Do v. The Regents of the
Filed 5/13/13 Do v. The Regents of the University of California CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
JAMES DO,
Plaintiff and Appellant,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Respondent.
D061056
(Super. Ct. No. 37-2011-00083720-
CU-WM-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Ronald L. Styn, Judge.
Affirmed.
Law Office
of Jose A. Gonzales and Jose A. Gonzales for Plaintiff and Appellant.
Paul,
Plevin, Sullivan & Connaughton, Sandra L. McDonough and Corrie J. Klekowski
for Defendant and Respondent.
Plaintiff
and appellant James Do appeals the judgment denying his petition for a
defendant and respondent Regents of the University
of California (University). (Code Civ. Proc.,
1094.5.) Do's employment at a University
medical facility was terminated in August 2009, based on administrative
findings his statements and acts violated an employment policy against
workplace violence or threats.
On appeal,
Do contends the trial court incorrectly failed to apply the independent
judgment standard of review, because
he was a permanent employee deprived of a property right in employment and
arguably, only legal questions are presented for review. (Sarka
v. Regents of University
261, 271 (Sarka).) Do next contends
that even if the substantial evidence test is applied, insufficient evidence
supports the administrative decision that he posed any credible threat to his
supervisor.
In
response, the University argues the trial court correctly applied the authority
of Ishimatsu v. Regents of University of
California (1968) 266 Cal.App.2d 854 (
California Constitution, article IX, section 9, the University as a
constitutionally created state institution has been delegated the
quasi-judicial power to conduct its own administrative decisionmaking on staff
employment matters. (
terms of California Constitution, article IX, section 9, subdivision (a),
characterizing the University as a " 'public trust . . . with full
powers of organization and government.' " (Campbell
v. Regents of
311, 320 (Campbell),
relying on Ishimatsu.) California Constitution, article IX, section
9, subdivision (f) likewise delegates a broad range of powers and duties to the
University ("all the powers necessary or convenient for the effective
administration of its trust").
The views
expressed in Ishimatsu, supra, 266
Cal.App.2d 854, 864-865 have also
been discussed with evident acceptance and approval by the California Supreme
Court in Miklosy v. Regents of University
of California (2008) 44 Cal.4th 876, 889-890 (Miklosy). Because
substantial evidence has long been designated the appropriate standard of
review for an administrative decision made by such an agency, the University
argues for application of that standard and contends the record substantially
supports the dismissal decision, giving the trial court no basis to set it
aside.
Unlike
is not a case in which predominantly legal questions are presented on a given
set of facts. Nor is it a case that
would require us to re-analyze the authority characterizing the University as
an agency that is constitutionally delegated quasi-judicial administrative
decisionmaking authority, even in such employment matters. Instead, the trial court appropriately
applied the substantial evidence review standard to this set of administrative
appeals that involved conflicting viewpoints and that was appropriately
resolved at the administrative level, under the generally accepted line of
constitutional authorities. (
court appropriately determined there was no basis for setting aside the University's
decision that there was substantial cause to terminate Do's employment. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Events of Employment; Warning Letter and
Meeting
In January
2008, the University hired Do, an experienced intellectual technology
professional (IT), as a Programmer/Analyst II.
He was assigned to the University's radiation oncology department
located at the Moores Cancer
Center in La
Jolla, California (the medical
center).
Under
University employment policies provided to employees, online and in handbook
form, there is zero tolerance for "intimidation" or "threats of
violence" toward colleagues. (Medical
Center Policy (MCP) 538.2K;
"the Policy"). Intimidation is
defined by the Policy as "an intentional act towards another person, the
results of which causes the other person to reasonably fear for his/her
safety . . . ."
The Policy defines a "threat of violence" as "an
intentional act that threatens bodily harm to another
person . . . ."
Violation of these standards subjects the employee to discipline up to
and including dismissal, under University personnel policies.
In February
2008, Do began working with Richard Fletcher, his supervisor, as a two-person
team for providing computer assistance and maintenance services at the medical
center. Fletcher's supervisor was the
director of physics at the medical center, Todd Pawlicki. Fletcher supervised Do as they collaborated
on installing, configuring and maintaining the computer workstations, servers
and software for other personnel. As
Do's supervisor, Fletcher gave Do a performance review stating he met (not
exceeded) evaluation standards as of October
29, 2008. The medical center
professes a set of "Core Values" regarding teamwork and honesty, and
Do's performance was initially rated satisfactory in those respects.
