McCullough v. Cabrillo Com. College Dist.







Filed 6/23/11 McCullough v. Cabrillo Com. College Dist. CA6




NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SEAN McCULLOUGH, Plaintiff and Appellant, v. CABRILLO COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.

H035773 (Santa Cruz County Super. Ct. No. CV165437)

Appellant Sean McCullough seeks reversal of the trial court’s order denying his petition for a writ of administrative mandate concerning Cabrillo Community College District’s (District) decision to terminate his employment. On appeal, McCullough contends that the trial court erred (1) because it did not direct the District to permit him to participate in the choice of the evaluating psychiatrist, and (2) because it did not address his contention that the District violated its collective bargaining agreement (CBA) with his union by allowing someone other than the district superintendent to select the evaluating psychiatrist. McCullough asserts that these breaches of the CBA nullified the District’s decision to terminate him. He also contends the trial court erred when it concluded that he failed to engage in the interactive process to accommodate his disability. We find no error and will affirm the judgment.

Facts[1] and Procedural History

McCullough was hired as the theater manager for the District in 1988 or 1989. His duties required him to work with the theater, music, and dance departments. He was a member of the Cabrillo Classified Employee’s Union (CCEU) and subject to a CBA between the District and CCEU. McCullough’s supervisor was Dan Martinez, the Dean of Visual, Applied, and Performing Arts.

I. Paranoia and Consequent Disciplinary Problems in 2005 and 2006

McCullough began to have paranoid episodes as early as the fall of 2004. By 2005, these episodes created difficulty in his interactions with coworkers, students, and faculty at the District. Skip Epperson, the program chair for the theater arts department, testified that in March 2005 McCullough came into the theater and yelled at the people conducting auditions for bringing food into the theater. When Epperson responded, “Yeah, right,” McCullough “blew up” and said they were being unprofessional and had belittled him. Epperson described the situation as “downright scary.” When McCullough confronted Epperson about this again a few weeks later, McCullough was “red-faced,” shouting and screaming. Epperson felt physically trapped and decided he wanted no further interactions with McCullough.
Dean Martinez met with McCullough informally in May 2005 and “identified several job-related concerns that had come to [his] attention” during the spring semester of 2005, including problems with the timeliness of McCullough’s work and a lack of communication. Martinez noted that the assistant theater manager had asked to move from the office she shared with McCullough because of “a marked increase in the level of chaos, noise, and interruptions.” McCullough told Martinez he was having some personal problems that were affecting his work and agreed to take specific steps to improve communication and the timeliness of his work. In particular, he complained that some people he had hired to work on his home were harassing him and making his life miserable. Martinez suggested McCullough get some medical help for his emotional problems, but McCullough said he was not ready to do that.
On June 5, 2005, McCullough broke his right leg hiking and was off work until July 13, 2005. McCullough claimed that while he was visiting the campus on June 21, 2005, Epperson yelled at him and called him “ ‘untrustworthy’ ” in front of other staff. Epperson recalled the incident and testified that he was up on a lift and simply told McCullough that he could not talk to him then.
Michelle Rivard, the music department chair, also noticed changes in McCullough’s interactions with people and his job performance. In 2005, McCullough began saying there was a conspiracy against him. In August 2005, in front of other faculty, Rivard asked McCullough about repairs to the theater lights. McCullough became “extremely agitated,” yelled at Rivard, said Rivard did not appreciate what he does, and accused her of embarrassing him publicly. Rivard felt threatened. In September 2005, at a department meeting, Rivard complimented McCullough on his efforts to get their website back up and running. After the meeting, McCullough yelled at Rivard for embarrassing him and treating him disrespectfully in front of their colleagues by complaining about his work on the website. Rivard described two other similar incidents, and said that by mid-2006 she would no longer talk to McCullough. After the September 2005 incident, Martinez placed a letter in McCullough’s personnel file citing a lack of anger management when resolving issues. McCullough prepared a written response in which he admitted that he acted inappropriately, but also complained of “unresolved incidents” in which he had been “verbally abused, publicly debased,” and yelled at by Rivard and Epperson.
In October 2005, the assistant theater manager went on a medical leave of absence, which left the theater short-handed. McCullough often worked overtime and found the situation stressful. The District authorized funding for a temporary replacement and three people took on that role at different times, including Maria Crush, manager of the costume shop.
Epperson and Crush became concerned about McCullough’s health. McCullough had lost a lot of weight and was not acting “like himself.” Epperson testified that McCullough expressed “some pretty paranoid tendencies.” McCullough told Epperson that people in black cars with black windows were driving up to his house. McCullough said they were CIA or “right-wing Christians” spying on him, and that someone was tapping his computer. McCullough made similar comments to Crush, telling her that the IRS had taken money from his bank account and complaining about being followed by the FBI, CIA, and police. He also said they were tapping his phone, the college was tapping his e-mail, and there was a conspiracy against him throughout and beyond the District. Epperson asked McCullough if he needed help, and McCullough said he did not need help. Crush suggested he see a psychologist or psychiatrist, and McCullough responded, “Perhaps I should.”
Theater users complained of problems working with McCullough, including calendaring issues, double-booking facilities, problems scheduling the crews, difficulty accessing equipment, his unavailability, and his disruption of and interference with production work. Epperson became concerned about student safety and told his students not to interact with McCullough unless absolutely necessary.
In January 2006, Dean Martinez met with McCullough and delivered a written “documentation of counseling.” In the memo, Martinez noted a significant change in McCullough’s performance and stated that “[f]aculty have voiced concerns over lack of contact, coordination, planning efficiency, follow through and physical care of the theater.” Martinez set out a specific plan to improve McCullough’s performance for the spring semester 2006. In a written response, McCullough complained of five incidents in which he was yelled at or berated by Epperson or Rivard, and disputed some of the factual assertions in Martinez’s memo.
On May 19, 2006, McCullough injured his back at work. Although there were problems during the spring semester, Martinez reported in July 2006 that McCullough’s performance and communication with theater users had improved.

