Probationary Teacher Dismissal Upheld – It Doesn’t Pay to Evade Service of Termination Notice

We are often asked by school district employees whether it’s good strategy to make themselves scarce when it comes time to receive a March notice regarding a possible layoff. Generally, avoiding service of notices is not a good practice, and a case from the court of appeal highlights the problem.

In Sullivan v. Centinela Valley Union High School District, a probationary teacher was terminated after two years of service. The stakes were high for the teacher, for if the school district did not properly notify him by March 15 pursuant to Education Code section 44929.21 (b), he would be “deemed reemployed” and would automatically attain tenured status upon being retained for the following school year.

The teacher contended that the District did not serve him with notice by the March 15th deadline, but the district maintained that the teacher was “evading” service and therefore the deadline should not restrict the district’s ability to terminate him.

Although the governing statute (section 44929.21) requires notice, it does not specify a particular method of service.  In a leading case, Hoschler v. Sacramento City USD, 149 Cal.App.4th 258 (2007), the court of appeal held that since the statute was silent on the point, the notification requirement of section 44929.21 (b) “contemplates personal service or some other method equivalent to imparting actual notice.”

Mr. Sullivan contended that the school district violated the deadline when it served him a day late with the required notice.  However, he had attended a Board meeting where his dismissal was acted upon and he knew the notice was coming; indeed, when the notice arrived on March 15th a woman named Rita Sullivan signed for it, but Mr. Sulivan contended she was not authorized to do so.

The court denied Sullivan’s claim for relief, concluding: “In this case, we hold a probationary teacher may not assert failure of service under section 44929.21, subdivision (b) when the probationary teacher avoids service where, under the circumstances, it reasonably can be inferred the teacher did so with knowledge of the non-retention decision.  Based upon substantial evidence in the record, we invoke the exception here, and affirm on those grounds.  We also affirm on the alternative grounds that Sullivan had actual notice, as required by Hoschler, before the statutory deadline.”

While dismissal notices are difficult to deal with, they are also a fact of life. Evading service will not avoid the consequences. However, if the notice is not served properly, there is ample authority to void it (see Hoyme v. Board of Education, 107 Cal.App.3d 449 (1980)).

For your convenience, a copy of the Sullivan decision is attached.

Slote & Links regularly advises public and private school employers, employee unions and individual employees about various legal issues that arise in the workplace, whether under the Labor Code, the Education Code, collective bargaining agreements, or otherwise. Feel free to contact us if you need assistance in this area.

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