During
April through July 2009, Do communicated by e-mail with a superior, associate
administrator for oncology services Trisha Lollo, to question certain IT
purchasing decisions involving Fletcher and others that he considered to be
unlawful or wasteful. On May 28, 2009, Fletcher asked Do to
help other IT personnel install new computers in a new building, but Do told
him that was not his job and refused.
While
Fletcher was on vacation, Do had problems at work in accessing computer records
for patients needing radiation treatment, since Fletcher's personal password
was required but unavailable to him.
When
Fletcher returned from vacation, he asked Do on June 4, 2009 to install a fax
machine, but Do said he was too busy, or made a similar comment. In any case, Do walked away to his
workstation and sat down. Fletcher
followed Do, and while standing somewhat behind and to the right of Do,
Fletcher asked Do what else he had going on.
According to Do, Fletcher said, "I want you to set up the fax
machines right now" and Do replied, "Can this wait?" Next, Do turned his head and said to Fletcher
"Get out of my face." Other
nearby employees overheard, and Fletcher thought that the situation was pretty
intense, felt disturbed, and left the area.
Over the
next month, Fletcher talked to Pawlicki many times about his problems with Do,
who sometimes disregarded his work-related requests. Pawlicki understood from Fletcher that Do was
demonstrating a pattern of behavior or neglect of the position that led up to
other issues, such that Fletcher believed he would not have a positive
experience in approaching Do about office work.
Pawlicki believed that the June 4 event seemed to take it to a different
level and increased the existing stress and strain between Fletcher and Do.
A few days
after the June 4 incident, Fletcher, Pawlicki and a lateral level supervisor,
oncology department clinical operations manager Laura Adams, decided to issue a
written warning to Do and referred the matter to the human resources department
for preparation. Fletcher went on
vacation again. Do had not previously
been issued any warning notices or letters of reprimand.
In early
July, Fletcher returned to the office, and within a few days, he met with Do to
discuss Do's recommendation that all key patient records retrieval personnel
should be given a password. Fletcher
agreed to change the records retrieval practice to accord with Do's recommendation.
In July
2009, Do complained about the ongoing records retrieval issue to his manager
Adams, telling her that Pawlicki was not very concerned about it, but the
problems could become dangerous to patients.
Do also told her that he thought Fletcher was trying to push him out the
door by sending him a job announcement from another employer.
On July 8,
2009, Adams and Fletcher met with Do.
They discussed the records retrieval issue, and then Fletcher delivered
a "Letter of Warning" to Do.
The letter referred to Do's May 28 "not my job" comment and
another matter, and then stated:
"On June 4, 2009 you refused to help with my request to set up the
new fax machines for the new building.
When I asked you what else you had going on you replied 'Get out of my
Face.' " Fletcher then asked
Do why he said that. Do explained that
he had said that so that he (Do) "wouldn't 'deck' " him
(Fletcher).
According
to later testimony from Fletcher and Pawlicki, the July 8 meeting ended soon
thereafter, with Fletcher feeling a little "stunned," intimidated and
afraid of physical harm from Do.
According to Do, he intended to explain that at the time, he had been
trying not to escalate the argument and thus he wanted Fletcher to leave him
alone or back off. Do felt
"shocked" to get a written warning, but not angry. He remembered he was slumping in his chair
during the meeting.
Fletcher
and Adams reported Do's explanatory comments at the July 8 meeting to Pawlicki
and to University human resources personnel (including labor specialist Thomas
Becker). A few days after the July 8
meeting, Adams sent an e-mail to Becker, Fletcher and Pawlicki, stating that
she had observed the July 8 meeting and heard Do explain to Fletcher that on
June 4, he had told Fletcher to get out of his face, because "I didn't want
to deck you," and that he had repeated it again later in the conversation,
stating "it is better than getting violent."