II. E-mail to Twin Lakes Church and Subsequent Discipline

On December 17, 2006, McCullough used his District computer and e-mail account to send an e-mail to three members of Twin Lakes Church (TLC), located next door to his workplace, to complain about “church sponsorship of stalking and harassment activities.” In the e-mail, he stated that “[f]or 22 months my family has experienced a stalking and harassment campaign, . . . concurrent with repeated false police reports, and break-ins and damage to our homes, vehicles and personal possessions causing damages in excess of thousands of dollars.” He alleged that “[o]ne of the organized groups” that was “following, harassing, . . . our family appears to be based at your church, and . . . uses your parking lots and meeting rooms for this purpose.” McCullough asked TLC to investigate his allegations, identify the culprits, “notify us, and immediately cease and desist in further sponsorship of similar activities.” He stated that “further support of this type [of] harassment” would place TLC’s assets “at risk in future litigation.” He alleged that there were “over 30 incidents” in which TLC’s facilities had been used in this way and asked TLC to identify the drivers of “40 vehicles” that used its facilities between specific times on December 1 and 2, 2006.
TLC forwarded the e-mail to the president of the District, who in turn forwarded it to Dean Martinez. On December 20, 2006, Martinez advised McCullough that the District intended to take disciplinary action.
On February 9, 2007, McCullough attended an information-gathering meeting with Martinez and the District’s counsel. McCullough was joined at the meeting by two union representatives. He admitted using his District e-mail account to send the e-mail, even though he had a personal e-mail account, and agreed that using his District e-mail account was “very inappropriate.” He said he was not at liberty to discuss the alleged TLC harassment, but he did describe an incident of “harassment” when he drove to San Jose to purchase supplies and, after tying down the load onto his truck, returned to find the load untied. He reported the incident to campus police, who refused to investigate.
At the meeting, McCullough said, “ ‘Maybe I am crazy, why hasn’t someone during the last two years offered help‌’ ” He also said medical treatment might make him vulnerable if the matter were ever litigated. Two weeks later, he told Martinez his comment was not a call for help; that he meant many had heard his complaints and no one had suggested he seek help. He then conceded that Martinez and two staff members other than Epperson and Crush had suggested he seek help.
On February 28, 2007, the District issued a letter of reprimand to McCullough, providing him with a last warning that “further unauthorized communications, confrontations or discourteous conduct by you toward anyone will result in discipline, up to and including your termination from employment.” Martinez met with McCullough that day to deliver the letter. McCullough became upset and asked how the District was going to control the harassment he was suffering at work. He repeated his allegations about the San Jose incident with his truck, people hacking into his computer, and people gathering at TLC to harass him. He also complained that a car had tried to run his bike off the road; that a woman had told him they were not going to leave him alone until he committed suicide; and that the incidents that led to his reprimand were not handled fairly. McCullough has not worked for the District since the February 28, 2007 meeting.

III. The District’s Request for a Psychiatric Evaluation

On March 8, 2007, the District, through Pegi Ard, Vice President of Business Services, notified McCullough in writing that: (1) the District had scheduled him for a two-hour psychiatric evaluation with Dr. Mark Snyder “on a date to be arranged”; (2) the evaluation would include six hours of psychological testing by Dr. James Bryant; (3) the District would pay for both examinations; and (4) he was being placed on paid administrative leave, “[e]ffective immediately.” The notice stated that the examination was “not a disciplinary action”; and that it was “investigatory,” setting forth in detail the background and noting that the purpose was to determine whether he had a physical or mental disability that precluded him from performing his duties. The notice was copied to Dean Martinez and to the Director of Human Resources.
On March 26, 2007, McCullough sent Ard an e-mail stating: “Please consider this e-mail as a full authorization to schedule any medical appointments that you, and the College, may feel will satisfactorily determine my fitness for continuing to serve the College” as theater manager.[2] At arbitration, McCullough testified that he received a phone call from an unspecified individual in “personnel” saying he had to approve Dr. Snyder or be terminated, so he decided to send the authorization. Ard testified that the District had not threatened to fire McCullough, but did say that it required a psychiatric evaluation and that failure to comply may result in discipline.
On April 2, 2007, the District sent McCullough a letter, by certified and regular mail, confirming receipt of his March 26, 2007 e-mail and stating that “based on [his] authorization,” the District had scheduled an appointment with Dr. Snyder for April 19, 2007. The letter also stated that the appointment with Dr. Bryant would be scheduled after Dr. Snyder’s examination.
On the day he was scheduled to see Dr. Snyder, McCullough notified the District that he was sick and could not make the appointment.[3] On April 26, 2007, Ard hand delivered and mailed to McCullough a letter advising him that the District had rescheduled the appointment with Dr. Snyder for May 11, 2007, and would send him a separate notice about the testing with Dr. Bryant after it was scheduled. Ard advised McCullough that if he failed to attend either examination or to cooperate with Dr. Snyder or Dr. Bryant, she would propose that he be dismissed for insubordination pursuant to a cited provision of the CBA. Ard further advised McCullough that if he did not confirm his attendance in writing by May 1, 2007, the appointment would be cancelled and she would propose his dismissal.

