent; D076213

(Riverside Super. Ct. No. RIC1803855)

ALLEN UMBARGER,

Real Party in Interest and Respondent.

APPEAL from a judgment of the Superior Court of Riverside County, Randall S. Stamen, Judge. Affirmed.

Adams Silva & McNally and Kerrie E. McNally for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Law Office of Carlos R. Perez, Carlos R. Perez and Alejandra Gonzalez-Bedoy for Real Party in Interest and Respondent.

I
II
INTRODUCTION

The Jurupa Unified School District (the District) instituted proceedings to terminate the employment of Allen Umbarger, a permanent certificated teacher at Rubidoux High School (RHS), after he and other RHS employees posted messages on social media widely interpreted to be racially insensitive. The message posted by Umbarger stated the cumulative grade point average (GPA) of his classes rose on the Day Without Immigrants, a day in which many students were absent from school as part of a protest and boycott to highlight the importance of immigrant populations. An administrative tribunal determined Umbarger “may have used poor judgment” when posting the message, but his conduct did not reflect evident unfitness for service (Ed. Code, § 44944, subd. (a)(6)) or constitute immoral conduct (§ 44944, subd. (a)(1)) warranting termination. The District filed a petition for writ of mandate to set aside the tribunal’s decision (Code Civ. Proc., § 1094.5), which the trial court denied.

The District appeals the judgment on grounds that it was not supported by substantial evidence. The District contends the only reasonable inference to be drawn from the evidence was that Umbarger was evidently unfit to serve and committed immoral conduct. We believe Umbarger exercised poor judgment and an alarming lack of consideration for the welfare and emotional well-being of the students in his charge. Further, we do not condone Umbarger’s improper message, which—whatever its misguided intention may have been—carried regrettable connotations about race and national origin that Umbarger reasonably should have foreseen.

Nevertheless, we are confined by our limited standard of review, which requires us only to determine whether the record discloses substantial evidence, controverted or uncontroverted, from which a reasonable trier of fact could have ruled in favor of Umbarger. Applying this deferential standard of review, we conclude substantial evidence supported the judgment. Therefore, we affirm.

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IV
BACKGROUND

A
B
Umbarger’s Social Media Post

On February 16, 2017, social activists orchestrated a nationwide protest and boycott called the Day Without Immigrants to draw attention to the societal contributions of marginalized immigrant populations. At RHS, more than 20 percent of the student body was absent from school on the Day Without Immigrants. It is undisputed that many of the absent RHS students participated, or claimed to participate, in the protest and boycott.

On the same afternoon as the Day Without Immigrants, RHS teacher Geoffrey Greer posted a public message on a personal social media account that stated as follows:

“Well. A day without immigrants. Perhaps all the missing workers in all the various industries out there had the intended impact and sent the desired message. I don’t know. As for the public school system, having my class size reduced by 50% all day long only served to SUPPORT [President] Trump’s initiatives and prove how much better things might be without all this overcrowding. [¶] That’s what you get when you jump on some sort of bandwagon cause as an excuse to be lazy and/or get drunk. Best school day ever.”

A second RHS teacher responded to the post stating, “I had fifty absences today,” and, “[i]t was a very pleasant day.”

Then, Umbarger—an Advancement Via Individual Determination (AVID) coordinator and health teacher at RHS—posted a reply to the social media post. Umbarger’s reply, which was publicly accessible, stated as follows: “Unfortunately, statistically my cumulative GPA increased today. Mostly failing students were missing[.]” Thereafter, other RHS teachers and a school counselor posted replies supporting the sentiment of the initial post and generally asserting RHS was quieter and more productive than usual on the Day Without Immigrants.

Local and national media sources reported on the social media thread, which many people perceived as an expression of racist or anti-immigrant sentiment. Greer deleted the post the day he published it, but the thread and the attention devoted thereto caused substantial disruption at RHS. On the day of the post, for instance, the classrooms belonging to Greer and another RHS teacher were vandalized. The following day, hundreds of RHS students walked off the school campus in protest of the thread. Further, the District received more than 250 e-mail complaints regarding the thread from students, community members, and others unaffiliated with RHS or the District.

C
D
Commission on Professional Competence Proceedings

1

The District placed Umbarger on paid administrative leave and, two months later, served him with a notice of intent to dismiss and immediately suspend and a statement of charges. The notice cited two grounds for dismissal: (1) immoral conduct (§ 44932, subd. (a)(1)); and (2) evident unfitness for service (id., subd. (a)(6)).