On July 10,
Pawlicki notified Do he was being placed on paid investigatory leave because he
had threatened violence against his supervisor during a disciplinary
meeting. By memo dated July 16, 2009,
Adams sent Do a notice of intent to terminate his employment July 31, based on
his response at the July 8 meeting to the question about why he told his supervisor
to get out of his face ("by indicating so that you wouldn't 'deck
him' "). Adams stated that the
above incident demonstrated unsatisfactory performance and inappropriate
conduct that was inconsistent with University policy and core values. Do was notified of his right to respond. He received a "Skelly" hearing
August 6, 2009, and the decision to terminate was not overturned.
with a termination date of August 7, 2009.
B. Administrative Appeals
Do appealed
his dismissal through three levels of University administrative review, but
each adhered to the termination decision.
Do originally raised issues regarding his arguable whistleblower
activities (complaining about excessive spending), but he has not pursued them,
instead focusing on the threat/intimidation reason given for termination, as
arguably insufficient.
Trisha
Lollo, associate administrator for oncology services, denied Do's Step 1
appeal, stating that her review showed that his termination for unsatisfactory
performance and inappropriate conduct was justified, due to violation of the
University's zero-tolerance standard and core values regarding threats,
intimidation or violence in the workplace.
In a letter dated April 19,
2010, Do's Step 2 appeal was denied by Paul Craig (Chief Human Resources,
Safety and Risk Officer for the medical center), as follows: "On July 8, 2009 during a disciplinary
meeting . . . you stated to your supervisor [Fletcher] in the presence of your
manager [Adams] that the reason for the inappropriate communication of June 4,
2009 was, 'So I wouldn't deck him.'
[This] was a verbally communicated threat of violence in direct
violation of MCP 538.2K and UCSD Medical Center's Core Values."
Third, an
evidentiary hearing before a non-university hearing officer was held on
November 17, 2010. Do, Fletcher and
Pawlicki testified and a tape-recorded transcript is in the record. Do agreed that saying "get out of my
face" had been inappropriate and explained that he often associated with
younger people who talk that way. He did
not remember using the term "deck you," and did not think he would
have used it. Do explained that in light
of his 18 years of experience in IT matters, he did not really need
instructions from Fletcher on how to accomplish a certain task. Do did not want to return to the same IT
department, in light of all that had happened, although he could do so and
improve his communication if necessary.
On December
20, 2010, the hearing officer issued his decision upholding the termination of
Do's employment. The hearing officer
acknowledged that Do may have been overqualified for his job as number two on
the team, which could have led to his frustrations there. The hearing officer ruled that on July 8,
2009, Do had committed an act that violated Policy 538.2K: "The act in question is the statement
[Do] made to Fletcher in response to the inquiry about what he meant by his
June 4 remark." This was determined
to amount to an "intentional act" within the meaning of the policy,
since it was made voluntarily and because Do intended to say what he said: "The response was not involuntary; it
was volunteered, and thus meets the Webster definition of an 'act.' It also is intentional; what he [Do] said was
intended to be said." Do's
statement was an act that "create[d] a fear of harm," and he had
intentionally "caus[ed] Fletcher to be fearful that [Do] might respond to
his attempts to supervise him by a physical attack on Fletcher." The University adopted the hearing officer's
recommendation of termination.
C. Administrative Mandamus Petition and Ruling
On January
13, 2011, Do filed a petition for writ of administrative mandamus seeking
reinstatement and lost compensation. He
lodged the administrative record and contended that the trial court should apply
its independent judgment in reviewing the decision. Do argued that the hearing officer's findings
of intentional threats were not supported by the weight of the evidence and
Fletcher could not have developed a reasonable fear of harm. Do claimed that he was dismissed based only
on speculation, and that his later expressed thoughts and explanation about why
he said what he said on June 4 did not provide an adequate basis for
termination
In
opposition, the University contended that a substantial
evidence standard of review applied, because it is a constitutional agency
authorized to conduct quasi-judicial review of employment-related
decisionmaking. (Cal. Const.,
art. IX, § 9.) Once that
standard was applied, the termination decision was proper for Do's demonstrated
insubordination, even if his comments on July 8 were not technically threats or
did not amount to intimidation at a criminal level. They were nevertheless implied threats that
were willfully made and therefore dismissal was justified for violation of
University policies.