IV. McCullough’s Psychiatric Treatment and Disability

On the day that McCullough’s written confirmation of his attendance at Dr. Snyder’s appointment was due, he consulted psychiatrist Dr. Andrew Abarbanel. In a letter to the District dated May 1, 2007, Dr. Abarbanel opined that McCullough “had a depressive response to his physical and professional difficulties,” that he should “have a period of time off for evaluation and treatment,” and that it was “too soon for him to participate in an optimal fashion” in the appointment with Dr. Snyder. Dr. Abarbanel stated that an “additional period of four to six weeks of[f] work for a careful evaluation and psychiatric treatment seems most reasonable.”
On May 4, 2007, the District sent McCullough a letter advising him that it had received Dr. Abarbanel’s report; that it was postponing the appointments with Dr. Snyder and Dr. Bryant; and that it was placing him on sick leave effective May 1, 2007. The letter further explained the types and amounts of leave benefits available to McCullough, and told him that when Dr. Abarbanel felt he was ready to participate in the examinations with Dr. Snyder and Dr. Bryant, it would require a report to that effect, including Dr. Abarbanel’s opinion regarding his ability to return to work as theater manager.
More than nine weeks went by before the District heard anything further from McCullough. In a letter dated July 12, 2007, the District advised McCullough that it required within 10 days “written verification of the reason for his continued absence on sick leave”, and a report about his prognosis including his treating physician’s opinion on whether he can participate in the examinations with Dr. Snyder and Dr. Bryant and return to work. That 10-day period lapsed with no response from McCullough.
In a letter dated July 26, 2007, Dr. Abarbanel reported that McCullough was capable of participating in a psychiatric evaluation by a physician selected by the District. Since the letter did not address the reasons for McCullough’s continued absence or whether he was able to return to work, the District by letter dated August 2, 2007, sought clarification and reminded McCullough that under the CBA he was not authorized to return to work without a medical release. The District requested a written response by August 10, 2007.
On August 13, 2007, the District received another letter from Dr. Abarbanel dated August 6, 2007, disclosing that he had seen McCullough only twice: on May 1 (the day of the first scheduled appointment with Dr. Snyder) and July 26, 2007 (four days after the deadline for McCullough to explain his continued absence). According to Dr. Abarbanel, at the first session McCullough exhibited “a good deal of anxiety” and depression, which prevented him from working. At that time, the diagnosis was not clear: it could have been “something as mild as an Adjustment Reaction with Mixed Emotional Features” or “something as severe as a Depressive Episode unlikely to resolve within the next few months.” Although Dr. Abarbanel thought “a series of meetings possibly with the use of psychotropic drugs would be optimal” and told McCullough that he would be available, McCullough disagreed and thought that “a period of time with minimal commitments and no treatment would suffice.” When McCullough returned on July 26, 2007, he was significantly less anxious and depressed. By the end of the second session, McCullough felt ready to return to work and Dr. Abarbanel tentatively agreed, opining in his letter that the absence of ongoing counseling or medication had extended the time that McCullough was off work.

V. McCullough Obtains Legal Counsel and Objects to the Examination

Based on the letter received from Dr. Abarbanel on August 13, 2007, the District on August 20, 2007, sent McCullough written notice that it had scheduled his evaluation with Dr. Snyder for September 18, 2007 and requested that he countersign the letter by August 31, 2007, to confirm that he would attend the appointment. In a letter dated August 28, 2007, Attorney John Hannon advised that McCullough had retained him in his labor dispute with the District and that McCullough “has no objection to attending the psychiatric appointment.” Hannon also requested a copy of Appendix E to the CBA, which the District had referenced in its letters. The following day, McCullough signed the confirmation form “under protest” and requested “negotiation with my lawyer, re: change of Dr. for examination”—but provided no reasons for the “protest.”
In a letter to the District dated August 30, 2007, Hannon objected to the examination on the ground that the District did not consult with McCullough in selecting the physician, and argued that on this basis Dr. Snyder’s report “would not be valid or admissible.” Nonetheless, McCullough attended the appointment with Dr. Snyder in September 2007 and completed the psychological testing with Dr. Bryant on November 2, 2007.

VI. Psychiatric Evaluation by Dr. Snyder

On November 12, 2007, Dr. Snyder issued a 33-page report of his evaluation and the psychological testing. Dr. Snyder concluded that McCullough had suffered a psychiatric disability due to paranoid delusions, which had probably been going on for years, with a psychotic episode around December 2006. McCullough’s e-mail to TLC was “additional convincing proof” that he was “clearly paranoid.” As a result of his paranoia, McCullough was suspicious of others and hypersensitive to any kind of criticism. He would need to deny his own flaws and to enhance his self-esteem by being grandiose or exhibitionistic. These tendencies impair his capacity to interact with others in an appropriate fashion and interfere with his ability to focus and concentrate.
Dr. Snyder opined that Dr. Abarbanel’s diagnoses were inadequate because he failed to recognize McCullough’s paranoia and grandiosity. Dr. Snyder explained that it is common for persons with a propensity for paranoia to adopt a hostile or adversarial attitude toward others to create distance when threatened by intimacy. The paranoid person projects his hostility onto others and perceives them as being harassing or unfair, as McCullough did in this case. Dr. Snyder opined that it is a mistake for the employer to have continuing meetings to resolve these difficulties because they tend to bring out McCullough’s unreasonableness; to the contrary, McCullough needs to be helped to repress his irrationality and not be given opportunities to express it. Dr. Snyder noted that McCullough was able to control his paranoia in his interviews with Dr. Snyder and Dr. Bryant, which is something he needs to do at work.
Dr. Snyder further opined that McCullough could return to work with certain restrictions. First, he needs weekly psychotherapy for one month prior to returning to work. McCullough’s therapy should focus on the details of his job, avoiding interpersonal conflict, and repressing his delusions. Second, he should return to work gradually, working 20 hours per week the first two weeks, 30 hours per week the next two weeks, and then full-time, assuming all goes well. During that time, he should continue his therapy. Dr. Snyder opined that McCullough could return to work once he established a relationship with a psychiatrist and had at least four visits.