The notice alleged Umbarger’s reply “insinuated that the immigrant students, and their supporters, had poor/failing grades,” “insinuated that RHS was more successful due to the absence of immigrant students,” and “perpetuated Mr. Greer’s sentiment that immigrant students are lazy and drunk.” It further alleged the post and reply “significantly disrupted the educational and work environment at RHS and throughout the District ….” Although the notice largely pertained to the post and reply, it alleged Umbarger made multiple other racially-offensive comments to students.

Umbarger denied the charges and demanded a hearing with the Commission on Professional Competence (the Commission), the decision of which is deemed to be “the final decision of the governing board of the school district.” (§ 44944, subd. (d)(4).)

2

Before the Commission, the District elicited testimony from RHS’s principal, RHS students, and the District’s deputy superintendent of human resources, among others.

RHS principal Dr. Jose L. Araux testified primarily about the impact of the social media thread on the RHS community and RHS’s response to the thread. He testified the thread was “inappropriate,” “offensive to the immigrant community,” and “racist,” and stated it did not “represent the reality of [RHS] students.” Referring specifically to Umbarger’s reply, Dr. Araux testified the reply conveyed an improper message that “immigrant [students] are the ones that are lowest” academically. Dr. Araux testified Umbarger could not serve as a role model at RHS because the students did not trust him.

One of the District’s student witnesses (Student One) is African-American and testified Umbarger told him a “few times” he could “run fast or jump high because [he is] black.” Student One testified Umbarger “always told a lot of jokes” and he viewed Umbarger’s comments as a “joke.” However, he did not like the comments, he told Umbarger to stop making them, and Umbarger stopped making them.

Another of the District’s student witnesses (Student Two) is Latino and testified about an incident in which he expressed disappointment to fellow students about the outcome of the 2016 national presidential election. According to Student Two, Umbarger intervened and stated, “Oh, it doesn’t matter because you’re going to be gone next week anyways.” Student Two interpreted this statement to mean he was “going to get deported.” He was “shocked” and upset when he heard the comment. Nevertheless, he testified Umbarger was “just a funny guy, like, always saying jokes, being happy,” and he believed Umbarger was a “good” teacher.

Deputy superintendent of human resources Tamara Elzig testified regarding Umbarger’s social media reply and his alleged comments to students. She stated the reply was “appalling” and insinuated “Hispanic students not being in there” raised the GPA of his classroom. She testified Umbarger had been “adamant that [the reply] was not problematic” and never apologized for it. Further, she testified Umbarger should not be permitted to return to his teaching post because the reply was “clearly discriminatory in nature,” he engaged in a pattern of poor judgment, he had a “complete lack of remorse,” and the community lost trust and confidence in him.

3

Umbarger testified on his own behalf and elicited testimony from two current RHS teachers and a current RHS student, among others.

With respect to the social media reply, Umbarger testified he merely intended to convey an innocuous message that lower performing students were missing on the day in question. According to Umbarger, students “that probably could have got [sic] away with missing a few assignments [attended class], but the ones that really needed to be there weren’t there.” He testified he was “disappointed” in his absent students, as evidenced by his use of the word “unfortunately” in the reply. He “didn’t even think” of the racial undertones of the reply, “never meant to cause any harm or for people to be upset,” and believed it had “been taken out of context.” Umbarger testified he regretted the reply, would be willing to make an apology if requested, and would be willing to pursue sensitivity or social media training if requested.

As to the remainder of the alleged misconduct, Umbarger largely admitted he participated in conversations during which the improper statements were made, but testified the students themselves made or instigated the statements at issue. For instance, Umbarger testified Student One told him he had heard he could run faster and jump higher because he is black. Umbarger testified he responded by stating he had “heard that too,” but no studies confirmed the claim and he did not believe it was true. Likewise, Umbarger testified Student Two himself commented he would be deported following the presidential election. Umbarger added, “if [he] did say something like this to [Student Two], [he] in no way intended to offend [Student Two].”

RHS English teacher Janiece Bailey testified on Umbarger’s behalf. She testified Umbarger was a “highly effective” teacher, developed a strong rapport with students, commanded the “respect” of students, and had a “really fun, goofy personality” to which students responded. She also stated, “everyone loves Mr. Umbarger, students and staff alike,” and the school “programs [were] suffering” without him. Bailey did not see Umbarger act inappropriately with students or offend students in any way.

RHS social studies teacher George Monge also testified on Umbarger’s behalf. Monge prepared and sent a letter to the District’s board of trustees expressing support for Umbarger and the other teachers implicated in the social media thread, in which he averred the teachers made “enormous contributions to [the] school” and were “considered valuable and vital members of the wider Rubidoux community.” Monge testified the RHS community “absolutely” would welcome Umbarger back to the school.

