HomeMy WebLinkAbout05 CLAIM #03-22 08-04-03AGENDA REPORT
Agenda Item
Reviewed:
City Manager
Finance Director
MEETING DATE:
TO:
FROM:
SUBJECT:
AUGUST 4, 2OO3
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
LOIS JEFFREY, CITY ATTORNEY
CLAIM OF CHERIE ANDERSON; CLAIM NO. 03-22
SUMMARY:
The City Attorney and the City's Claims Administrator are recommending denial of the
claim.
RECOMMENDATION:
After investigation and review by this office and by the City's Claims Administrator, it is
recommended that the City Council deny the claim and direct the City Clerk to send
notice thereof to the claimant and the claimant's attorneys.
BACKGROUND:
Ms. Anderson was a teacher at Hillview Continuation High School, but resigned. She
alleges a constructive discharge. She has wrongfully filed this claim against the City of
Tustin who has no connection to the matter. For your information, the City's Claims
Administrator sent Ms. Anderson a letter to that effect. The letter points out that in
considering her future course of action, ,she should take into consideration the provisions
of CCP §1038 that allow the City, in the event any litigation is filed, to seek monetary
remedies for defending a baseless claim.
FISCAL IMPACT:
None.
ATTACHMENTS:
Claim
7/21/03 letter from Alex Barrios
cc: William A. Huston, City Manager
172080.1
CITY OF TUSTIN
CLAIM AGAINST THE CITY OF TUSTIN
(For Damages to Persons or Personal Property)
The law provides generally that a claim must be filed with the City Clerk of the City of Tustin within six (6)
months after the. incident or event occurred. Be sure your claim is against the City of Tustin, not another
public entity. Where space is insufficient, please use additional paper and identify information by
paragraph number. Completed claims must be mailed or delivered to.the City Clerk, City of Tustin, 300
Centennial Way, Tustin, California 92780.
WHEN COMPLETING THIS FORM, PLEASE TYPE OR USE BLACK INK
To the Honorable Mayor and City Council, City of Tustin, California:
The undersigned respectfully submits the following claim and information relative to damage to person
and/or property:
1. a. Name of Claimant: ~/-/-/~-~'-/Z/~'.,"~'/'/xS~*~<-~'o.,r-.,)_
b. Address of Claimant: ~/¢'~'/,/...
c. City/ZipCode: .
d.. Telephone Number: /'¢¢.-¢,,/ :~
e. Date of Birth: ,-~/'/ ' ·
f. Social Security Number:
g. Driver License Number:
2. Name, telephone, and post office address to Which claimant desires notices to be sent (if other than
above): .g',¢-,~
o
This claim is submitted against:
a. ,~ The City of Tustin onlY.
b. __ The following employee(s) of the City of Tustin only:
The City of Tustin and the following employee(s) of the City of Tustin only:
Occurrence or' event from which the claim arises:
a. Date: /¢/-'d ~' s-7' ¢- ~., -- ./-"~,~
b. Time:
c. Place (Exact and Specific Location):..
d. How and under what circumstances did damage or injury occur? Specify the particular
occurrence, event, act or omission you claim caused the injury or damage (use additional
What particular action by the city, or its employees, caused the alleged damage or injury?
Give a description of the injury, property damage or loss so far known at the time of this claim, If
there were no injuries, state "no injuries".
Give the name(s) of the City employee(s) causing the damage or injury:
7. Name and address of any other person injured:
8. Name and address ofthe owner of ar~y damaged property:
10.
Damages Claimed:
a.
Amount
claimed
as of this date:
b. Estimated amount of future costs: '
c. Total amount claimed: ~- y, ;z
d. Attach basis for computation of amounts claimed (include copies of all bills, invoices,
estimates, etc:) - s~e'~¢~ .,¢,,-'-T-/~:/cz~
Names and addresses of all witnesses, hospitals, doctors, etc. ·
WARNING: IT IS A CRIMINAL OFFENSE TO FILE A FALSE dLAIM
(Penal Code Section 72; Insurance Code Section 556.0)
I have read the matters and statements made in the above claim and I know the same to be true of my .
own knowledge, except as to those matters stated to be upon information or belief and as to such matters I
believe the same to be true. certify under penalty of perjury that the foregoing is true and correct.
claimant's Signature:
Executed this ~,-r~'~.,~,,.~ /'~¢ day of J~-~ .~- ,20 ~ ~ .
