Weissburg v. Los AngelesCountyCivil Service Commission

Filed 9/9/08 Weissburg v. Los Angeles County Civil Service Commission CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Affirmed.

Diane B. Weissburg, in pro. per.; and Joan T. Daniels for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Raymond G. Fortner, Jr., County Counsel, Manuel A. Valenzuela, Jr., Principal Deputy County Counsel, and Edwin A. Lewis, Deputy County Counsel, for Real Party in Interest and Respondent.

_______________________________________

Diane B. Weissburg appeals a judgment denying her petition for a writ of mandate against the Civil Service Commission (Commission) of the County of Los Angeles. She challenges the Commissions denial of her claims for employment discrimination and retaliation. She contends (1) the Commission and its hearing officer denied her due process and a fair hearing and prejudicially abused their discretion by failing to enforce her subpoenas for records, (2) the evidence compels the conclusion that the Department changed her working hours in retaliation for her discrimination claim, (3) the administrative record before the trial court was incomplete, and (4) the county counsels representation of her employer, the Los Angeles County Department of Children and Family Services (Department), while providing legal advice to the Commission was an impermissible conflict of interest. We conclude that she has shown no error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Administrative Proceedings

Weissburg is an Assistant Regional Administrator for the Department. She applied for a promotion to the position of Regional Administrator, but she did not receive the promotion and another candidate was selected. She filed a claim with the Commission on July 27, 2005, alleging that she was denied the promotion because she was white. On September 21, 2005, the Commission granted her a hearing. On September 26, 2005, she received notice that her work hours had been changed from the day shift to a new overnight shift. She filed a second claim with the Commission on September 28, 2005, alleging that her work hours were changed in retaliation for her prior claim. The Commission granted her request for a hearing on her second claim.

Weissburg experienced health problems shortly after she began working the overnight shift, and applied for a medical hardship transfer to a daytime position. The Department instead granted her medical leave under the Family Medical Leave Act, although she had not requested medical leave. She was never actually placed on leave, but was reassigned to a day shift. She filed a third claim with the Commission on November 8, 2005, alleging that she was placed on medical leave involuntarily in retaliation for her prior claims. The Commission granted her request for a hearing on her third claim.

A hearing on the three claims was conducted before a hearing officer for several days in November 2005 and February to April 2006. Weissburg served numerous subpoenas for records on the Department. The Department and the Los Angeles County Department of Human Resources made motions to quash and motions for protective orders relating to the subpoenas. The hearing officer denied the motions. Weissburg complained to the hearing officer several times that the Department had failed to comply with the subpoenas. The hearing officer directed the Department to determine whether there were any further responsive documents in several categories and, if so, to produce them. The Department produced further documents. Weissburg moved to exclude evidence that was not timely produced and for sanctions. The hearing officer denied the motions.

The hearing officer issued a report and recommendation on June 16, 2006. She found that the selection process was not discriminatory based on race and that the denial of a promotion was nondiscriminatory. She also found that there was no causal connection between Weissburgs discrimination claim and the change in her working hours because there was no evidence that the decision maker, Jennifer Lopez, was aware of the claim at the time of the decision. The hearing officer also concluded that the shift change was not an act of retaliation. She further found that there was no improper motive in the Departments approval of medical leave and that Weissburg suffered no damage as a result because she was never actually placed on leave and continued to be paid for her regular daytime working hours. The hearing officer therefore recommended the denial of Weissburgs claims.

The Commission adopted the hearing officers findings and recommendation and denied the claims in October 2006.

2. Trial Court Proceedings

Weissburg filed a verified petition for writ of mandate in the trial court in October 2006. She alleges in her first amended verified petition filed in April 2007 that the commissions decision is not supported by the evidence, that the hearing officers and the Commissions failure to enforce her subpoenas against the Department was a denial of due process, and that the county counsels representation of the Department while providing legal advice to the Commission was an impermissible conflict of interest. After a hearing on the merits, the trial court issued a written ruling.

