Strike Two against SD City College: Justice Department Issues “Right to Sue Letter” after EEOC Finds “Reasonable Cause” in Civil Rights Violations Complaint against Languages Department Chair Rosalinda Sandoval and Division Dean Trudy Gerald

by Leonardo Rodriguez

January 20, 2020

            In a shocking development on this case, first reported by SDAFA on January 26, 2018 (https://www.sdafa.org/city-language-adjuncts/), on January 13, 2020, the Department of Justice issued a “right to sue” letter to Adjunct Spanish Professor Salvador Gonzalez, one of four adjunct professors in the Languages Department who, over the last five years, have filed formal complaints of discrimination, abuse of power, and management’s failure to prevent abuse with the SD Community College District’s Human Resources Department, the Board of Trustees, and the Equal Employment Opportunity Commission. In a related case, adjuncts David Becerra and Antonio Jimenez filed a lawsuit in federal court in December 2017, which is still pending.  While these cases differ on some points, both complain of discrimination based on race, age, and socioeconomic class, intimidation, intentional infliction of emotional distress (IIED) and abuse of power by Chair Sandoval. All of them charge Sandoval and her supervisor, Division Dean Trudy Gerald, of colluding to “discipline” them through various forms of abuse and retaliatory class scheduling, or dismissal in Gonzalez’s case, for exercising their basic civil rights.  

According to the record, Gonzalez’s ordeal began in the Fall 2010 semester and reached its peak in the Spring 2014 semester when he defied a direct order by Chair Sandoval not to file for Priority of Assignment. POA, hard-won by the local AFT 1931 and agreed upon by the District, establishes seniority rights that offer a small measure of job security to adjunct faculty whose precarious employment conditions are the subject of much debate in academic circles. Upon discovering that Gonzalez had defied her order, Sandoval endeavored to make Gonzalez’s life miserable until, in the Spring 2015 semester, he lost his teaching position at City College despite excellent performance evaluations by both students and peers alike.  After exhausting all other remedies, Gonzalez filed a complaint with the EEOC (Case No. 488-2015-00193) in February 2015, seeking to redress long-term abuse by Sandoval, including racial harassment, racial discrimination, verbal abuse, quid pro quo, and retaliatory class assignment and scheduling.

Throughout the investigations conducted by the District and EEOC over the last five years, Gonzalez has substantiated his complaints of racial harassment and retaliation with sworn statements by eye-witnesses, which unfortunately resulted in similar “disciplinary” actions by Sandoval and Gerald against the eyewitnesses, adjunct faculty Becerra and Jimenez. In a sworn statement before Human Resources (HR), Becerra testified witnessing various racial microaggressions by Sandoval against Gonzalez. Becerra reported that Sandoval “joked” about Gonzalez’s appearance, calling him “prieto” and Chilango, derogatory epithets, the first meaning “darkie” (referring to his dark complexion), and the second, an allusion to his origins in Mexico City, which carries deeply negative connotations among Mexicans. Gonzalez also produced a sworn statement by fellow adjunct Antonio Jimenez, then in good standing with Sandoval, stating that she had attempted to coerce him, under threat of adversely changing his future class assignments, to lie about the classes in his POA class list in order to justify denying a class to Gonzalez because, supposedly, Jimenez had priority in Spanish 101, customarily assigned to Gonzalez, which was false. Jimenez had priority in Spanish 102. Also, Gonzalez was denied a class assignment for having the least seniority, which was also false. Adjunct Guadalupe Adame had less seniority than Gonzalez. When Gonzalez complained, both Sandoval and AFT President Jim Mahler responded that Jimenez had priority in Spanish 101 and that Adame had more seniority than Gonzalez, which in both cases was false. Similarly, according to Becerra, when Sandoval found out that he had testified about her racial micro-aggressions against Gonzalez, testimony that was supposed to be confidential as a protected activity, she angrily confronted him and promised that from that day forward his teaching privileges would be revoked, and that she would make his life miserable. Sandoval fulfilled her threats against both adjuncts who, after exhausting all other avenues, are currently seeking protection and justice through a lawsuit filed December 12, 2017 in federal court (Case No. 17-CV-2489 BAS (MDD)).

Sandoval’s wrath against those who displeased her was swift and ruthless. Starting the very next semester in Spring 2016, Becerra’s and Jimenez’s schedules were changed in every possible way. Instead of the sixteen-week evening classes twice weekly Becerra had taught for at least the previous ten years, he was now offered early morning classes, eight-week classes, four-days-a-week classes, split classes (i.e., Spanish 101 and 201 simultaneously), and every other uncomfortable schedule Gerald and Sandoval could muster, while adjuncts with less seniority were assigned the schedule Becerra previously had. Similarly, Jimenez, who had taught a schedule that allowed him to commute from Tijuana, where he resides, now was offered early morning classes that made his commute nearly impossible.

