# Kimble v. Board of Education

> California Court of Appeal · June 26, 1987 · 192 Cal. App. 3d 1423

URL: https://www.frixlaw.com/law-library/cases/9718713

## Case

- **Full name:** MARIETTA KIMBLE, Plaintiff and Appellant, v. BOARD OF EDUCATION OF THE CITY OF LOS ANGELES Et Al., Defendants and Appellants
- **Court:** California Court of Appeal
- **Decided:** June 26, 1987
- **Citations:** 192 Cal. App. 3d 1423; 238 Cal. Rptr. 160; 1987 Cal. App. LEXIS 1866
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** Lillie, Johnson
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718713

## Opinion text

JOHNSON, J.
I respectfully dissent from the portion of the majority opinion reversing the writ of mandate. Although I do not believe the trial court had the authority to order Ms. Kimble be placed on sick leave pursuant to Education Code section 44942, I do believe there was substantial evidence to support the finding emotional disturbance prevented Ms. Kimble from filing a timely request for a hearing. Therefore, I would modify the trial court’s judgment to direct the respondents to treat Ms. Kimble’s request for a hearing as timely filed and to proceed accordingly.
1. There Was Substantial Evidence to Support the Finding Emotional Disturbance Prevented Ms. Kimble From Making a Timely Request for a Hearing
I have no quarrel with the substantial evidence test applied by the majority. (Majority opn. at pp. 1427-1428.) I would only add that in examining the *1432 sufficiency of the evidence an appellate court must take into account “all inferences which might reasonably have been thought by the trial court to lead to [its] conclusion.” (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142 [ 134 P. 1157 ]; Evid. Code, § 600, subd. (b).)
In the case before us, Ms. Kimble testified without contradiction she did not open the district’s letter which contained the notice of intent to dismiss and the right to request a hearing. There had to be some reason for her failure to do so.
The record is replete with evidence that, at the time of her dismissal, Ms. Kimble was psychologically unable to rationally deal with matters pertaining to her teaching ability including the effect her health problems were having on her competency as a teacher. This irrationality was evidenced by a persistent denial any problems existed. In short, Ms. Kimble refused to face facts. The doctors who examined Ms. Kimble repeatedly referred to her denial of problems relating to her teaching and her health.
In his first examination report, in 1980, Dr. Walker observed: “Mrs. Kimble denied having any difficulties of any kind [and] expressed the opinion that there was no particular need for a psychiatric evaluation since she felt well.” In a follow-up examination, in June 1983, Dr. Walker reported Ms. Kimble had not been following recommended therapy for her anemia. He went on to observe: “[T]here is a repeated lack of insight into the significance of some of the problems or an actual denial of their existence. ...[¶] [E]ach time an issue was brought up which might possibly have been interpreted as being critical of her, she was quick to deny its importance____ [¶] Apparently the patient’s judgment is impaired in that she denies having had any problems of consequence in the last school where she was teaching and denied that she had any problems with the school children that have raised a question as to her capacities as a teacher.” (Italics added.)
Dr. Magara testified when Ms. Kimble came to her office, “she acted perfectly normal but the fact [s7c] she had all this denial... she was unable to face facts, that she was performing as a very poor teacher....This patient had a lot of denials ... she didn’t accept the fact she needed to have some care.” (Italics added.)
In challenging the sufficiency of the evidence, the district relies on Ms. Kimble’s deposition testimony which, it claims, shows at the time of her dismissal Ms. Kimble was competently handling her personal affairs—managing her household, paying her bills, and filing her income tax returns. The district placed great emphasis on Ms. Kimble’s testimony denying any physical or mental condition prevented her from opening the dismissal *1433 notice from the district. But this testimony could be viewed as entirely consistent with Ms. Kimble’s previous denials of any mental or physical problems.
Given the evidence of Ms. Kimble’s mental illness and the district’s failure to produce evidence of any other reason, the court could reasonably infer her deteriorated mental condition was the cause of her failure to open the district’s letter. Indeed, her failure to open the district’s letter was consistent with her overall behavior at the time with respect to the school district. The evidence shows a consistent denial by Ms. Kimble any problem existed with her teaching and a refusal to admit she had a mental problem. She even hid from her mother the facts of her successive demotions and ultimate dismissal. Failure to open the district’s letter was consistent with her pattern of denying what the district, through her supervisors and physicians, had been telling her for four years. She simply “turned off” the message.
In order to reverse the judgment the majority dismisses all the evidence described above as irrelevant to “competence or incompetence in opening envelopes.” (Majority opn. at p. 1431.)
To the contrary, denial is a well-recognized psychological phenomenon which bears directly on Ms. Kimble’s “competence ... in opening envelopes.” In denial, external reality is rejected and replaced by wish-fulfilling fantasy or behavior. (See Hinsie & Campbell, Psychiatric Dictionary (3d ed. 1960) at p. 197; Freud, The Ego and the Mechanisms of Defense (1966) at pp. 89-90, 174.) To me, Ms. Kimble’s failure to open the letter from the school district exemplifies an “ego resort[ing] to denial in order not to become aware of some painful impression from without.” (Freud, supra, at p. 89.)
2. Section 44942 of the Education Code Does Not Require a School District to Afford a Mentally III Employee With Time to Recover Before It Initiates Dismissal Proceedings
