On June 1, 2010, former DMUSD superintendent Sharon McClain's attorney Elbie J. Hickambottom, Jr. of Gronemeier & Associates sent a letter to the DMUSD Board of Trustees reiterating Sharon McClain's prior request for a statement of cause(s) for her termination.
Hickambottom notes that by exercising her right to air the Board action terminating her employment contract in public session, McClain also waived her right to prevent potentially adverse information regarding her job performance from being publicized.
If McClain's lawsuit goes to trial, Hickambottom says he will file a motion to prevent any information about the reasons for McClain's termination that are not in the public record from being presented in court.
The Board of Trustees has until June 13 to satisfy McClain's request.
The letter from McClain's attorneys follows:
June 1, 2010
Steven McDowell, President
stevenatdmusd@yahoo.com
Dr. Annette Easton, Member
aeaston@san.rr.com
Doug Perkins, Member
doug4dmusd@yahoo.com
Comischell Rodriguez, Member
comischell@aol.com
Katherine White, Member
kwhite@shwx2.com
Board of Trustees
Del Mar Union School DistrictRe: McClain re Del Mar USD
Dear President McDowell and other Members of the Board of Trustees:
Dr. Sharon McClain has requested that the Board of Trustees provide her with a statement of cause(s) for her termination; to date, the Board of Trustees has failed to provide such a statement of cause(s). This letter reiterates her request.
As a general matter, the rationale for a governmental action such as the Board of Trustees’s termination of Dr. McClain’s employment contract on March 31, 2010, purportedly for cause, is determined based upon the rationale publicly articulated at the time of the governmental action. (1) For sound policy reasons, California law generally disfavors discovery during litigation of the subjective motivations of members of governing boards for their actions as a board; one of the benefits of that policy is that it spares members of a governing board the burden of having to respond to deposition or trial discovery of their subjective motivations.
Moreover, where employers fail to articulate the rationale for employment terminations at the time employees are discharged, the law allows juries to draw an adverse inference to employers that their subsequently articulated rationales are false rationales invented post-hoc to cover-up an unlawful motivation. (2)
Dr. McClain exercised her right to have the Board of Trustees’s action terminating her employment contract aired in a public session rather than in a closed session; she thereby waived any privacy right that entitled her to prevent assertedly adverse information about her performance that would presumably be the purported cause for terminating her employment contract from being publicly presented at the public session. Despite that waiver, the Board majority – and Mr. Shinoff, its representative who spoke at the March 31 meeting – failed to articulate during the meeting any cause for Dr. McClain’s employment termination. No closed session could legally have occurred concerning her termination given Dr. McClain’s exercise of her statutory right to require all proceedings concerning her termination be held publicly. (3) After the Board acted, Dr. McClain sent the Board of Trustees a request for a statement of cause(s), but the Board still has not articulated any cause for Dr. McClain’s employment termination.
As you presumably know, Dr. McClain’s position is that there is no good cause for the termination of her employment; rather, the three members of the Board majority asserted that there was cause simply for the purpose of trying not to make the contractual payment required for a termination without good cause. We would be pleased to proceed to litigate Dr. McClain’s entitlement based upon the current record of the Board of Trustees’s refusal to articulate any cause – i.e., its refusal at the time of the Board’s action and its refusal subsequently when Dr. McClain directly and now I on her behalf have requested a statement of cause(s). In a superior court action, you can expect that we will, among other things, file an in limine motion to restrict DMUSD to using the rationale in the public record rather than relying on Board Members to post-hoc assert their purported subjective motivations; that of course would leave the Board of Trustees without any cause to defend its position. If you would seek the advice of an independent and competent employment lawyer with trial experience on employment cases, I think you would get the sound advice that your stonewalling on the Board’s purported cause(s) for Dr. McClain’s employment termination is taking you down a dangerous road.
Our office has drafted a government code claim that is ready to be filed with the District in order to exhaust any claims-presentation requirements prior to filing a lawsuit. We will hold off filing it until June 13 to give the Board one last chance to publicly satisfy Dr. McClain’s request that the Board communicate the cause(s) for Dr. McClain’s employment termination. If the Board majority does not articulate the cause(s) for Dr. McClain’s employment termination, it will have to live with the consequences. Please govern yourselves accordingly.
Sincerely,
GRONEMEIER & ASSOCIATES, P.C.
By Elbie J. Hickambottom, Jr.
Attorneys for Dr. Sharon McClain
(1) See, e.g., County of Los Angeles v. Superior Court (1975) 13 Cal. 3d 721, 724-725.
(2) See, e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp. (1st Cir. 2000) 217F.3d46, 56 (summary judgment reversed where employer did not give the employee reasons for her terminating when it occurred but rather prepared a memo claiming performance deficiencies several weeks later when it became concerned the employee might file suit).
(3) If the Board of Trustees had discussed its purported cause for termination in closed session, doing so would have violated the Brown Act and thereby voided any action taken. Dr. McClain is not alleging that the Board did illegally determine its rationale; rather, she assumes that the Board did not violate the Brown Act.
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