Calif. Judicial Panel Sides with Fired College Official in Lawsuit

Grossmont-Cuyamaca Community College District might be held liable for improperly firing its interim associate vice chancellor while he was on medical leave.

The California Court of Appeal has decided that the district failed to follow the state Education Code when it gave David Agosto fewer than three months notice of its decision not to renew his contract. The law entitled him to at least six months notice.

The suit seeks reinstatement with back pay, as well as damages for harm to his reputation and discrimination based on disability, according to his attorney, Martha Torgow of Northridge.

However, a lawyer for the district, Jack Sleeth Jr. of San Diego, said Agosto may have to repay unearned salary.

“I think he owes us money. We paid more than he was entitled to so we would avoid violating the disability statute,” Sleeth said.

The three-judge panel sent the case back to San Diego County Superior Court for further proceedings.

In addition to associate vice chancellor, Agosto had served as Cuyamaca College’s interim president in 2001 and as its vice president. He’d also served as the interim president of San Diego City College in 2000.

Agosto is currently president of the governing board of the Southwestern Community College District in Chula Vista but isn’t employed at a community college, Torgow said.

He was on medical leave for kidney disease from September 2005 until his notice of dismissal arrived in March 2006, according to the decision.

The district said “he would not be offered another administrative position, but could return to a faculty position,” the decision said.

In his appellate brief, Agosto accused the district of attempting “to obscure the complete facts.” He also said the district misleadingly contended that he was under only a one-year rather than two-year contract because two-year contracts carry more legal protections, including a longer notice period before termination.

Because the district allegedly waited too long to fire him, Agosto argued his contract automatically renewed on March 27, 2007, and should remain in effect until 2009.

He also said the district “feigned efforts to accommodate his medical needs, while in reality setting up barriers and obstacles to his returning to work. Ultimately, he was offered a work schedule that involved 11-hour days, with no breaks.”

The Court of Appeal overturned a Superior Court judge who had concluded Agosto’s original two-year contract was unenforceable because no one could find a copy of the document signed by the district’s chancellor when he was hired in 1995.

Since he’d been employed in various one-year positions since then, the district argued he was effectively working under a one-year contract.

The appellate panel disagreed. Justice James McIntyre wrote on behalf of court, “The evidence Agosto presented, and reasonable inferences, show that the district prepared the contract, presented it to him for signature and that he signed and returned the contract, but that the district placed the contract in his personnel folder unsigned.

“The district’s conduct, including hiring Agosto and generating documents that referenced his contract, strongly suggested it had signed the contract and Agosto reasonably relied on this conduct, unaware that the district never signed the contract.”

Because the unsigned contract wasn’t Agosto’s fault, the court held that he is entitled to the protections guaranteed by the original two-year contract, despite changing jobs several times.

Sleeth, the district’s lawyer, said the lesson that the case teaches community colleges is “keep good records. Part of the problem is we didn’t know what contract he was under.”

Sleeth said the minutes of the board concerning Agosto’s administrative appointment “didn’t disclose the length of the contract,” which could be up to four years under California law.

The appeal raised another issue that the panel didn’t resolve — whether the board had properly made public its closed-door decision to terminate him, according to Torgow, his lawyer.

She said the lower court must now decide whether the district will be allowed to claim at trial that its termination was procedurally valid.

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