A court
hearing on the petition was held on September 23, 2011. Do argued there was no evidence that he
intended to carry out any threat, or that he intended to cause Fletcher to fear
for his safety, but instead, he had been obligated to answer questions put to
him at the disciplinary hearing. In
reply, the University said no one had forced Do to explain himself in that
manner, but when he did so, the employer was entitled to determine that his
acts were in violation of University policy.
(See City of Palo Alto v. Service
Employees Internat. Union (1999) 77 Cal.App.4th 327 [an employee's threat
at the workplace did not necessarily require the employee to be fired;
interpreting prior version of section 527.8].)
At the
close of the argument, the trial court indicated Do's petition would be denied,
while expressing this reservation:
"I'm not sure I would come to the same result if I were the hearing
officer or if it was an independent standard of review, but using the
substantial evidence test in the context of the language, I think I'm compelled
to make the finding that I do in my tentative.
I think it's a very close case. . . . [¶] . . . [¶] . . . I'll be very
candid. When I first looked at it, I said wow, how could they fire a guy for
this. That was my first reaction. But then when I got more into it, I think
that under the law, they had the right to do what they did, but I think it's
very, very close." A ruling was
issued denying the petition, and Do appeals the judgment.
DISCUSSION
I
Section
1094.5 sets forth the procedure for judicial review of an order or a decision
by an administrative agency. (
agency's abuse of discretion may be established if its decision is not
supported by the findings, or the findings are not supported by the evidence. The next step of the procedure, determining
the applicable standard of review as specified in section 1094.5, subdivision
(c), depends on the type of administrative agency decision that is involved,
due to principles protecting the separation of powers. (Bixby,
supra, at p. 141.)
It is well
recognized that certain types of administrative agencies are "of
constitutional origin" and "have been granted limited judicial power
by the Constitution itself." (
Retirement Assn. (1974) 11 Cal.3d 28, 35 (Strumsky); Boren v. State
Personnel Board (1951) 37 Cal.2d 634; Covert
v. State Board of Equalization (1946) 29 Cal.2d 125; Palm Springs Turf Club v. California Horse Racing Board (1957) 155
Cal.App.2d 242.) As explained by a
commentator: "A relatively few
state agencies derive their quasi-judicial or adjudicating powers from the
Constitution itself. Their findings are
not subject to reexamination in a trial de novo [citation], but will be upheld
if supported by substantial evidence."
(8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 260,
p. 1168.) Such constitutionally
authorized quasi-judicial agency decisions are subject under section 1094.5,
subdivision (c), to substantial evidence review, in which "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." (8 Witkin, Cal. Procedure,
Do argues
that such a constitutional delegation of quasi-judicial power must be express
and specific, as opposed to the more general delegation of quasi-judicial
administrative decisionmaking power that was analyzed in Ishimatsu, supra, 266
Cal.App.2d 854, 864-865, regarding the language of the California Constitution,
article IX, section 9. Absent very
specific language of express delegation, Do contends that the alternative
provisions of section 1094.5, subdivision (c) may be applied to his case, to
allow or require the trial court to exercise its independent judgment on the
evidence, and to determine the agency has abused its discretion "if the
court determines that the findings are not supported by the weight of the
evidence." He justifies this
request by pointing to the nature of his property interest in his previous,
permanent employment.
This was a
close case, as the trial court candidly acknowledged, and thus the standard of
review utilized on appeal is critical for evaluating the validity of Do's
claimed property right to continued employment, as opposed to the University's
right to administratively interpret and apply its employment policies. However, as next explained, Do can point to
no authority requiring the University to assert a more explicit constitutional
delegation of quasi-judicial administrative decisionmaking power, even in an
employment rights case.
II
A. Development of Case Law
Do's
petition and appeal allege that the hearing officer committed a prejudicial
abuse of discretion, his decision was not supported by the findings, and the
findings were not supported by the evidence.
(§ 1094.5, subd. (b).) Do
argues the explanatory statements he made on July 8 did not amount to
intimidation or threats that were made at that time toward anyone in
particular, within the meaning of the University policies and employee
handbook, and if the trial court were allowed to utilize independent judgment,
it would have agreed with him.
Do fails to
recognize that not every circumstance of public employment creates vested
property rights to continue it. Instead,
statutory or due process entitlement to independent judgment review in a
particular case depends upon the type of public agency involved and whether the
agency was created by the Constitution in such a manner as to delegate
quasi-judicial decisionmaking powers.
