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Judge refuses to grant early return of teacher

Will consider district’s appeal in early December

Rick Monroe

Special to the Village News

A Fallbrook teacher will have to wait until December to see if a judge will allow her to return to work in the Fallbrook Union Elementary School District. She was terminated a year ago for refusing mandatory testing for COVID-19.

The Commission on Professional Competence ruled in June that Jennifer Humphreys’ dismissal should be reversed and she should return to teaching with back pay. The FUESD appealed that decision to the Superior Court in San Diego in August.

Humphrey’s attorney, Jonathan Y. Vanderpool of Smith Steiner Vanderpool, filed a “cross-writ” in hopes Judge Keri Katz would order the district to immediately reinstate and reimburse Humphreys. However, the judge declined the request at the Sept. 20 hearing in San Diego.

“The trial court declined to order reinstatement/reimbursement on an “emergency” (ex parte), adamant that neither were ‘irreparable’ or imminent ‘danger’ harms that can’t be sufficiently addressed/compensated in due course,” Vanderpool explained in an email reply.

The attorney added that the judge asked for a thorough record, including preserving requests for interest owed on the unpaid monies if/when required.

Katz set the following schedule going forward:

• Oct. 20, CPC’s administrative record to be provided and certified by all counsel.

• Nov. 3, opening briefs in support of district’s writ and Humphrey’s cross-writ to be filed and e-served.

• Nov. 14, opposition briefs to be filed and e-served.

• Nov. 18, reply briefs to be filed and e-served.

• Dec. 1, 1:30 p.m., hearing on writs in Dept. C-74 on the sixth floor, 330 W. Broadway, San Diego.

“The Court set an aggressive, yet reasonable, time frame for the parties to brief and be heard on all the issues,” wrote the school district’s counsel, Jonathan A. Pearl of Dannis Woliver Kelley in an email.

Pearl also explained the district’s position in appealing the CPC’s decision:

“The commission should have upheld Ms. Humphreys’ dismissal from district employment. The commission found that Ms. Humphreys willfully refused to perform regular assignments without reasonable cause when she refused to follow the testing requirements of the state public health order. The commission ruled that ‘there is no question’ that the district ‘was required to comply with the CDPH Order,’ that Ms. Humphreys ‘failed to communicate,’ ‘ignored repeated requests to get tested,’ and acted ‘insubordinate.” Her willful refusal to test occurred when we were in the midst of the pandemic and without vaccines for so many of the district’s students.”

Humphreys was dismissed last October after failing to be vaccinated or undergoing weekly testing for COVID 19. The CPC heard testimony from Humphreys and her team, as well as the district’s position before issuing its 28-page decision this summer. Summarized, it said Humphreys should have been given a more precise warning about the consequences of not testing before being terminated.

Humphreys has worked for the district for 21 years, most recently as a third grade teacher at Frasier Elementary School. She’s said she wants to return to work.

Humphreys’ attorney’s response to the district’s appeal to the CPC decision quotes California Supreme Court and Court of Appeal cases holding that administrative agency findings are afforded a “strong presumption of correctness.”

“The CPC did not abuse its statutory discretion in both considering and ultimately denying the district’s charges as not supported by the collective evidence applied to the law,” Vanderpool stated. “The district failed to carry its burden to prove that Humphreys’ conduct manifested persistent refusal to obey the school laws of the state or by the governing board of the school district, nor did it prove a temperamental defect rendering her clearly not fit or suitable for teaching.”

The CPC report stated, “It is quite evident that the district rushed to dismiss respondent.”

The case came to public attention at the Fallbrook Union Elementary School District meeting on Aug. 15 when union representative Ken Ostroske asked why Humphreys was not being reinstated during the public comments period on the agenda.

 

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