VII. Attempts to Engage in Interactive Process

On December 21, 2007, counsel for the District sent a four-page letter to Hannon referencing Dr. Snyder’s report and requesting “a meeting to participate in an interactive process with Mr. McCullough to determine possible accommodation for his disability.” The letter set forth the District’s detailed proposal for accommodating McCullough’s disability. The District proposed to allow McCullough to return to work initially as the assistant theater manager, with no cut in pay, and to continue in that position until at least the spring semester. McCullough would work during daytime hours and would have no responsibility for communicating with the public, employees, or vendors. The District proposed that he undergo psychiatric treatment for one month before returning to work, that he return to work at 20 hours per week for a minimum of two weeks, 30 hours for a minimum of two weeks, and then 40 hours per week, and that he have weekly treatment for a minimum of four months. After four weeks of full time work as the assistant theater manager, he would become the co-manager, and after four weeks in that capacity, he would be returned to his position as theater manager. At each step, he would be required to provide a report from his treating psychiatrist stating that he was being seen weekly, had complied with the treatment, was capable of moving on to the next step, and that McCullough’s health and the safety of those who come in contact with him was reasonably assured.
The District also proposed that McCullough authorize a limited release of medical information, and inform employees coming in contact with him that he was being treated for an illness, that they should not become involved in confrontations with him, and that they should immediately report any confrontations to the dean, human resources, or law enforcement. In addition, McCullough was not to discuss his psychiatric disability or treatment with anyone other than Martinez and human resources. The District proposed that McCullough or his health insurance plan pay for the treatment and medical reports, that McCullough would be on probation for one year after returning to full time work, and that he be subject to a “no tolerance policy” in which any confrontations would lead to dismissal proceedings. The District also suggested that McCullough contact a psychiatrist to begin treatment and confer with his psychiatrist about the interactive process. Since McCullough’s paid leave benefits were going to end in January 2008, the District proposed an interactive process meeting for the second week of January 2008 with the goal that McCullough would return to work in February 2008.
No response was received from McCullough until Hannon wrote a one-page letter dated January 15, 2008, stating that McCullough felt that “the general tenor of [Cabrillo’s] letter was inappropriate,” and that he was being punished for suffering a work-related injury or complaining about the work environment. The letter contained no substantive response to the detailed proposal from the District. Hannon reiterated his objections to the process used to select Dr. Snyder, and suggested a meeting or mediation but did not propose any dates.

VIII. Notices of Dismissal and February 2008 Meeting

On February 4, 2008, the District sent McCullough a four-page “Preliminary Notice of Intention to Dismiss”, citing two provision of the CBA: (1) his “inability to perform assigned duties” (CBA, Appendix E, Section II (b)), and (2) a “mental disability [that] precluded [him] from satisfactory performance of [his assigned] duties . . . as determined by competent medical authority with due regard for applicable state and federal disability laws” (CBA, Appendix E, Section II (p)). The District stated that McCullough had rejected psychiatric treatment and the interactive process; that both McCullough and Dr. Abarbanel knew the identities of the doctors the District had selected and did not object to them; and that McCullough never stated any reason for objecting to the doctors. The District also proposed a meeting at a specific date and time to discuss the matter. The meeting was rescheduled to accommodate Hannon.
On February 26, 2008, the District and McCullough met, with their respective counsel also in attendance. McCullough said that he did not seek psychiatric treatment between May and July 2007, because he only wanted to rest his back. He repeatedly denied that he had any mental disability or needed psychiatric treatment. He said he was the subject of a conspiracy and had reported the District to the FBI and the Justice Department.
On March 4, 2008, the District sent McCullough a notice of dismissal effective March 18, 2008, based on the same grounds as the Preliminary Notice. The notice advised McCullough of his right under the CBA to a hearing to appeal the District’s decision.