This was made clear in Strumsky,
supra, 11 Cal.3d 28, 34-35: A right to "a full and independent
judicial review" of an agency's decision to terminate an individual's
public employment does not exist in
the case of agencies "of constitutional origin which have been granted
limited judicial power by the Constitution itself." (Ibid.,
italics omitted, citing Ishimatsu,
others.) Thus:
"It is established that when a review of a decision
of an agency falling within [such] categories is sought pursuant to section
1094.5 of the Code of Civil Procedure, the court's scrutiny of the agency's
factual findings is limited to a determination whether those findings are
supported by substantial evidence in light of the whole record --
of the agency affects a fundamental vested right." (Strumsky,
supra, 11 Cal.3d 28, 35; italics
added.)
27, 32, are generally accepted authorities stating that the California
Constitution has granted the University quasi-judicial powers regarding matters
falling within its broad powers to organize and govern the university, and this
includes quasi-judicial adjudication of employment rights. (Cal. Const., art. IX, § 9, subd. (a);
(1988) 198 Cal.App.3d 1084, 1091 (Apte).) Such University administrative decisions are
subject to review under the substantial evidence rule. (8 Witkin, Cal. Procedure,
1208-1209.)
Similar to
the state personnel board in Skelly,
" 'a statewide administrative agency which derives [its] adjudicating
power from [article IX, section 9, of] the Constitution . . . [; therefore, its
factual determinations] are not subject to re-examination in a trial de novo
but are to be upheld by a reviewing court if they are supported by substantial
evidence. [Citations.]' " (Skelly,
supra, at p. 217, fn. 31.) The California Constitution, article IX,
section 9, subdivisions (a) and (f) together enumerate the University's powers
and duties regarding management and disposition of its property, and also
specify it shall have "all the powers necessary or convenient for the
effective administration of its trust" (Cal. Const., art. IX, § 9,
subd. (f)), such as engaging in litigation and delegating to its committees and
faculty "such authority or functions as it may deem wise." (Ibid.)
More
recently, in Miklosy,
Court confirmed, or took as established, this "unique constitutional
status of the University of California," in the course of applying certain
procedural provisions of the California Whistleblower Protection Act (Gov.
Code, § 8547 et seq.). In
establishes the [University] as a "public trust . . . with full powers of
organization and government." (Cal.
Const., art. IX, § 9, subd. (a).) We have observed that 'Article IX, section 9,
grants the [R]egents broad powers to organize and govern the university and limits
the Legislature's power to regulate either the university or the [R]egents.
. . .' This grant of constitutional power to the
University includes the grant of quasi-judicial powers, a view that is generally accepted in our jurisprudence."
added; citing Ishimatsu,
some ways like an independent sovereign, retaining a degree of control over the
terms and scope of its own liability."
(Miklosy, supra, at p.
890.) " 'It is apparent that
the Regents as a constitutionally created arm of the state have virtual
autonomy in self-governance.' "
(Campbell, supra, 35 Cal.4th
at pp. 320-321.)
title="">[4] Staff discipline matters fall within these
powers.
Moreover,
there is no reason to believe that these statements in Campbell, supra, 35 Cal.4th at pages 320 through 321, or
of interpreting whistleblowing statutes, simply because the analyses were delivered
in such cases. Nothing new has been
presented to require us to find lacking the basic constitutional language of
article IX, section 9, that delegates quasi-judicial administrative
decisionmaking powers to the University.
(See Amluxen v. Regents of
University of California, supra,
53 Cal.App.3d 27, 32-33 [discussing delegation language issue].)
In
California (2011) 191 Cal.App.4th 703, 709, this court acknowledged the
authority that the University is a " 'statewide administrative
agency' " and as " ' "a constitutionally created
arm of the state [it has] virtual autonomy in
self-governance." ' "
(Ibid.) The few exceptions to this rule of
" 'general immunity from legislative regulation' " are not
implicated in Do's case: the
Legislature's powers of (a) appropriation for salaries; (b) enaction of general
police power regulations to be applied to the University; and (c) legislation
that regulates "matters of statewide concern not involving internal
university affairs." (
Thus, it is
well settled that the delegated powers that are necessary or convenient for the
effective administration of the University's business include quasi-judicial
administrative authority to resolve individualized employment disputes, by
applying University policies to particular cases. (Ishimatsu,
supra, 266 Cal.App.2d 854, 861.) The underlying rationale is that the
University and its Board of Regents are public legal entities
" 'charged with the government of a public trust.' " (Regents
of University of California v. Superior Court, supra, 3 Cal.3d 529, 539, fn. 12.)