Although the trial court found excusable neglect in Ms. Kimble’s failure to file a timely request for hearing it did not order the district to provide a hearing. Instead, the trial court ordered the district to place Ms. Kimble on sick leave subject to reinstatement under the procedures contained in section 44942. The court’s order prohibited the district from holding a hearing on her dismissal until the procedures set forth in section 44942 have been exhausted.
The trial court erred in construing the procedures in section 44942 as a prerequisite to dismissing a mentally ill teacher. I base this conclusion on the statutory language of the Education Code and its legislative history.
*1434 Section 44932, subdivision (a) provides: “No permanent employee shall be dismissed except for one or more of the following causes:....(4) Incompetency....(6) Physical or mental condition unfitting him to instruct or associate with children.” Section 44942 provides in relevant part: “(a) Any certificated employee may be suspended or transferred to other duties ... if the board has reasonable cause to believe that the employee is suffering from mental illness of such a degree as to render him incompetent to perform his duties....(f) ... [T]he governing board may ... place the employee on mandatory sick leave of absence....” (Italics added.)
In contrast to the discretion vested in the district by section 44942, the Legislature has provided the district “shall not” dismiss a teacher for “incompetency ” unless at least 90 days before initiating the proceeding it has notified the teacher of the nature of the charges against her so as to “furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge.” (§ 44938, subd. (b).) “Incompetency” as used in section 44938, subdivision (b) “means, and refers only to, the incompetency particularly specified as a cause for dismissal in Section 44932.” (§ 44938, subd. (c).) Because “incompetency” is a separate ground for dismissal from “mental condition” under section 44932 (see ante), it is clear the 90-day corrective period mandated by section 44938 does not apply to cases of mental disability. (Cf. Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 813 [ 4 Cal.Rptr. 286 ].)
Historically, the Legislature has never recognized a mentally ill teacher has the right to an opportunity for rehabilitation prior to dismissal. From the time of the School Code (Stats. 1929, ch. 23) to the present, the district’s power to dismiss and its power to grant leave for purposes of rehabilitation have run on separate tracks. For example, in a case upholding a teacher’s dismissal for a “mental condition unfitting her to instruct” the appellate court held the teacher was not entitled to a 90-day notice and opportunity to correct her deficiency under section 5.652 of the School Code because that section expressly excepted physical and mental disabilities. (Board of Education v. Mulcahy (1942) 50 Cal.App 2d 418, 424 [ 123 P.2d 114 ].) Former section 5.652 of the School Code is now section 44938 of the Education Code. The section continues to exclude mental disability from the 90-day period to which a teacher is entitled to overcome the grounds of discharge. (See Discussion, ante; and see George, Dismissal of Permanent Teachers (1963) 3 Santa Clara L.Rev. 164.)
In support of the trial court’s order, Ms. Kimble cites dictum in Board of Trustees v. Porini (1968) 263 Cal.App.2d 784, 789 [ 70 Cal.Rptr. 73 ], in which the court stated: “[T]he Legislature has intended that a tenured teacher shall not suffer permanent termination of her employment unless *1435 and until it has been proven by the school board that her disability is in fact permanent or, as an alternate cutoff period, that it has lasted for a total of two years.”
Porini arose at a time when a tenured teacher could only be dismissed through a superior court judgment on a complaint brought by the school board. (See former § 13412.) At that time, former section 13437 provided: “[I]n lieu of dismissal the judgment may require the employee to take a leave of absence for only such period as may be necessary for rehabilitation from the incompetency.” Subsequent to Porini, the authority to dismiss teachers was transferred to the school board subject to review by administrative mandamus and section 13437 was repealed. (Stats. 1976, ch. 1010.) Porini held there was insufficient evidence the teacher suffered from a mental disability. (Id., at p. 789.) Therefore, it was a moot point whether the statutory provision “the judgment may require the employee to take a leave of absence” mandated the superior court to enter such a judgment in cases of mental disability. Porini is unpersuasive authority for the judgment entered in the case before us.
Often a court is faced with a situation where it believes the Legislature is following a wrong, even harmful, policy. It may be requiring a school district to provide a mentally ill teacher an opportunity for rehabilitation, as the trial court did in the instant case, is a better public policy than the one chosen by the Legislature. Be that as it may, it is not the job or the office of the courts to overrule the policy choices of the Legislature. (Lucas v. City of Los Angeles (1938) 10 Cal.2d 476, 485 [ 75 P.2d 599 ].)
The appropriate relief in this case would have been to order the district to treat Ms. Kimble’s March 6, 1984, request for a hearing as timely filed. At the resulting hearing the district may, depending on the evidence produced, determine sick leave in lieu of dismissal is the proper disposition of the matter. Indeed the evidence before the board may so strongly support the sick leave option it would represent an abuse of discretion to dismiss Ms. Kimble. But that was not the grounds of the trial court’s decision in this case nor had the board held a hearing or considered evidence on this issue.
A petition for a rehearing was denied July 21, 1987. Johnson, J., was of the opinion that the petition should be granted. The petition of plaintiff and appellant for review by the Supreme Court was denied October 15, 1987.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718713. Public record. Not legal advice.