IX. Administrative Appeal

McCullough exercised his right to appeal the dismissal and requested a hearing, held on February 5 and March 3, 2009, before Norman Brand acting as an advisory arbitrator. Arbitrator Brand issued his decision in June 2009, concluding as follows:
· The District had cause, as defined in Appendix E, Section II (p) of the CBA, to dismiss McCullough.
· There was no basis for dismissing McCullough under subdivision (b) of Section II of Appendix E of the CBA (“Inability to perform assigned duties due to failure to meet or retain job qualifications . . . .”.
· The District had “ample cause to require Mr. McCullough to undergo a psychiatric evaluation” and that there was “no basis for ignoring or invalidating Dr. Snyder’s examination or report” since “McCullough agreed in writing to Dr. Snyder or any other psychiatrist” the District selected.
· The District “had the right to require Mr. McCullough to meet all the medical requirements Dr. Snyder deemed necessary to his successful return to work,” including psychiatric treatment before returning to work, continuing psychiatric treatment, and confirmation that he continued to treat.
· It was not clear whether the District had the right to require McCullough (1) to give his permission for a limited disclosure of his disability to others at work; (2) not to discuss this treatment with coworkers; and (3) to have his psychiatrist assure the safety of District employees.
· The District did not have the right to impose a “no tolerance” requirement or to place McCullough on probation for a year.
· There was no evidence that McCullough “participated in an interactive process through which he asked for modified, different or fewer ‘accommodations’ to be returned to work.”
· McCullough’s attorney’s letter had rejected the District’s proposal, and McCullough never proposed any accommodations for returning to work.
· The evidence indicated that McCullough did not believe he had a psychiatric disability.
· While some of the District’s proposals were unrelated to Dr. Snyder’s recommendations or contrary to the CBA, McCullough did not object solely to those but instead rejected all of the District’s requirements.
· While some of the District’s proposals went beyond what it could require, the parties were just at the beginning of the interactive process and McCullough had declined to participate in that process.
In August 2009, the District’s board of trustees adopted the arbitrator’s findings and conclusions affirming McCullough’s dismissal.

X. McCullough’s Petition for Writ of Administrative Mandate in the Trial Court

In October 2009, McCullough filed a petition for writ of administrative mandamus with the superior court. In his petition, he sought an order compelling the District to set aside its decision to terminate his employment, arguing that the arbitrator’s findings were not supported by substantial evidence. McCullough contended that (1) there was insufficient evidence that he had a mental disability that prevented him from doing his job; (2) the proceedings were invalid because the District did not meet his demand to be involved in the selection of the evaluating psychiatrist; (3) he was being disciplined solely because of his psychiatric disability; (4) the conditions imposed by the District were unreasonable and illegal and violated the CBA; and (5) the District failed to engage in the interactive process to accommodate his disability.
At the hearing, the court denied the writ petition, concluding that the arbitrator’s findings and the District’s decision to terminate were supported by the weight of the evidence, and that, consequently, there was no prejudicial abuse of discretion.

Discussion

McCullough contends that the trial court erred (1) because it did not direct the District to permit him to participate in the choice of the evaluating psychiatrist, and (2) because it did not address his contention that the District violated the CBA when someone other than the district superintendent selected Dr. Snyder. McCullough asserts that these breaches of the CBA nullified the District’s decision to terminate him. He also contends the trial court erred when it concluded that he failed to engage in the interactive process.

I. Timeliness of Appeal

McCullough filed his notice of appeal on July 6, 2010, two months after the court announced its intended decision on May 6, 2010, but almost four months before the court filed its written order denying the writ petition on November 1, 2010. Although McCullough’s notice of appeal was premature, in such cases we have the discretion to validate the appeal by treating the notice of appeal as if it had been filed immediately after entry of the order denying the writ petition. (Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1239, fn. 2; Cal. Rules of Court, rule 8.104 (d)(2), (e).) We elect to do so in this case and proceed to the merits.

II. Standard of Review

McCullough’s opening brief does not discuss the standard of review, and he did not file a reply brief. The District’s brief has correctly stated the two-part standard of review applicable in this case.
A. Trial Court’s Review of Agency’s Determination: Independent Judgment
Code of Civil Procedure section 1094.5[4] governs judicial review by administrative mandate of any final decision or order by an administrative agency. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313 (Wences).) The trial court’s review of an adjudicatory administrative decision is subject to two possible standards of review, depending upon the nature of the right involved. (Ibid., citing Code Civ. Proc., § 1094.5, subd. (c).) “If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence.” (Ibid., citing Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32 and Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) “The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings.” (Ibid.)
This higher standard of review applies in this case: “ ‘[d]iscipline imposed on public employees affects their fundamental vested right in employment,’ and therefore, when a public employee challenges an employer’s disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence. [Citations.]” (Wences, supra, 177 Cal.App.4th at p. 314.) This is particularly true where the disciplinary action at issue is the termination of employment, as was the case here. (Ibid.) Although the trial court did not make an express finding that the administrative decision at issue in this case involved a fundamental vested right, the court did say that the “challenge[d] decision [was] subject to an independent judgment standard of review,” from which we infer such a finding.
B. This Court’s Review of the Trial Court’s Decision: Substantial Evidence
Where, as here, the trial court has exercised its independent judgment on a petition for writ of administrative mandate, we review the record to determine whether substantial evidence supports the trial court’s conclusions. (Bixby v. Pierno, supra, 4 Cal.3d at p. 143, fn. 10; Wences, supra, 177 Cal.App.3d at p. 318.) “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original emphasis omitted.) As long as there is substantial evidence, the appellate court must affirm, even if the reviewing justices personally would have ruled differently if they had presided over the proceedings below and even if other substantial evidence would have support a different result. (Id. at p. 874.) “ ‘In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ ” (Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 321.)[5]