Such
"governance" of University activities requires due process in the
carrying out of its personnel functions, such as adopting and administering
employment policies. In
general, the University's consideration of an employment-related complaint
"cannot be so perfunctory or arbitrary as to violate the due process
guarantee of the state or federal Constitutions." Earlier, in Ishimatsu, supra, 266
Cal.App.2d 854, 861, the court noted " '. . . the power [to dismiss
public employees] may not be exercised arbitrarily in disregard of the
employee's constitutional rights.' "
(Citing Bagley v. Washington
Township Hospital Dist. (1966) 65 Cal.2d 499, 503-504; Ball v. City Council of City of Coachella (1967) 252 Cal.App.2d
136, 141.)
Such
constitutional grants of quasi-judicial adjudicative power do not offend due
process standards. "Although
administrative agencies are not courts in any manner, administrative agencies
exercising adjudicatory powers are judicial bodies in effect or in a broad
sense have and exercise 'adjudicatory' or 'determinative' powers and functions
and, in some cases, perform the same functions as a court would in the court's
absence. This power is not judicial in a
sense that constitutes a violation of the principle of separation of powers,
but is administrative and therefore described as 'quasi-judicial.' " (2 Cal.Jur.3d, supra, Administrative Law, § 359, pp. 429-430, fns. omitted.)
Generally,
a court's determination of whether an agency's hearing procedures are in
compliance with relevant statutes and regulations, and with an agency's own
policies, requires application of the rules of statutory interpretation and
construction. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 12.) In such cases,
" 'The appropriate mode of review . . . is one in which the
judiciary, although taking ultimate responsibility for the construction of the
statute, accords great weight and respect to the administrative
construction.
[Citation.]' " (
21, 28 [general rule of judicial deference to agency's interpretation of its
own regulations, unless interpretation is clearly erroneous or unreasonable].)
B. Independent Judgment Standard for Trial Court
Does Not Apply Here
Despite the
above generally accepted case law approach that allows the University a broad
scope of quasi-judicial administrative authority for resolving job-related
disputes, Do continues to argue that the trial court was required or authorized
to apply the independent judgment
standard of review in light of Sarka,
supra, 146 Cal.App.4th 261, 271. In
that case, the appellate court did not disagree with the trial court's
utilization of the independent judgment standard for evaluation of the facts
and law underlying a University employment decision. Plaintiff Dr. Sarka, a medical doctor, had
been discharged from University employment "for repeatedly refusing to
follow the directions of his superior to modify his approach to patient care." (Id.
at p. 263.) The University
administrative hearing officer upheld the termination, as did the trial court.
In Dr.
Sarka's appeal, the court determined as a matter of law that the hearing
officer and the trial court had each appropriately considered and properly
applied a statute that declares a public policy that employers may not penalize
physicians "principally for advocating for medically appropriate health
care." (Bus. and Prof. Code,
§ 2056, subd. (c); Sarka, supra, 146
Cal.App.4th 261, 271.) Further, the
appellate court ruled that substantial evidence supported the trial court's
conclusion that Dr. Sarka was discharged for insubordination, not for any
improper reason, and judgment for the University was affirmed. (Ibid.)
Since the
principal issue in Sarka,
271 through 272, was "whether the hearing officer and the trial court
committed legal error by failing to apply Business and Professions Code section
2056," the appellate court appropriately decided that issue on a de novo
basis, "[t]o the extent the trial court [had] decided pure questions of
law on undisputed facts," and determined that the trial court did not err
in that respect. Next, the appellate
court stated it had reviewed the "trial court's exercise of independent
review of an agency determination for substantial evidence." (Id.
at p. 271, citing Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 824.)