Date filed this /;2 day of
2:CLAtM (1/00)
July 16, 2003
To: Stephanie Paggi, Deputy Superintendent Educational Services
Compensation
I have been working in education for over thirty years, in middle schools, high schools,
colleges, and vocational education. I've had numerous adininistrators, some great and others,
'not so gr at. In all of my experience I have never been so lied to, cheated, threatened, and
treated with disrespect as by Mr. Andrew Hernandez at Hillview Continuation High School.
He will say anything to get his way and then change his story later. He has very little respect
or concern for the safety of the teachers or students.
I interviewed for the position at Hillview in early summer 2002. The week after the interview
Mr. Hernandez called and said they were trying to find classes to hire me. I didn't hear from
him again until the week before school started, the end of August.
I talked to Mr. Hernandez on Sunday night, August 25. He asked me to work at Hillview the
following day, August 26, the first day of school. I told him several times I could not be there
the first day. I had just returned from working in Maine and not had a day offin over five
weeks.
He begged me to go to school the first day. I finally gave in and started teaching my classes
the next day,, the first day of the semester, August 26. Patricia Farmer, a substitute with the
district, was in my room to cover legally until I was cleared with the district.
According to Mr. Hernandez in a recent letter I "... had no assignment on campus and was
free to come and go as needed. Ms. Anderson used this time to follow up on personal
matters ..... ". This is a lie. See the attached note from Patricia Farmer, the substitute in my
classroom for the truth. IfI had known I could come and go I would have waited until I had
been cleared by the d/strict. I spent most of the summer working for the government running
a Transportation Security Administration center. I didn't even have time to unpack before
working at Hillview. I thought I was helping, not being taken advantage of and lied to.
I checked in with Mr. Hernandez each morning of the first week. Each day he said he would
go to personnel that day. I asked him at least three times during the first two weeks of school
if I would get paid for the first two weeks. He always said "Yes....don't worry....trust me."
Each time he said he would submit additional hours to cover my work when I was cleared
with the district. He would also say, "I'm not going to blow sunshine up ..... "
I planned and taught the classes each day, leaving school between 4:30 to 5 each night, using
the time for lesson plans and grading. Patficia Fanuer helped with attendance and covered ifI
had a meeting with Mr. Hernandez.
Tuesday, September 3, the second week of school, he said he talked to personnel and they
said I needed new finger prints. I told him I had them done at the Orange County Board of
Education in February. I had to have them redone, since the original prints were to substitute,
not for a contract position. I went directly to the Sheriff's Department the next morning and
waited for a cancellation. The only time in the first two weeks I wasn't in my classroom was
to have finger prints and one morning when he sent me over to Valley High School to pick up
information for the career class.
Throughout the semester I asked Mr. Hernandez when I would get paid for the first two
weeks. He always said he was working on it or had to talk to personnel to confirm my first
day. I told him on two occasions it was September 9. In one conversation he said he would
put in hours "... you can use to contemplate your iguana."
I talked to Mr. Hernandez again about getting paid in February. He said he could not pay me
but he could give me extra time. This never happened.
I have never been paid for the first two weeks of school.
Classroom Request for Safety Check for Toxic Mold
I would also like to stress my concern with my classroom. I understand from a district
employee that the classrooms, D1, D2, and D3, were "condemned" several years ago due to
safety concerns. Even Mr. Hernandez said they had been condemned due to earthquake
problems.
My concern was the possibility of the unhealthy consequences of toxic black mold. The room
had a musty mildew odor, which the students complained about on a daily basis. Besides the
musty odor it had poor ventilation; had been closed for months at a time; and had large water
spots on the ceiling, alt which contribute to the devolvement of toxic black mold.
I found out later from another teacher that the last principal knew of the mold problem. Since
she was allergic to mold Mr. Marzilli had the tiles replaced and the mold removed on a
regular basis. (See attached e-mail from Judy Watts.)
I asked Mr. Hernandez to have it checked for the odor and mold. I told him of my health
concerns several times. I even joked that "we", the teachers teaching in the portables,
deserved extra time off due to illness from the room. I put the request to have the room
checked in writing in October 2002.