III. McCullough Authorized the Selection of the Evaluating Psychiatrist.

McCullough contends that the trial court “ignored the CBA” when it did not direct the District to allow him to participate in the selection of the psychiatrist. The District argues that substantial evidence supports the trial court’s conclusion that the District complied with its obligation to consult with McCullough regarding the selection of Dr. Snyder. Specifically, the District contends that McCullough’s March 26, 2007 e-mail authorized it to schedule any necessary examinations and, alternatively, that the e-mail and McCullough’s subsequent conduct should be interpreted as a waiver of the District’s obligations under the CBA.
Article 14 of the CBA addresses paid leaves of absence for employees covered by the CBA. Article 14.5.1 provides in relevant part: “When requested by the District, based on concern for the inability of an employee to perform his/her duties, an employee shall undergo an examination by a physician selected by the District Superintendent, in consultation with the employee and his/her doctor and at his/her request, the Union representative” (hereafter Article 14.5.1).
Regarding this issue, the trial court found that McCullough “agreed in writing to Dr. Snyder’s evaluation, or that of another psychiatrist, and Dr. Snyder’s report could therefore be considered.” The court stated that the CBA “does not mandate that an employee agree[] to the particular selection of an evaluator, nor does it indicate that the employee had the final say in the decision as to who the evaluator will be.”[6]
The court’s finding is supported by substantial evidence. After McCullough voiced his paranoid delusions to several staff members and then used his work e-mail account to send a paranoid e-mail to TLC, the District had reason to be concerned about his ability to continue to perform his duties as theater manager. Thus, the District had the right to request a medical examination under Article 14.5.1.
Article 14.5.1 provides that the physician shall be “selected by the District Superintendent, in consultation with the employee and his/her doctor and at his request, the Union representative.” In this case, McCullough himself was the only person with whom Article 14.5.1 required the District to consult, and there was substantial evidence to support the trial court’s conclusion that the District did consult with him regarding the selection of Dr. Snyder. Since McCullough was not receiving medical or psychiatric treatment, there was no treating doctor with whom the District could consult. Article 14.5.1 required the District to consult with McCullough’s union representative only at his request, and the record contains no evidence of such a request.
If McCullough had an objection to the scheduling of the psychiatric evaluation or the District’s choice of physician, he had a right to file a grievance for any alleged “misinterpretation, violation or misapplication of the provision of” the CBA pursuant to the grievance procedure set forth in Article 17 of the CBA. The grievance procedure required him to engage in an informal discussion with his immediate manager (Dean Martinez) within 20 days of learning of the appointment and, if he remained dissatisfied, to submit a formal written grievance within 10 days of the informal discussion. It is reasonable to infer that McCullough was familiar with these requirements, since he served as a union steward for many years, including time as chief steward, and had represented his coworkers in several dozen grievances.
Rather than object to the selection of physician or initiate grievance proceedings, McCullough sent his March 26, 2007 e-mail, stating: “Please consider this e-mail as a full authorization to schedule any medical appointments that you, and the College, may feel will satisfactorily determine my fitness for continuing to serve the College” as theater manager. Since the District had already disclosed the identities of the doctors it had selected, it is reasonable to infer from this e-mail that McCullough had no objection to either Dr. Snyder or Dr. Bryant. McCullough’s testimony was disputed that he received a phone call from personnel saying he had to approve Dr. Snyder or be terminated, and both the arbitrator and the trial court, as triers of fact, could disbelieve it.
Moreover, even after this e-mail, McCullough by his conduct consented to the District’s selection of physicians. He did not object to the selection of Dr. Snyder when he contacted the District on April 19, 2007 to advise that he was too sick to attend the appointment set for that day. McCullough’s physician, Dr. Abarbanel, did not object to the selection of Dr. Snyder in any of the three reports he made to the District. Since Dr. Abarbanel’s May 1, 2007 report mentions Dr. Snyder by name, it is clear he knew the identity of the psychiatrist the District had selected. Moreover, the District deferred to Dr. Abarbanel’s opinion that McCullough was not ready to see Dr. Snyder in May 2007, by canceling the May 19, 2007 appointment and not rescheduling until Dr. Abarbanel advised that McCullough was able to undergo the evaluation. All this evidence supports the trial court’s finding that the District complied with its obligation under Article 14.5.1 to consult with McCullough and his doctor regarding the selection of the examining physician.
By the time McCullough retained counsel in late August 2007, it was too late for him to file a grievance regarding this issue under the CBA’s grievance procedures. Attorney Hannon’s first letter to the District confirmed again that McCullough had “no objection to attending the psychiatric appointment” already set. By the time McCullough’s counsel first made an objection concerning the selection process, the appointment with Dr. Snyder had been rescheduled twice and almost six months had passed since McCullough first agreed to Dr. Snyder. Moreover, McCullough never demonstrated how he was prejudiced by what essentially was the District’s refusal to allow him to withdraw his consent.
Since we conclude that the District did consult with McCullough regarding the choice of examining physician and that he participated in the selection process, we shall not address the parties’ waiver arguments.

IV. Failure of Trial Court to Address Issue Whether the District Superintendent Selected Dr. Snyder Does Not Warrant Reversal.

