Metropolitan News-Enterprise


Thursday, February 2, 2012


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High Court Denies Review of Race Bias Ruling Involving LAUSD 




The California Supreme Court yesterday left standing a ruling by the Court of Appeal for this district, rejecting a local educator’s race bias suit against the Los Angeles Unified School District.

The justices, at their weekly conference in San Francisco, unanimously denied Michael A. Wells’ petition for review.

The plaintiff claimed that his transfer following a sexual harassment investigation was actually motivated by race. But Div. Four ruled that Wells, a former student instructional leader, presented no evidence that his transfer from Verdugo High School was retaliatory or race-based.

Wells, who represented himself on appeal, was investigated by the district after Assistant Principal Melissa Burke complained about a June 2006 incident of what Burke termed sexual harassment.

Burke, who had volunteered to participate in a “dunking booth” as part of a student fundraiser, used a restroom to change out of her wet clothes, then left her bra hanging on the doorknob. Wells photographed it with his cellular phone and disseminated the photo to at least two others.

Harassment Allegation

Principal Cheryl Dellepiane referred Burke’s complaint to the district, which reassigned Wells to its offices pending the investigation. Wells then complained that Burke harassed him by leaving the bra on the doorknob.

The district found Wells’ complaint to be without merit. It also concluded that Wells had refused to cooperate with the initial investigation by the principal, and that as a result he could no longer work effectively at Verdugo.

He subsequently took a medical leave, then resigned.

Wells later joined four other plaintiffs in filing a lawsuit, but his case was severed and some of his claims were dismissed, leaving him with causes of action for sexual and racial harassment, retaliation, and failure to take preventative action. In addition to the bra incident, he claimed that Burke had asked him out on a date earlier in the school year and had called him on his cellular phone to “harass” him about his work performance.

Discovery Sanction

Los Angeles Superior Court Judge Yvette Palazuelos barred Wells from presenting evidence about the alleged phone calls from Burke, as a discovery sanction. Wells moved to disqualify the judge, claiming she was biased against his attorney and had a particular bias because she had testified as a witness for the City Attorney’s Office in an unrelated suit.

The motion to disqualify was denied. Palazuelos subsequently granted summary judgment, finding that there were only two instances of conduct that might be considered harassment of Wells and that they were not sufficiently severe or pervasive to constitute a hostile work environment.

The judge also found that there was no evidence of quid pro quo discrimination or of discrimination based on race.

On appeal, the plaintiff contended that the motion to disqualify should have been granted under Code of Civil Procedure Sec. 170.1, but Presiding Justice Norman L. Epstein, writing for the court, noted that the denial of such a motion is only reviewable by writ of mandate, which Wells did not seek.

Turning to the merits, the presiding justice agreed with the trial judge that there was no showing of a triable issue on any cause of action. None of the plaintiff’s evidence pointed to intentional misconduct by school officials or a hostile work environment, Epstein said.

Nor, Epstein wrote, did Wells offer any evidence to back up his claim that the district used a racial double standard in sexual harassment investigations.

“District provided a legitimate reason for investigating appellant—Burke’s sexual harassment complaint—and corroborated it with admissible evidence,” the jurist explained. “Dellepiane attempted to investigate the incident informally and determine whether Burke’s claim had merit, but appellant refused to participate.  It was his refusal to cooperate, not his race, that led to the matter being referred to District and the commencement of a formal investigation. “

The case is Wells v. Los Angeles Unified School District, B22059.

Other Action

In other conference action, the justices declined to review a First District Court of Appeal ruling rejecting Philip Kay’s civil rights suit against the State Bar of California. Kay, who has handled a number of high-profile sexual harassment cases, one of which resulted in a multi-million dollar judgment against Baker & McKenzie in the 1990s, drew a three-year suspension for numerous acts of misconduct in 2010.

The First District rejected his claims that he was denied due process in the disciplinary proceedings. He earlier lost a bid to sue the State Bar in federal court, as the Ninth U.S. Circuit Court of Appeals ruled that the district court properly abstained, under Younger v. Harris, from interfering with a state administrative proceding.


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