The trial court applied the independent judgment standard in reviewing the Commissions decision. The court concluded that the denial of a promotion was not discriminatory based on race, that there was no causal connection between Weissburgs discrimination claim and the change in her work hours, and that she suffered no damage as a result of the medical leave approval because she was never actually placed on medical leave. The court therefore concluded that the evidence supported the Commissions decision. The court concluded further that Weissburg never sought judicial enforcement of her subpoenas during the administrative proceedings and failed to show any infringement of her right to present evidence or to cross-examine witnesses, and that she therefore failed to establish a due process violation. The court entered a judgment denying the petition in July 2007. Weissburg timely appealed the judgment.[1]

3. Subsequent Events

Weissburg visited the Commissions offices in February 2008 to obtain a copy of a document that she was aware of but was not included in the certified administrative record. At that time, a Commission employee located a box of documents related to her claims. Weissburg looked through the box, found the document that she was looking for, and arranged to return the next day to obtain copies of the other documents in the box. When she returned the next day, Weissburg was told that the county counsel had advised the Commission not to produce the documents to her. A Commission employee also refused her request to provide a list of the documents in the box. The Commission later determined that the box contained only copies of documents from Weissburgs file and the hearing officers working papers and, approximately two weeks after she had visited the Commissions offices, informed her by voicemail and letter that she could pick up a copy of the documents. Weissburg has failed to do so.

CONTENTIONS

Weissburg contends (1) the hearing officer and the Commission denied her due process and a fair hearing and failed to comply with the Commissions own procedural rules by failing to enforce her subpoenas for records; (2) the evidence compels the conclusion that the Department changed her working hours in retaliation for her discrimination claim; (3) the administrative record before the trial court was incomplete; and (4) the county counsels representation of the Department while providing legal advice to the Commission was an impermissible conflict of interest.

DISCUSSION

1. Standard of Review

Code of Civil Procedure section 1094.5 governs judicial review of a final decision by an administrative agency if the law required a hearing, the taking of evidence, and the discretionary determination of facts by the agency. (Id., subd. (a).) The petitioner must show that the agency acted without or in excess of jurisdiction, did not afford a fair trial, or prejudicially abused its discretion. (Id., subd. (b).) An abuse of discretion is shown if the agency did not proceed in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Ibid.) [I]n cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (Id., subd. (c).) Regardless of whether the trial court properly reviews the agencys factual findings under the substantial evidence test or exercises its independent judgment on the evidence, the appellate court reviews the factual findings by the trial court under the substantial evidence test. (Fukuda v. County of Los Angeles (1999) 20 Cal.4th 805, 824.)

On appeal, we independently determine whether the agency afforded a fair administrative hearing and whether the agency prejudicially abused its discretion by failing to proceed in the manner required by law. (Environmental Protection & Information Center v. Cal. Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479; Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 87; see 2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2008) 16.50, p. 638.) In so doing, we defer to the express or implied factual findings by the trial court if they are supported by substantial evidence. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443.)

2. Weissburg Has Not Shown that the Commission Denied Her
a Fair Hearing or Failed to Comply with its own Procedural Rules

Rule 5.21(c) of the Civil Service Procedural Rules adopted by the Commission authorizes the hearing officer to suspend the hearing if a witness refuses to testify or to recommend that the Commission ask the county counsel to seek an order from the superior court directing the witness to cooperate.[2] Rule 5.21 also authorizes the hearing officer to report to the Commission any violation of rule 5.20, which generally prohibits interference with the orderly conduct of a hearing.[3] Rule 5.21(a) authorizes the Commission, after receiving a report from the hearing officer and affording the offender due process, to suspend the offender from the hearing, issue a warning, or take no action and resume the hearing.[4]

Weissburg challenges the hearing officers failure to refer to the Commission the Departments purported failure to produce documents responsive to the subpoenas. She argues that the hearing officer was required to seek to enforce the subpoenas by referring the matter to the Commission, and that the hearing officers failure to refer the matter to the Commission denied her a meaningful opportunity to obtain evidence supporting her claims and therefore denied her due process. Assuming without deciding that the Department failed to produce documents responsive to the subpoenas and that the failure constituted a witnesss refusal to testify within the meaning of rule 5.21(c) or a violation of rule 5.20 of the Civil Service Procedural Rules, we conclude that the decision whether to refer the matter to the Commission was committed to the sound discretion of the hearing officer. Rule 5.21 states that if counsel violates rule 5.20, the Hearing Officer, at his discretion, may formally warn the offender or suspend the hearing.[5] (Italics added.) Similarly, rule 5.21(c) states that if a witness refuses to testify or violates rule 5.20, the Hearing Officer may suspend the hearing (italics added) and recommend that the Commission seek judicial enforcement through the county counsel. This language commits to the discretion of the hearing officer the decision whether to formally warn the offender, or suspend the hearing and then report the matter to the Commission, or refer the matter to the Commission for judicial enforcement through county counsel. The hearing officer was not required to take those measures in all circumstances irrespective of the nature or severity of the purported violation.