After an extensive investigation, the EEOC concluded in July 2019 that there was “reasonable cause to believe” that the District violated Title VII by subjecting Gonzalez to harassment based on race, color, and national origin, as well as retaliation. This finding was in direct contradiction to previous findings by the District’s HR investigator, Johanna Palkowitz, who reported finding nothing untoward in Sandoval’s and Gerald’s actions. The EEOC determination also challenged the ruling by the District’s Board of Trustees and its President, Maria Nieto Senour, who voted to deny Gonzalez’s appeal of Palkowitz’s report. In a letter dated April 17, 2017, District Chancellor Constance Carroll informed Gonzalez that the Board had voted to deny his appeal and to uphold the HR determination as final. In August 2019, the District’s attorneys and EEOC investigators held a conciliatory meeting to settle on appropriate compensation for the civil rights violations against Gonzalez. However, Gonzalez, who earned approximately $28,000 annually teaching at City College, declined the District’s $30,000 dollars offer as insufficient to compensate for five years of lost wages. The possibility of reinstating Gonzalez as a Spanish instructor was not raised by the District’s attorneys.

For Gonzalez, the EEOC determination and the “right to sue letter” issued by the Department of Justice mean that his case is headed for litigation in court.  As for Becerra’s and Jimenez’s lawsuit, theirs is a case of David (Becerra and Jimenez) versus Goliath (the District)! Two part-time professors with limited funds, represented by an attorney working on contingency, are mano-a-mano against an expert team of lawyers with ample resources, the law firm of Artiano Shinoff, which specializes in defending educational institutions in labor disputes. According to those in legal circles, they are known as “the devil” for their tactics. Still, Becerra and Jimenez continue battling Goliath in U. S. District Court. In May, 2019, Judge Cynthia Bashant found “reasonable cause” in Becerra and Jimenez’s claims of retaliation, failure to prevent harassment and discrimination, and intentional infliction of emotional distress (IIED) by Chair Sandoval and Dean Gerald. It should be noted that Sandoval stepped down as Languages Department Chair at the end of Spring 2019 semester, and Division Dean Trudy Gerald’s employment was abruptly terminated when she was placed on administrative leave, for reasons that remain a closely guarded secret, early in the Spring 2019 semester as reported by City College Times on February 12, 2019.

Currently, Becerra and Jimenez are awaiting a ruling by Judge Bashant on yet another legal maneuver by the District’s legal “dream team.” According to a brief filed December 23, 2019, which does not deny any of the allegations made by Becerra and Jimenez, the District’s attorneys claim that the District and defendants Sandoval and Gerald are protected under the Eleventh Amendment to the U.S. Constitution, which they claim provides a state agency immunity in federal court and that “this Court lacks subject matter jurisdiction over the totality of this action [because the] plaintiffs’ claims against this . . . Community College are barred by the Eleventh Amendment [and the] claims against Defendants [Sandoval and Gerald], sued in their official capacity, are similarly barred.”

That would mean that state employees, including adjunct faculty, have no recourse in federal court when all efforts to report abuse with the administration and with the appropriate state agencies fail. The District’s attorneys cite 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 career-track faculty are protected by their full-time status and tenure provisions, that is not true for adjuncts, who despite POA lists and AFT “protection” remain vulnerable to the whims of chairs and deans; according to the District’s legal argument, they can legally violate their rights. The “protection” provided to adjuncts by the AFT is clearly a mirage, as evidenced by the experiences of adjuncts Gonzalez, Becerra, Jimenez, and others who, as in cases of domestic violence, fail to report abuse for well-founded fears of increasing violence.

Adjuncts Gonzalez, Becerra, and Jimenez are Mexican immigrants who came to the U.S. in search of the American Dream. Gonzalez and Becerra are both from economically disadvantaged families and are first-generation-college graduates whose achievements should be recognized as models of immigrant success. Becerra is a graduate of City College who went from student to professor at his alma mater.

• Is it right for the District to support its legal “dream team” as they whitewash, justify, and excuse its employees’ misconduct through legalese instead of acknowledging that their actions are deplorable and should be excised before gangrene sets in?
• Shouldn’t the District and the Board applaud and defend these adjuncts instead of turning a blind eye and granting their supervisors immunity to abuse them with impunity?
• Are they unable to see the difference between being legally right and morally correct?
• Let us know what you know about such happenings and what you think about it!