The room was never checked. When I brought up my concern with the portables, Mr.
Hernandez's response was, "If I lose those classrooms I'll pink slip three teachers." I took
this as a personal threat, which I am sure was how it was intended. He said this at least three
different times which was witnessed by other teachers.
Early in the semester I called my doctor and told her "something was wrong". I had difficulty
concentrating, whting, and even spelling. I was extremely concerned. I didn't know this was
a connaaon symptom of toxic mold. (See attached article "Erin Brockovich Crusades Against
Mold".)
As of February 26, 2003 the room had never been checked. In March he reported there
wasn't any "obvious sign of mold", which is not the way to check for toxic mold. There are
over 200 students in the classrooms that may be exposed to this extremely unhealthy and
dangerous condition.
Retaliation
The last meeting with Mr. Hemandez took place on Thursday, February 13, 2003. Since Mr.
Hernandez had just visited my classroom for the first time the day before, I assumed the
meeting was to discuss my evaluation. I started teaching 30 years ago. I've had many
evaluations and have always had excellent rating so I wasn't worried.
We didn't discuss what was on the evaluation. I didn't see it until I was on my way home.
He just put his hand on it and said, "It can be changed." The evaluation is not signed by Mr.
Hernandez or me.
Mr. Hemandez said he had talked to the Assistant Superintendent of Personnel. He said she
had come up with a "plan". I was to resign by February 21. IfI didn't resign he said in
March I would receive a letter from the district saying I would be "removed". IfI did not mm
in a letter of resignation, Mr. Hernandez stressed that when the district was contacted by
future employers they would be told I was "removed". He stressed how bad this would look
when trying to attain future employment.
As I left he gave me the evaluation and said it could be changed. When I left I was stunned. I
have always had excellent evaluations. In a recent letter he said he explained this would go
with other observations and visits. There were no other observations or visits. He was rarely
there; he was also acting as the principal at the adult school and independent study school.
I resigned because I didn't have a choice. I didn't want to-~lestroy my 30 year teaching career.
If I resigned it was made clear the evaluation would be changed and I would be removed from
the "not mcon~mended for rehire' list.
I know this was a constructive discharge in retaliation for requesting my earned and promised
income and for requesting the room be checked for toxic mold, a major safety issue. I also
know my lack of classroom skills or not getting along was pretext for the discharge. I was
one of the few teachers not complaining about the administration. You can confimq this with
other teachers and students at Hillveiw.
I am owed the first two weeks of salary and the balance of my contract. If this is not settled
soon I will be seeking legal consul. Someone has to look after the education, health, and
welfare of the students and teachers.
Cc: Peter C. Gorman, Ed.D., Superintendent
Pamela Stoker, City Clerk
To Whom it May Concern:
I had the privilege of working wtih Cheri Anderson at
Hillview High. School in Tustin during the time period of
August 26-September 7, 2002. We taught full days
together in that time period. Ms. Anderson was not only
present but also a mentor for me as she demonstrated
outstanding teaching abilities and classroom management
skills. If there are any questions regarding these two weeks
of her service, feel free to contact me at 714 505 4413.
Sincerely,
Patricia Adams Farmer
Teacher, Sycamore High School
Cherie--
I can attest to the fact that there was mold in D3 because I saw it there.
Then they changed the ceiling tiles so the mold was gone~ The guys came in
at least three separate times and changed the ceiling tiles because the roof
kept leaking and the files kept getting moldy. That was all when A1
Marzilli was here, though. I told Al I was allergic to mold and he stayed
on the M&O guys to keep the tiles clean.
I guess I'm a little more cynical about Andy (and all men for that matter)
after going through what I've gone through with Gary. I'm not surprised
that he would lie; he's trying to protect his job~
Keep me informed.
Judy
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Erin Brockovich Crusades Against Mold
State lawmakers told of potential health dangers
Anastasia Hendrix / SF Chronicle 8mar01
Sacramento -- In her hallmark miniskirt and stilettos, Erin
Brockovich came to the Capitol yesterday -- not to talk about
the crusade against PG&E that made her famous, but about her
personal battle against the toxic molds ravaging her Southern '
California home.