McCullough contends that the trial court erred because it failed to address one of the issues raised in his writ petition: namely, the question whether the District Superintendent selected Dr. Snyder, as required by the CBA. McCullough argues that Article 14.5.1 of the CBA requires that the evaluating physician be “selected by the District Superintendent, in consultation with the employee and his/her doctor . . . .” (italics added) and that the District violated the CBA because Dr. Snyder was selected by the District’s Vice President of Business Services and not the District Superintendent. McCullough argues that he raised this issue in his writ petition and at the hearing on the petition, but the trial court neither addressed the issue nor made any factual findings regarding this alleged breach of the CBA. He asserts, without evidence, that the “obvious purpose of having the District Superintendent select the physician is to provide a layer of protection against improper labor actions against employees by mid or low level managers against union employees. By requiring the District Superintendent to select the evaluating physician, the employee is protected against actions taken for less than proper reasons by employees who are not authorized to make district wide decisions.”
Contrary to his assertions, while McCullough raised this issue briefly in his memorandum of points and authorities in support of the writ petition, he did not discuss this issue at the hearing on his writ petition. Moreover, although this issue was briefed in the trial court, nothing in the record suggests that McCullough raised the issue in the administrative hearing before Arbitrator Brand.[7]
“Generally, a litigant is not permitted to raise arguments in an administrative mandamus proceeding that were not presented in the first instance to the administrative agency or hearing officer.” (Cal. Administrative Mandamus (Cont.Ed.Bar 3d Ed. 2011) § 3.3, p. 49.) This rule is part of the doctrine of the exhaustion of administrative remedies and the analogous “full presentation” requirement that a litigant present his or her arguments and evidence fully at the administrative hearing level. (Id. at §§ 3.3, 3.49, pp. 49-50, 82.) The failure to raise an issue or to present evidence at the administrative proceeding results in a forfeiture of the right to present that evidence or to raise the issue before the trial court, whose function is to review the administrative record. (Morgan v. Community Redevelopment Agency (1991) 231 Cal.App.3d 243, 258.) We therefore conclude that the issue was forfeited at the administrative level and that the trial court therefore did not err by failing to address this question.
Even if we were to conclude that the issue had not been forfeited, we would nevertheless find no error. Neither party requested a written statement of decision from the trial court, and the court is required to render a statement of decision explaining the factual and legal basis for its decision only on timely request of a party. (Code Civ. Proc. § 632; Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1301 [Code Civ. Proc. § 632 applies to administrative mandamus proceedings in which the trial court exercises its independent judgment].) When, as here, the parties have waived a statement of decision by failing to request one, the appellate court will presume that the trial court made whatever factual findings are necessary to support the judgment or order for which there is substantial evidence in the record. The necessary findings of fact will be implied and the only issue on appeal is whether there is substantial evidence to support the court’s implied findings. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, superseded on other grounds by statute as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448-449; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) The doctrine of implied findings is a “natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.)
The order in this case simply denied the writ petition. Consequently, the issue is whether substantial evidence supports an implied finding that the District complied with Article 14.5.1’s requirement that the District Superintendent select the evaluating physician. (Michael U. v. Jamie B., supra, 39 Cal.3d at p. 793.) We conclude that there was sufficient evidence to support such a finding. First, Ard’s March 8, 2007 letter states that “the District” scheduled the psychiatric examination with Dr. Snyder pursuant to Article 14.5.1. A reasonable inference from that statement is that Cabrillo complied with the procedure in Article 14.5.1 and that the District Superintendent selected Dr. Snyder. Second, the letter does not state that Ard selected the physician. The fact that Ard authored or signed the letter on behalf of the District is not evidence that Ard selected Dr. Snyder or that the District violated the CBA. Third, there was no evidence that Ard selected Dr. Snyder as McCullough now contends.
Assuming McCullough raised this issue at arbitration, he had the burden to prove that the District failed to comply with this requirement. Since there was no evidence that anyone other than the District Superintendent selected Dr. Snyder, McCullough has failed to satisfy his burden of proof on this issue. If the appellant has the burden of proof at trial and fails to satisfy it, the absence of evidence on point will not result in reversal on appeal where the standard of review is substantial evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 654-655.)
Finally, Ard testified that her duties as Vice President of Business Services included supervising the human resources department. In addition, Ard signed the CBA on behalf of the District. Thus, Ard had considerable authority within the management of the District and expertise in employee and labor relations. Consequently, even if Ard selected Dr. Snyder, there was little risk of “improper labor actions . . . by mid or low level managers against union employees,” as McCullough argues. Even if there were error in this regard, McCullough fails to demonstrate how that error was prejudicial. There is no evidence that the District Superintendent would have selected anyone other than Dr. Snyder.
For all these reasons, we conclude that there was no reversible error with regard to the court’s alleged failure to address the question whether the District Superintendent selected Dr. Snyder.

V. Substantial Evidence Supports the Trial Court Ruling Regarding McCullough’s Failure to Participate in the Interactive Process.

McCullough challenges the trial court’s finding that he failed to engage in the interactive process by failing to admit his disability and failing to acknowledge a need for treatment. He argues that the question whether he admitted his disability is irrelevant and that the court’s findings are “factually untrue.” McCullough also argues that “it is clear that the District failed to engage in a good faith effort to accommodate [his] disability.”
Regarding the contention that the court’s findings are not true, when we review a case under the substantial evidence standard of review, as we do here, we do not reweigh the evidence or make factual findings. “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original emphasis omitted.)
We begin our analysis with a review of the legal principles that govern the interactive process.