Weissburg does not discuss the nature of the purportedly missing documents or their significance to her claims. She therefore has not shown that the circumstances here compel the conclusion that the hearing officer was required to take the enforcement measures available under rule 5.20 or 5.21 of the Civil Procedural Rules or that the failure to do so was a prejudicial abuse of discretion or a denial of due process.

Weissburg also apparently argues that the Department interfered with the orderly conduct of the hearing by failing to timely produce subpoenaed documents, producing documents that were false and misleading, and destroying documents, and that the hearing officers failure to report those violations to the Commission, and the Commissions failure to impose sanctions, was an abuse of discretion. Weissburg describes several purported instances of the Departments failure to timely produce documents, production of documents that were severely redacted, and destruction of documents. The hearing officer determined on at least one occasion that the Department had acted in good faith despite its failure to timely produce documents, and in denying sanctions on other occasions impliedly determined either that the Department had acted in good faith or that sanctions were otherwise inappropriate. Weissburg has not shown that the exercise of discretion by the hearing officer lacked a reasonable basis, or that the record compels the conclusion that the Department interfered with the orderly conduct of the hearing as contemplated by rule 5.20. Moreover, she does not adequately explain how she was prejudiced by the purported misconduct in light of the evidence supporting the Commissions findings on the merits of her claims. We conclude that Weissburg has shown no error.

3. Weissburg Has Shown No Error in the Finding of No Causation

The hearing officer and the Commission found that Lopez was the Department employee who decided to create a new overnight shift for an Assistant Regional Administrator and assigned Weissburg to that position. Weissburg previously supervised social workers on both the day shift and the overnight shift, although her working hours were limited to the day shift. Lopez determined that greater onsite supervision was required overnight, asked for volunteers, and after receiving none assigned Weissburg to the new overnight shift. The hearing officer and the Commission determined that there was no evidence that Lopez was aware of the discrimination claim at the time of her decision and therefore no evidence of a causal connection between the claim and the purported act of retaliation.

Weissburg argues that persons other than Lopez either ratified or otherwise contributed to the decision to change her working hours and that those persons were aware of her discrimination claim. Regardless of whether persons other than Lopez contributed to the decision, the question whether Weissburg suffered retaliation as a result of her protected activity (i.e., causation) is a question of fact. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1062; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 156.) Weissburg does not meaningfully discuss the evidence showing that there were legitimate reasons for the decision and has not shown that the evidence compels the conclusion that her working hours were changed in retaliation for her discrimination claim.

Weissburg argues that causation is established if the employer knew or should have known of a retaliatory act by an employee, yet failed to prevent it.[6] We need not address the merits of this argument because Weissburg has failed to show that the decision to change her work hours was motivated by retaliation.

4. Weissburg Has Established No Basis for Reversal Due to the Purported
Incompleteness of the Administrative Record

Weissburgs contention that the administrative record before the trial court was incomplete is based on her assumption as to the contents of the box discovered in the Commissions offices in February 2008. She describes the documents in the box as essential Exhibits and declarations of key witnesses and [e]ssential declarations about the failure of [the Department] to produce documents, but does not specifically identify the documents or the declarants. She acknowledges that she declined the Commissions offer to return to its offices to review the documents because she is convinced that any documents favorable to her must have been removed. She offers no evidence to contradict the Commissions declarations that the box contained only copies of documents from Weissburgs file and the hearing officers working papers.

Weissburg offers no legal argument to explain why these circumstances should justify reversal. We conclude that she has not established that the administrative record was incomplete and has shown no prejudicial error.

5. County Counsels Dual Role Provides No Basis for Reversal

Weissburg asked the Commission to stay the decision to change her working hours. After Weissburg and the county counsel, on behalf of the Department, briefed the issue, the Commission requested an opinion from the county counsel. The county counsel advised the Commission that it had no authority to issue such a stay, and the Commission denied a stay.[7] There is no indication that the county counsel acted as legal advisor to the Commission in connection with the hearing on the merits. Weissburg contends the county counsels representation of the Department while providing legal advice to the Commission in the same matter was a conflict of interest.