The activist-turned-celebrity was invited to address the Senate
committee on Health and Human Services by Sen. Deborah
Ortiz (D-Sacramento), who heads the panel. Ortiz recently
introduced a bill that would institute the first statewide policy
regulating molds in the country.
"We need to start with the establishment ora standard or
exposure limit for mold, and we don't have that standard in law
now," said Ortiz, who was unable to attend yesterday's hearing
because of a death in her family. "We have established
measures for lead and asbestos exposure, and I think this
(mold) is akin to those."
Brockovich told the panel that such legislation might have
prevented her from buying the sprawling Agoura Hills home
she and her family moved into in 1997. Two years later, she
Erin Brockovich
testified before the
state Senate
committee on Health
and Human Services
about the problems
she and her family
received from mold
in their Agoura Hills
home.
Associated Press photo by
Rich Pedroncelli
was constantly fatigued and suffered from a range of respiratory problems and sinus
infections. Her 9-year-old daughter had severe coughing spells and watery eyes.
After stubbing her toe on a raised floorboard, she began asking the kinds of questions that
led to the landmark lawsuit against PG&E and the major Hollywood movie that bears her
name.
"I began to put two and two together," she said. "I have floors coming up. Why? The
house smelled musty. Why? Could there be a water problem? And then I started thinking
-- water, mold, what's going on? I'm sick."
Tests confirmed her suspicions, revealing construction flaws and high levels of several
molds. Brockovich said blood tests revealed a severe reaction to two of the molds that
showed up in the test results.
Repairs to the 5,200-square-foot home have cost her more than $600,000, and there is
much work yet to be done. Though she insisted that toxic mold is not her new cause, she
admitted there is a connection.
"I think it's such an irony -- the very reason I did Hinckley (Calif.) is (because) people
were sick, people I believed in, people who had been lied to, people who had lost their
health and their home,., and the same thing is happening to me," Brockovich said, in an
uncharacteristically soft voice.
More than 150 people attended yesterday's hearing, although only two of the 11
committee members were present.
Brockovich was one of 13 people to speak -- and her high-profile account is just one of
the dozens of nightmares Ortiz said she has learned about while preparing the Toxic
Mold Protection Act over the past year.
Tulare County Superior Court Judge Elisabeth Krant described how she experienced
episodes of vertigo, difficulty concentrating and hair loss before a huge colony of toxic
mold was found in her courtroom -- the largest reported finding in the state so far. More
than 250 other courthouse employees have been affected or are on disability leave
because of mold-related illnesses.
While doctors may not all agree on the health effects and state officials may tangle over
what action to take, Krant said, "I assure you, all the victims know that they have been
made sick by this stuff. Something needs to be done."
Her voice choked with emotion as she explained how her concerns were initially
dismissed and how rmnors circulated about her going through menopause and being "a
hysterical female."
WARD
RORTk ~,M£R
July 21, 2003
Cherie And. grson
Our Principal
D/Incident
Claimant
Dear Ms. Anderson:
: City of Tustin
: 2-28-03
: Cherie Anderson
As Claims Administrators for the City of Tustin, please be advised you have unjustly presented a claim to
said City in connection with an incident which has no involvement whatsoever with the City of Tustin.
Based on the content of your claim, your dispute appears to be entirely with the Tustin Unified School
District, which is a separate and distinct public entity from the City of Tustin.
We have instructed the City of Tustin to reject your claim. In considering your future eom'se of action,
we should like to remind you of the provisions of Code of Civil Procedure Section 1038. In the course of
any litigation filed against the City the City will seek the monetary remedies afforded by that Section.
It is not the intention of this letter to deter the filing of any lawsuit against the City where there is a
justifiable controversy under the facts and the law. We do feel that in the instant case, there is absolutely
no basis for the City of Tustin to be included in your claim, or any litigation that might result.
Very truly yours,
WARD NORTH AMERICA, INC.
Alex Barrios
c: Lois Jeffrey, City Attorney
.....q Woodruff, Spradlin & Stuart
Ronald Nault, Financ~ Director
City of Tustin
WARD NORTH AMERICA, INC.
P.O. BOX 2422, TUSTIN, CA 92781-2422, TELEPHONE: (714) 544~0980 · FAX: (714)544-1979
Writer's Tel. Ext..138 Email: albarrios@ward~aims, com