However, in neither aspect of its review did the appellate court in
expressly or impliedly address the precise issues of law presented in
concerning the nature of the University under the California Constitution,
article IX, section 9, as a constitutionally created statewide agency that has
been delegated "quasi-judicial power by the Constitution." (Ishimatsu,
supra, at p. 862.) Rather, the
principal challenge in Sarka
presented pure statutory interpretation questions, which could properly be
treated as questions of law, before any substantial evidence review of the record
was conducted by the appeals court.
Do's case
is not so narrowly focused on a purely legal issue. He was not discharged in violation of any
public policy, statutory or contractual right.
(See Ishimatsu,
comply with University policy and core values.
He has not been deprived of the right to work elsewhere, only at the
University. (Ibid.; see Arroyo v. Regents
of University of California, supra,
48 Cal.App.3d 793, 798.) Accordingly,
the standard set forth in Ishimatsu,
supra, 266 Cal.App.2d 854, 862, for an employee's challenge of the
administrative decisions of a constitutional agency that were rendered in a
quasi-judicial forum, applies here:
"[T]he reviewing court is limited to determining whether there was
substantial evidence supporting the agency's decision." (Ibid.) Sarka,
supra, 146 Cal.App.4th at page
270, is not to the contrary, because of the nature of the legal issues actually
decided in it. In ruling on Do's case,
the trial court correctly distinguished Sarka
and therefore it properly declined to exercise its independent judgment to
determine whether the weight of the evidence supported the findings. (§ 1094.5, subd. (c).)
III
A. Substantial Evidence Review and Standards
As outlined
above, the trial court appropriately applied substantial evidence review to
examine the entire administrative record, to determine whether the agency's
findings were supported by substantial evidence. (JKH
Enterprises, Inc. v. Department of Industrial Relations (2006) 142
Cal.App.4th 1046, 1058; MHC Operating
Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204,
217-220.)
On review,
our task is similar. Here, as in
in an independent reconstruction of the events:
our view of the record must be circumscribed by a limited appellate
review of University proceedings."
We examine all relevant evidence in the administrative record and view
that evidence in the light most favorable to the judgment, resolving all
conflicts in the evidence and drawing all inferences in support of the
judgment. (Young v. Gannon (2002) 97 Cal.App.4th 209, 225;
Education (1987) 195 Cal.App.3d 1331, 1340; Hosford v. State Personnel Bd. (1977) 74 Cal.App.3d 302, 306-307.)
The burden
is on Do, the appellant, to prove there was an abuse of discretion through the
issuance of a decision that was unsupported by substantial evidence. (Young
v. Gannon, supra, 97 Cal.App.4th
at p. 225.) Only if no reasonable person
could reach the conclusion reached by the administrative agency, based on the
entire record before it, will a court conclude that the agency's findings are
not supported by substantial evidence. (
Cal.App.2d 541, 545; Oskooi v. Fountain
Valley Regional Hospital (1996) 42 Cal.App.4th 233, 243 [a reviewing court
must uphold administrative findings unless they are so lacking in evidentiary
support as to render them unreasonable].)
B. Issues Presented; Analysis
Do attacks
the evidentiary support for the dismissal decision in several ways. First, he contends there was no evidence he
had any intent to cause Fletcher to fear for his own safety, and no termination
decision would be proper unless Do could be proven to have such an intent. He acknowledges that the standards for
evaluating threats or intimidation in the workplace are different from those
for evaluating criminal threats. (See
229-233 [discussing Pen. Code, § 422].)
He argues that his June 4 statement, "get out of my face" was
less than seriously threatening, nor did his explanatory comment on July 8
about not "decking" Fletcher (upon receiving the written warning)
amount to a threat at that time. He
contends his statements at the July 8 meeting were nothing more than an
expression of his internal thoughts or interpretation about what previously happened,
and he was not acting aggressively on July 8, but was slumped in his chair, so
evidence of intimidation is completely lacking.
Do also
argues that the evidence does not support any conclusion that Fletcher could
have had any "reasonable" fear of harm on the day of the "get
out of my face" incident, or a month later, when Do was confronted and
questioned about it. He objects that the
hearing officer should not have relied in this matter upon Adams's e-mail,
because it was hearsay. He contests the
probative value of its statement that she was at the July 8 meeting and she
understood Do to explain that he had told Fletcher to get out of his face,
because it was "better than getting violent" to tell him so. Adams did not testify at the hearing about
those understandings, so she cannot supply the only corroboration of Fletcher's
testimony about his beliefs. (Gov. Code,
§ 11513, subd. (d) [hearsay evidence cannot by itself support an
administrative finding].)