Finally, an RHS student who participated in an extracurricular activity coached by Umbarger testified Umbarger was “fun,” “joyful,” and “the life of the school.” He testified the RHS students would forgive him and “[a]ll the seniors want him back.”

In addition, Umbarger submitted his two most recent teacher performance evaluations. According to the evaluations, Umbarger met or exceeded District expectations in each category for which he was evaluated. The narrative portions of the evaluations noted Umbarger fostered a “climate of fairness and respect between students and teacher,” exhibited a “strong rapport with his students,” knew “how to build relationships with students on campus,” and helped “students to appreciate their own identities and to view themselves as valued contributors to society.”

4

The Commission applied the factors enunciated by our Supreme Court in Morrison v. State Bd. of Education (1969) 1 Cal.3d 214 (Morrison), and concluded there was a nexus between Umbarger’s conduct and his fitness to teach. As the Commission explained, “the overall [social media] thread in which [Umbarger] participated” produced “a lot of notoriety” and impacted student learning. The Commission found “[t]eachers and district personnel were also affected because they had to modify their schedules to tend to the problems that arose following the reaction to the [social media] posts.” Thus, Umbarger’s “comment could be construed as adversely affecting students and teachers to the extent that his comment was contained in a [social media] thread that contained other questionable comments directed against immigrants.”

Notwithstanding these findings, the Commission concluded a preponderance of the evidence did not establish Umbarger was evidently unfit for service or engaged in immoral conduct. According to the Commission: “[A] preponderance of the evidence did not establish that [Umbarger’s] actions were attributable to a temperamental defect, inadequacy, or a fixed character trait that was not remediable merely on his receipt of notice that his conduct failed to meet the [D]istrict’s expectations. He was not shown to be unfit, not adapted to a purpose, unsuitable, incapable, incompetent, or physically or mentally unsound to continue teaching. Thus, his conduct did not constitute evident unfitness for service.” Similarly, the Commission concluded Umbarger’s social media reply and his comments to Student One and Student Two “were not flagrant, shameless, inconsistent with public decency, or reflective of a moral indifference to the opinions of others, and that is what must be proven to sustain a charge of immoral conduct.”

In support of its finding, the Commission emphasized that Umbarger experienced no formal discipline over 20 years of teaching, was “extensively involved” in extracurricular activities, and received “uniformly positive” performance evaluations. The Commission noted that all the student witnesses “praised him as a teacher and commended his teaching style.” Further, it found there was “no evidence that [he] treated any group of students differently than other students at any time in his career, or otherwise engaged in discrimination or maltreatment of students in his classroom.”

With respect to the social media reply, the Commission found Umbarger “may have used poor judgment in participating in [the social media] thread that contained other questionable comments,” but found he posted the reply “on his personal time, on his personal phone, on his private [social media] account, after school hours.” The Commission rejected the District’s claim that the reply contained misleading statements, noting the collective GPA of the students who attended his classes on the day of the protest was, in fact, higher than the collective GPA of all the students in his classes. Similarly, the Commission found it was “not technically true” that “mostly” failing students were absent, but Umbarger could have made the statement as an “anecdotal conclusion that the students who were absent, generally, were [the] underperforming students.” The Commission noted that 10 of the 28 students who were absent from Umbarger’s classes on the day in question had a grade of a “D” or an “F.”

The Commission also rejected the District’s claim the post was ” ‘discriminatory,’ ” “racist,” or based on a “stereotype[],” noting that RHS’s student population was approximately 90 percent Latino. Therefore, even assuming all students with unexcused absences were Latino, most of the students who attended class on the day of the protest (71 percent) were also Latino. According to the Commission, this undercut the District’s claim that Umbarger targeted or singled out a group of students based on their race. Further, the Commission found the reply “did not disparage any student,” “comment on race,” “express agreement with any inappropriate comments,” or “contain strong language or other questionable material that showed an inappropriate temperament, an undesirable character trait, corruption, depravity, moral indignation for any class of persons, or contain any material that suggests [Umbarger was] unfit to teach.”

With respect to the remaining alleged misconduct, the Commission found true the allegations that Umbarger made “inappropriate and unprofessional” comments to Student One and Student Two. As the Commission explained, a “clear pattern of conduct that was consistent throughout the testimony” was that Umbarger had a “modus operandi of telling jokes and kidding around with his students,” which likely resulted in him making the comments at issue. The Commission found, however, there was no evidence the statement to Student One was “made out of malice or with invidious intent.” It also found there was no evidence he “intended to demean or offend” Student Two.