Weissburg has not shown that she objected to the county counsels dual role in any manner in the proceeding before the Commission. She did not move to disqualify the county counsel from representing either the Department or the Commission. Because it was not called upon to decide the issue, the Commission made no finding as to whether the deputy county counsel involved were sufficiently insulated from one another. (See Nightlife Partners, Ltd. v. City of Beverly Hills, supra, 108 Cal.App.4th at p. 96; 12319 Corp. v. Business License Com. (1982) 137 Cal.App.3d 54, 61.) Weissburg cites no evidence in the record to show either that the deputy county counsel representing the Department was not sufficiently insulated from the deputy county counsel advising the Commission or that there was any indication of bias or unfairness by the county counsel.

Apart from these concerns, Weissburg does not explain how a purported conflict of interest with respect to the ruling on the stay motion prejudiced the ruling on the merits of Weissburgs claims or denied her a fair hearing on the merits. Absent such a showing, we conclude that Weissburg has shown no basis for reversal.[8]

DISPOSITION

The judgment is affirmed. The Department is entitled to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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[1] We construe the notice of appeal from the order denying the petition as an appeal from the judgment subsequently entered. (Cal. Rules of Court, rule 8.104(e).)

[2] If a witness refuses to testify, or his conduct is in violation of Rule 5.20, the Hearing Officer may suspend the hearing. Upon recommendation of the Hearing Officer, the Civil Service Commission may request the County Counsel to obtain an order from the Superior Court which directs the witness to cooperate or be in contempt of the court. (Civil Service Procedural Rules, rule 5.21(c).)

[3] It is improper for any person at a hearing to: [] a) Insult, intimidate or behave discourteously to the Hearing Officer, any party, any witness or any other person attending the hearing; [] b) Display boisterous conduct or commit any kind of disturbance; [] c) Bring signs, posters, or large objects into the hearing room without the prior approval of the hearing Officer; [] d) Participate in any demonstration tending to disrupt the orderly conduct of the hearing; or [] e) Commit any other interference with the orderly course of a hearing. (Civil Service Procedural Rules, rule 5.20.)

[4] If the conduct of an advocate or counsel is in violation of Rule 5.20, the Hearing Officer, at his discretion, may formally warn the offender or suspend the hearing. In either case, the Hearing Officer shall file a written report to the Civil Service Commission describing the behavior and action taken.

a) The Commission, after receiving the report and after allowing the offender due process, may, depending on the severity of the action, and the frequency of its occurrence: [] 1) Suspend the advocate or counsel from the particular hearing and resume the hearing with another advocate or counsel of the affected partys choice; [] 2) Suspend the advocate or counsel from appearing at any Civil Service Hearing, for either a given period or for an indefinite period, and resume the hearing with another advocate or counsel of the affected partys choice; [] 3) Formally warn the offender, and resume the hearing; or [] 4) Take no action and resume the hearing. (Civil Service Procedural Rules, rule 5.21.)

[5] [T]he Hearing Officer shall file a written report to the Civil Service Commission describing the behavior and action taken (italics added), under rule 5.21 of the Civil Service Procedural Rules only if the hearing officer actually exercises his or her discretion to formally warn the offender or suspend the hearing.

[6] Weissburg cites Burlington N. & S. F. R. Co. v. White (2006) 548 U.S. 53 [126 S.Ct. 2405] in support of this proposition. Burlington held that the anti-retaliation provision in title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) prohibits any materially adverse act of retaliation rather than only retaliatory acts affecting the terms and conditions of employment. (Burlington, supra, at pp. 67-68.)

[7] Weissburg filed a petition for writ of mandate in the trial court, challenging the denial of a stay. The court denied the petition as moot in light of her reassignment to a day shift. Weissburg appealed the judgment. Division One of the Second District Court of Appeal concluded that the issue was moot, and affirmed the judgment. (Weissburg v. Los Angeles Civil Service Commission (Nov. 22, 2006, B190440) [nonpub. opn.].) We take judicial notice of the opinion by the Court of Appeal. (Evid. Code,  452, subd. (d).)

[8] Weissburg also argues that the county counsel improperly acted in dual capacities in connection with the box of documents discovered in the Commissions offices. We conclude that she has shown no prejudice and no basis for reversal for the same reasons discussed ante.