The trial
court's order analyzes all the evidence presented and acknowledged there was a
dispute about the events leading up to the June 4 statement, but in any case,
the court found that the statement itself and at least one of the July 8
statements at the meeting (so that Do would not "deck" Fletcher),
were undisputed. We agree with Do that
the trial court's ruling is mistaken in referring to Adams as
"testifying" at the administrative hearing, regarding Do saying,
"it's better than getting violent."
Her statement to that effect only appears in an e-mail sent to Becker,
the labor specialist, to summarize the events of the meeting at which she was
present.
Adams's
e-mail was not the only evidence presented on the intimidation issue. Do did not deny making the statement,
"so that I wouldn't deck him," but testified that he did not remember
it or think he would have done so.
Fletcher testified he felt threatened after the July 8 meeting, and it
seemed like Do was trying to intimidate him then. There was testimony from Pawlicki that after
the June 4 statement and up until the time of the July 8 meeting, Fletcher was
expressing growing discomfort in managing Do.
As the hearing officer noted in his decision, Do may have been
overqualified for his job as number two on the team, and he showed frustration
in taking supervision. The trial court
found there was substantial evidence to support the hearing officer's finding
that Do's July 8 statement caused Fletcher to reasonably fear for his safety,
in light of the nature of their work as a two-person team who worked closely
together. The record supports the
court's conclusion that under the evidence presented, "[w]orking in close
physical proximity to an individual who has made statements indicating he at least
contemplated a physical attack is sufficient to establish a reasonable fear for
one's safety."
Do next
argues that since he did not intend to create fear, and since Fletcher should
not reasonably have felt fear, no more than speculation was brought forward to
support the charges of threats or intimidation.
Do therefore contends no "serious misconduct" was committed
that would have justified the dismissal remedy, so the University should have
followed its own procedures for progressive, lesser discipline, and not doing
so amounted to violation of his substantive due process rights. (University Personnel Policies 62 (Mar. 1,
2002), 64 (Jan. 1, 2001) [providing for corrective action before
discharge].) However, as outlined above,
the hearing officer did not rely merely on speculation of future harm, because
the evidence demonstrated instances of growing stress and strain in the working
relationship, over time, that could have caused Fletcher to have developed a
reasonable fear for his safety. This was
sufficient to show Do's statement was an intentional act within the meaning of
the zero tolerance policy, as the University officials were entitled to
interpret the policy. (
As
acknowledged by the trial court, progressive discipline is not warranted under
University policy when acts of insubordination or other "serious
misconduct" have been proven. Under
all of the circumstances, the hearing officer was justified in finding that
Do's intentional statements were acts of intimidation in violation of
University policy, so that a lesser remedy was not required. For the same reasons, Do's argument that he
is unfairly being punished for his private thoughts is not justified, when his
statements are viewed in context of the work circumstances and the delivery of
the warning letter.
On
substantial evidence review, we do not "weigh the evidence, consider the
credibility of witnesses, or resolve conflicts in the evidence or in the
reasonable inferences that may be drawn from it." (Huang
v. Board of Directors (1990) 220 Cal.App.3d 1286, 1293-1294.) Viewing the evidence in the light most
favorable to the judgment, resolving conflicts and drawing inferences in
support of the judgment, we conclude that although this was a close case, as
the trial court frankly acknowledged, the University provided
hearing officer could reasonably conclude that the University's personnel
policies were violated. (
JKH Enterprises, Inc. v. Department of Industrial Relations,
DISPOSITION
The
judgment is affirmed. Each party shall
bear its own costs.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
IRION,
J.
name="_ftn1" title="">[1] All further statutory references are to the Code of Civil
Procedure unless noted.
v. State Personnel Board (1975) 15 Cal.3d 194, 215 ["preremoval
safeguards must include notice of the proposed action, the reasons therefor, a
copy of the charges and materials upon which the action is based, and the right
to respond, either orally or in writing, to the authority initially imposing
discipline"].