Based on the foregoing findings, the Commission granted Umbarger’s appeal and dismissed the statement of charges.

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F
Trial Court Proceedings

The District filed a petition for writ of mandate requesting that the trial court direct the Commission to set aside its decision and enter a new decision dismissing Umbarger. After conducting an independent review of the evidence, the court denied the petition.

According to the court, the evidence “suggest[ed] the existence of a nexus” between Umbarger’s conduct and his fitness to teach for purposes of Morrison, supra, 1 Cal.3d 214. However, the court concluded the Commission did not abuse its discretion in granting Umbarger’s appeal and dismissing the statement of charges. The court found Umbarger “certainly erred by not anticipating that his [social media] comment could be viewed as tacit agreement with Greer’s [social media] post,” but found “his comment did not disparage students or immigrants, did not mention race or national origin, did not express agreement with Greer’s comments, and did not evince a hostility toward the general public.” It further found Umbarger exercised “poor judgment” in making “inappropriate and unprofessional comments to and about his students with racial/national origin undertones,” but his “personal and professional history [did] not suggest that he harbor[ed] racist or anti-immigrant sentiments,” and there was “no evidence that he ever discriminated against students or faculty on the basis of race or national origin.”

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VI
DISCUSSION

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B
Standard of Review

“The decision of the Commission may be challenged in the superior court by means of a petition for writ of mandate.” (Bassett Unified School Dist. v. Commission on Professional Competence (1988) 201 Cal.App.3d 1444, 1450.) In such a challenge, the court must exercise its independent judgment in reviewing the evidence (Ed. Code, § 44945) and, among other inquiries not relevant here, determine whether the Commission abused its discretion in rendering its decision (Code Civ. Proc., § 1094.5, subds. (b) & (c); Wilmot v. Commission on Professional Competence (1998) 64 Cal.App.4th 1130, 1138–1139). “Though the trial court is required to exercise its independent judgment on the evidence, it is to give a ‘strong presumption of correctness’ to the Commission’s findings.” (San Diego Unified School Dist. v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, 1140, 1141 (SDUSD).)

“Following the superior court’s independent review, the scope of review on appeal is limited. ‘An appellate court must sustain the superior court’s findings if substantial evidence supports them. In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ ” (West Valley-Mission Community College Dist. v. Concepcion (1993) 16 Cal.App.4th 1766, 1775.)

C
D
Evident Unfitness for Service

Section 44932 enumerates 11 statutory grounds for dismissal of a permanent teacher of a public school district, including “[e]vident unfitness for service.” (Id., subd. (a)(6).) ” ‘In the context of a teacher, ” ‘evident unfitness for service’ … means ‘clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’ Unlike ‘unprofessional conduct,’ ‘evident unfitness for service’ connotes a fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectation of the employing school district.” ‘ ” (SDUSD, supra, 214 Cal.App.4th at p. 1143.)

On appeal, the District contends there was insufficient evidence to support the trial court’s determination that the Commission did not abuse its discretion when it denied the evident unfitness for service charge. It contends there was no credible or substantial evidence on which the trial court could have relied to support its finding that Umbarger did not “harbor[] racist or anti-immigrant sentiments” and did not “discriminate[] against students or faculty on the basis of race or national origin.” We disagree.

During his testimony before the Commission, Umbarger testified he wrote the social media reply giving rise to the instant dismissal case for an innocuous purpose—to convey his disappointment in his lower-performing students who were absent from his classes and missing an opportunity to learn from him. He explained his disappointment was evidenced by the word “unfortunately” contained within the reply. Further, he testified he “didn’t even think” of the racial undertones of the reply and “never meant to cause any harm or for people to be upset.”

We are troubled Umbarger “didn’t even think” of the apparent connotations and foreseeable consequences of his reply, which students and the broader community alike reasonably interpreted as an unfounded and reprehensible commentary on race and national origin. Nevertheless, Umbarger’s testimony suggests that sheer thoughtlessness—rather than racist sentiment—animated his conduct. As such, his testimony constituted substantial evidence to support the trial court’s determination that the Commission appropriately exercised its discretion. (Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1019 [” ‘[T]he testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact.’ “].)

Other reliable evidence supported the trial court’s determination as well. Umbarger’s teacher evaluations included complimentary assessments on issues relating to inclusivity and the development of a positive learning environment. They stated, among other things, Umbarger fostered a “climate of fairness and respect between students and teacher” and helped “students to appreciate their own identities and to view themselves as valued contributors to society.” Further, Bailey—one of Umbarger’s fellow teachers at RHS—disputed the suggestion that he harbored racist or anti-immigrant sentiments and described him as a highly effective teacher.

