According to these three professors, their ordeal began in 2014, when Gonzalez challenged Chair Sandoval by requesting that his seniority status be officially recognized by the union, AFT Guild Local 1931. From that moment, Sandoval’s abuse intensified in the form of retaliatory changes in his class assignments and racial slurs (including Chilango prieto, mosca prieta, and Elvis Mexicano prieto. Prieto means “dark-skinned”. Chilango is an ethnic slur for people from Mexico City. Mosca means “housefly”). As a result, Gonzalez filed a complaint with the District’s Human Resources department.
Becerra’s and Jimenez’s ordeal began when they were called by Human Resources to provide eye-witness testimony in Gonzalez’s case against Sandoval about instances of verbal abuse (racial slurs) by Sandoval against Gonzalez. When Sandoval found out that Becerra and Jimenez had testified for Gonzalez, testimony that was supposed to be confidential as a protected activity, she angrily confronted them and promised that their long-held teaching schedules would be changed and that she would make their lives miserable, a promise she fulfilled.
After three years of litigation in federal court, this has become a case of David (Becerra and Jimenez) versus Goliath (the District)! Two part-time professors with limited funds, represented by an idealistic but not-so-experienced contingency attorney, faced mano-a-mano against an expert team of lawyers with ample resources, the law firm of Artiano Shinoff, that specializes in defending educational institutions in labor disputes, known in legal circles as “the devil” for their tactics.
Sadly, in this version of David (Becerra and Jimenez) against Goliath (the District), this time, Goliath slew David. It was Judge Cynthia Bashant who hurled the stone that killed their case on May 20, 2020, when she ruled in favor of a brief filed by the District’s “dream team” on December 23, 2019, which does not deny or challenge any of the allegations made by Becerra and Jimenez but instead invokes the protection of the Eleventh Amendment of the U.S. Constitution and claims that the District and defendants Sandoval and Gerald are protected under it because it provides a state agency immunity in federal court. Therefore, they argued, “this Court lacks subject matter jurisdiction over the totality of this action.” Judge Bashant agreed and thus dismissed their case without prejudice. It is quite strange that in the three years that the plaintiffs’ case was in litigation, neither the venerable judge Bashant nor the District’s “dream team” noticed that the federal court had “no jurisdiction” over Becerra’s and Jimenez’s case, thus wasting three years of the court’s time and budget, not to mention the plaintiff’s financial resources and emotional anguish, on a case that, according to the judge’s decision, should have been thrown out on day one.
The judge’s ruling means that state employees, including contingent faculty, have no recourse in federal court when all efforts to report abuse fail. The District’s “dream team” cited Government Code Section 820.2, which provides immunity from liability for supervisors’ discretionary acts within the scope of their employment, “whether or not such discretion is abused.” While staff and tenure-track faculty are protected by their full-time contracts and tenure provisions, that is not true for contingent faculty, who, despite seniority lists and union “protection”, remain vulnerable to the whims of chairs and deans; according to the District’s legal argument, they can legally violate their rights. If the law is on the employers’ side, contingent faculty and other state employees beware of filing grievances. As in cases of domestic violence, already too many abused employees fail to report abuse for well-founded fears of increasing violence and retaliation.
But hope refuses to die out completely. Still standing and ready to do battle is former City College Spanish Adjunct Professor Salvador Gonzalez, who no longer teaches for the District. His case against the District, which alleges discrimination and retaliation under FEHA, was filed in State Court in April 2020 (Case No. 37-2020-000 16392-Cu-OE-CTL) and is tabled for a Civil Case Management Conference on November 20, 2020. We can expect to hear testimony on Gonzalez’s behalf by David Becerra and Antonio Jimenez, which we will report in a later issue as the case evolves.
When we, as a nation, seem to be losing our moral compass, when discrimination continues to raise its ugly head, emboldened by the implicit and thinly veiled approval of our current Commander in Chief, shouldn’t we, as citizens of the republic that our founding fathers envisioned, stand against oppression and injustice? Should the SDCCD whitewash, justify, and excuse its employees’ misconduct through legalese instead of calling out their actions as deplorable and excising them before gangrene sets in? The district seems unable to see the difference between being legally right and what is morally correct.
A high moral ground would require the District and the Board of Trustees to see beyond the legalese and instead acknowledge that many complaints by multiple professors against the same two individuals (Sandoval and Gerald) warrant serious investigation. Where there is smoke there usually is fire. By turning a blind eye to the abuse, the District and the Board of Trustees, like our Commander in Chief who condones oppressive racist ideologies, are implicitly endorsing Sandoval’s racism, abuse, and retaliation, as well as Gerald’s collusion in her wrongdoing. The District and the Board of Trustees are granting them and all their managerial employees immunity to abuse their subordinates with impunity.