A. Legal Principles Governing Interactive Process

To provide equal employment opportunity to disabled persons, employers must make “reasonable accommodation[s]” to enable an employee or applicant with a known disability to perform a position’s essential functions. (42 U.S.C.S. §§ 12111, subds. (8), (9), 12112, subd. (a).) The interactive process is the key procedural mechanism for facilitating the integration of disabled employees into the workplace. (Shapiro v. Township of Lakewood (3d Cir. 2002) 292 F.3d 356, 359; see Gov. Code, § 12926.1, subd. (e) [“The Legislature affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation, as this requirement has been articulated by the (EEOC) in its interpretive guidance of the (ADA).” (Parentheses added.)].) Government Code section 12940, subdivision (n) provides that the employer must engage in a “timely, good faith interactive process . . . in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” Although the statute does not expressly so provide, the employer must initiate the interactive process if the employee’s disability is known or apparent to the employer. (Prilliman v. United Air Lines, Inc. (1997) 53 CA4th 935, 950.) In this case, McCullough’s coworkers and supervisor became aware of his psychiatric condition based on his conduct at work. The District then obtained Dr. Snyder’s report, which confirmed a psychiatric disability. It also complied with its obligation to initiate the interactive process when its counsel sent a letter to Hannon setting forth the District’s detailed proposal for accommodating McCullough’s disability.
The interactive process requires communication and good faith exploration of possible accommodations by both employer and employee. (Humphrey v. Memorial Hospitals ASS’N (9th Cir. 2001) 239 F.3d 1128, 1137 (Humphrey).) The employee must cooperate in good faith with the employer, including providing information that the employer may require to explore accommodations. Typically, the employee provides the employer with a list of restrictions that must be met to accommodate the employee’s disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266 (Jensen); King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442-444.) The interactive process contemplates that the employer and employee will communicate directly with one another and the employee may not generally require the employer to communicate exclusively through the employee’s attorney, except in unusual circumstances. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 247.)
The “ ‘interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees’ with the goal of ‘identify[ing] an accommodation that allows the employee to perform the job effectively.’ [Citation.] . . . [F]or the process to work ‘[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.’ [Citation.] When a claim is brought for failure to reasonably accommodate the claimant’s disability, the trial court’s ultimate obligation is to ‘ “isolate the cause of the breakdown . . . and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” ’ ” (Jensen, supra, 85 Cal.App.4th at p. 261.)

B. Findings of Arbitrator and Trial Court Regarding Interactive Process

Arbitrator Brand made findings of fact and conclusions of law regarding the interactive process between McCullough and the District:
· The District had the right to require McCullough “to meet all the medical requirements Dr. Snyder deemed necessary to his successful return to work,” including psychiatric treatment before he returned to work, continuing psychiatric treatment after he returned to work, and confirmation from the psychiatrist that Mr. McCullough was attending treatment and not regressing.
· It was not clear that the District had the right to require a limited medical disclosure to McCullough’s coworkers, that McCullough not discuss his condition with others, or to have the psychiatrist assure the safety of other District employees.
· The District did not have the right to impose a “no tolerance” requirement or to place McCullough on probation for a year.
· There was no evidence that McCullough “participated in an interactive process through which he asked for modified, different or fewer ‘accommodations’ to be returned to work.”
· McCullough’s attorney’s letter rejected the District’s proposal, and McCullough never proposed any accommodations for returning to work.
· The evidence indicated that McCullough did not believe he had a psychiatric disability.
· While some of the District’s proposals were inappropriate, McCullough did not object solely to those but rejected all of the District’s requirements.
· While some of the District’s proposals went beyond what it could require, the parties were just at the beginning of the interactive process, and McCullough had declined to participate in that process.
The trial court concluded that the arbitrator’s findings and the District’s decision to terminate based on those findings were supported by the weight of the evidence. The court stated that “[w]hile accommodations initially proposed by the [District] were improper, they were simply the beginning of the interactive process. They were proposals only, and the [District] has shown due regard for the state and federal disability laws.” The court stated that McCullough “has declined to engage in the interactive process by failing to acknowledge a disability, failing to acknowledge a need for treatment, and a rejection of the recommendation of Dr. Snyder.”

C. Substantial Evidence Supports the Findings.

Promptly after receiving Dr. Snyder’s report, the District’s counsel sent a December 21, 2007 letter to McCullough’s counsel setting forth the District’s detailed proposal for accommodating McCullough’s disability. Concerned that McCullough’s leave benefits were running out, the District also proposed a meeting during the second week of January 2008 with a goal of returning McCullough to work by February 2008. Rather than schedule a meeting, Hannon waited until the time frame proposed by the District had nearly lapsed, and then sent a letter which utterly failed to address the substance of the District’s proposal. Hannon did not provide any medical or psychiatric reports setting forth McCullough’s work limitations or propose any other ways of accommodating McCullough’s disability. Instead, he complained about the “general tenor” of the District’s letter; argued that McCullough was being punished for having a work-related injury; and repeated the objection to the selection of Dr. Snyder.
By the time the parties participated in an interactive process meeting on February 26, 2008, more than 60 days had passed since the District sent its proposal for accommodating McCullough’s disability and McCullough had been on paid leave for almost one year. He still had not commenced the first step in the process of returning to work: psychiatric treatment. His two visits with Dr. Abarbanel were intended, respectively, for the purposes of postponing the District’s examination and obtaining a release to return to work. McCullough never followed either of Dr. Abarbanel’s recommendations for psychotherapy and the use of psychotropic medication. At the meeting, McCullough repeatedly denied that he had any mental disability or needed psychiatric treatment, at the same time insisting that he was the subject of a conspiracy and disclosing that he had reported the District to the FBI and the Justice Department. McCullough did not provide any medical or psychiatric reports setting forth his work limitations, describe his work limitations, comment on the accommodations proposed by the District, or propose any accommodations of his own. As the arbitrator observed, McCullough did not ask for modified, different, or fewer accommodations; he did not agree to any of Dr. Snyder’s recommendations; and he did not object to any of the conditions that the District proposed that were later found inappropriate.
In Humphrey, the court held that an employer failed to engage in the interactive process wh