Notwithstanding this evidence, the District contends Umbarger’s allegedly problematic character trait—i.e., his alleged harboring of racist and/or anti-immigrant sentiments—is apparent for three reasons: (1) he posted the reply in response to Greer’s social media post, which the District describes as inflammatory, discriminatory, and inappropriate; (2) the reply contained allegedly false statements that perpetuated unwarranted racial stereotypes; and (3) he made inappropriate and race-related comments to Student One and Student Two. To accept these arguments, we would have to ignore the applicable standard of review. Our task “begins and ends with the determination as to whether … there is substantial evidence, contradicted or uncontradicted,” to support the trial court’s determination. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.) Because such evidence supports the trial court’s determination, our inquiry is at an end.

Even if it were necessary for us to assess the District’s contentions, they do not compel us to reverse the judgment. While Umbarger posted the reply in response to Greer’s problematic post, he did not refer to or endorse the offensive sentiments leading Greer to conclude that the Day Without Immigrants was the “[b]est school day ever.”

Further, Umbarger’s grade books demonstrated the collective GPA of the students who attended class on the Day Without Immigrants was, in fact, statistically higher than the collective GPA of all the students in his classes and 10 of the 28 students who were absent on the Day Without Immigrants had a grade of a “D” or an “F” in his class. Therefore, while Umbarger exercised unnecessary hyperbole in stating “[m]ostly failing students were missing” from his classes, the cumulative GPA of the students who were absent on the day in question lends support to Umbarger’s position—credited by the trial court—that the reply was not overtly biased or discriminatory.

Finally, there can be no dispute that the comments Umbarger made to Student One and Student Two were indecent and unwise. No teacher should, and in our opinion no reasonable teacher would, view such comments as appropriate. Even so, we cannot ignore that Student One testified Umbarger stopped making improper comments to him after he notified Umbarger they offended him. Student One’s testimony suggests Umbarger did not possess a fixed or irremediable character trait demonstrating evident unfitness for service. (SDUSD, supra, 214 Cal.App.4th at p. 1143.)

As prefaced at the outset of our opinion, we do not excuse the reply Umbarger posted or the statements he made to Student One and Student Two. There simply is no justification for these statements. In our view, they reflect poor judgment and are unbefitting of a teacher, particularly one whose primary responsibility is to motivate and assist college bound students in a predominately Latino high school. In fact, had any members of this panel stood in the shoes of the trial court, we very well may have reached different determinations than the ones presented to us in the appellate record, directed the Commission to vacate its determination, and ordered the dismissal of Umbarger.

Nonetheless, as we have explained, we are constrained by the governing standard of review. Under that standard of review, ” ‘[i]f ” ‘there is “substantial evidence,” the appellate court must affirm … even if the reviewing justices personally would have ruled differently had they presided over the proceedings below, and even if other substantial evidence would have supported a different result.’ ” ‘ ” (People v. Mary H. (2016) 5 Cal.App.5th 246, 262.) Because such evidence exists here, we affirm.

E
F
Immoral Conduct

The second statutory basis for dismissal alleged in the statement of charges was “[i]mmoral conduct” pursuant to section 44932, subdivision (a)(1). ” ‘ “The term ‘immoral’ has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.” ‘ ” (San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1466.)

The District contends there was insufficient evidence to support the trial court’s determination that the Commission did not abuse its discretion when it denied the charge of immoral conduct. The District relies on the same arguments previously discussed and contends the evidence indisputably demonstrated that Umbarger posted the social media reply to provoke an inflammatory response from the community and to express a biased, hateful, and discriminatory viewpoint—an act the District describes as hostile to the welfare of the general public.

In the previous section, we outlined the evidence from which it could reasonably be determined that Umbarger did not intend to express a biased, hateful, or discriminatory message, but rather intended to convey an innocuous, albeit ill-advised, message of disappointment in his underperforming students. Such evidence includes Umbarger’s testimony, the testimony of Umbarger’s fellow teachers and students, and the performance evaluations praising Umbarger on issues pertaining to inclusivity and promotion of self-identity. This same evidence constituted substantial evidence from which the trial court could have determined the Commission did not abuse its discretion when rendering its findings and conclusion on the charge of immoral conduct.

VII
VIII
DISPOSITION

The judgment is affirmed. Umbarger is entitled to his costs on appeal.

McCONNELL, P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.