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Do v. Regents of University of California.

California Court of Appeals, Fourth District, First Division

May 13, 2013

JAMES DO, Plaintiff and Appellant,

Certified for publication 6/11/13

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2011-00083720- CU-WM-CTL 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 writ of administrative mandamus against defendant and respondent Regents of the University of California (University). (Code Civ. Proc., [1] § 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 of California (2006) 146 Cal.App.4th 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(Ishimatsu), which held that under the 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. (Ishimatsu, supra, at pp. 864-865.) That interpretive approach is based on the 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 University of California (2005) 35 Cal.4th 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, 864-865have 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 Sarka, supra, 146 Cal.App.4th 261, this 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. (Ishimatsu, supra, 266 Cal.App.2d atpp. 864-865.) On this record, the trial 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.


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 ...

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