Classified Management Employee’s Misconduct Justified School District’s Termination of Employment, Despite Protected Speech

A school district classified management employee sought to overturn his dismissal from employment, which he alleged was in retaliation for engaging in protected speech.  A California court of appeal held that, given the evidence of the employee’s insubordination, misuse of the school district’s computers, and retaliation against other employees, the school district was justified in terminating his employment based on the misconduct unrelated to the potentially protected speech.  (Thornbrough v. Western Placer Unified School District (December 23, 2013, C068317) --- Cal.Rptr.3d ----, Cal.App. 3 Dist.).

Michael Thornbrough worked as an assistant director of maintenance for the Western Placer Unified School District (“District”).  In 2006, Thornbrough and his supervisor reported suspected wrongdoing involving District construction projects.  Next in 2007, District and Thornbrough settled a disciplinary action involving misconduct by Thornbrough.  District placed Thornbrough on unpaid leave for 15 days and required him to undergo sexual harassment prevention training.

After Thornbrough returned to work, he engaged in further misconduct. Charges were issued, a hearing held, and a hearing officer recommended that District terminate Thornbrough.  The District adopted that recommendation.  Thornbrough pursued a writ of mandate to overturn his dismissal.  The trial court found that Thornbrough’s reports of wrongdoing were not legally protected speech and that “his termination was justified based on misconduct unrelated to claimed protected speech.”  On appeal, Thornbrough claimed multiple violations of due process and retaliation for protected speech.

The appellate court concluded that although “Thornbrough was involved in raising public awareness of problems arising from District construction projects,” there was ample evidence of misconduct to support his termination and the misconduct was not related to his alleged protected speech.  The appellate court found that Thornbrough displayed blatant insubordination to his supervisor, used his work computer for private purposes, including storing pornography, and he retaliated against employees who had filed harassment claims against him.  

The appellate court found that it did not need to determine if he engaged “in protected speech because both the hearing officer and the trial court found that other facts amply justified termination, and such finding is sufficient, as a matter of law, to obviate Thornbrough’s retaliation defense.”  The appellate court noted that the evidence supported the trial court’s conclusion that District would have terminated Thornbrough regardless of whether he engaged in any of the allegedly protected activity.  The appellate court concluded that “Thornbrough’s exercise, if any, of his protected constitutional right(s) was irrelevant to the outcome of the instant case.”

The appellate court next held that the Thornbrough’s due process rights were not violated by the District’s various amendments to the charges because he was given continuances when the charges were amended.  Thornbrough also failed to show that the hearing officer was biased, or had a financial interest, or was seeking future business with the employer. 

What Does This Mean To You?

The primary substantive holding by the appellate court in Thornbrough allows public sector employers to dismiss managers for substantiated misconduct, even if the employee engages in arguably protected speech.  In key procedural rulings, the appellate court affirmed the common practice in classified employee dismissal hearings of using attorneys from law firms who do not represent the school district as hearing officers, so long as there is no provable bias or financial incentive for the hearing officer to support the District position.