California Court of Appeals, Third District, Placer
Order Filed 1/22/14
APPEAL from a judgment of the Superior Court of Placer County, Super. Ct. No. SCV25444 Charles D. Wachob, Judge.
Law Office of John P. Henderson, John P. Henderson, for Plaintiff and Appellant.
Ellis Law Group, Mark E. Ellis and Theresa M. LaVoie, for Defendant and Respondent.
ORDER OF PUBLICATION
The opinion in the above-entitled matter filed on December 23, 2013, was not in the Official Reports.
For good cause it now appears the opinion should be published in the Official Reports, and it is so ordered.
Michael Thornbrough appeals from a judgment denying his mandamus petition, which sought to overturn his dismissal as an Assistant Director of Maintenance for the Western Placer Unified School District (District). On appeal, Thornbrough raises a number of issues, including principally claims of notice violations at the underlying administrative hearing, bias by the hearing officer, and the improper use of legally-protected expressive conduct (protected speech) to support discipline.
The record shows that Thornbrough was involved in raising public awareness of problems arising from District construction projects. However, the record also shows he displayed blatant insubordination to a newly-appointed female supervisor, Cathy Allen, used a District computer for private purposes--including storing pornography--in violation of District rules, and retaliated against employees who had filed a prior sexual harassment claim against him. Three witnesses, District Superintendent Scott Leaman, Allen, and a management psychologist, opined he should be terminated.
We conclude Thornbrough has not established any due process notice violations, because the record supports the trial court’s finding that he was offered continuances to meet amended charges as they arose and, contrary to Thornbrough’s view, no statute or rule precluded the filing of amended charges.
We also agree with the trial court that the record shows Thornbrough’s challenge to the neutrality of the hearing officer was both untimely and meritless.
We sustain the trial court’s finding that even if any of the disciplinary charges arose from Thornbrough’s protected speech, the separate and extensive evidence of his wrongdoing amply justified termination.
We reject Thornbrough’s subsidiary contentions of error, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The original disciplinary charges against Thornbrough were filed on June 16, 2008. After a 15-day administrative hearing, the hearing officer issued a 22-page decision on April 26, 2009, recommending that the District terminate Thornbrough. The District adopted the recommendation.
Thornbrough then filed the instant mandamus petition. On January 25, 2011, the trial court issued a 57-page statement of decision rejecting his arguments. Thornbrough appealed from the ensuing judgment.
The trial court confirmed the bulk of the hearing officer’s factual findings. We provide a brief summary of relevant facts here.
The District hired Thornbrough in 1997, and his day-to-day work was competent. As Assistant Director of Maintenance, he supervised some employees and was required to “maintain effective working relationships” with other staff, and obey “all district requirements and Board of Trustee policies.”
In 2006, Thornbrough and his immediate supervisor, Director of Maintenance Frank Nichols, reported suspected wrongdoing in connection with District construction projects, and Leaman testified the District had to engage in litigation involving past projects, which is why he reorganized the administration and chose Allen to oversee construction projects.
In August 2007, Thornbrough and the District settled a prior disciplinary action. In part, the prior action accused Thornbrough of referring to David Zinzun, Jr. (David),  a subordinate of Mexican ancestry, as “Paco” and “Pepe, ” in a derisive manner. The prior action also accused Thornbrough of making an offensive comment about the breasts of David’s wife, District employee Rhia, the daughter of former District employee Richard Noyes, in the presenceof David and Noyes, conduct Thornbrough admitted in his testimony in this case. The settlement called for Thornbrough to be placed on unpaid leave for 15 days and undergo sexual harassment prevention training.
When Thornbrough returned to work on August 15, 2007, Leaman ordered him not to contact Rhia and not to go to the District office without explicit permission from specified employees. Leaman viewed this order as part of his management powers, not as discipline. Thornbrough sent an e-mail from his District computer to a former District employee, Jay Stewart, discussing this order, showing that he understood it.
Nonetheless, the next day, August 16, 2007, Thornbrough went to the District office without proper permissionand spoke with Rhia, claimed he shut the door at her request, and claimed he apologized to her. Her testimony was less benign: She testified he sent her an e-mail asking to meet and she agreed, expecting him to apologize. Instead, he came in, the door shut and accidentally locked, and Thornbrough tried to justify his comment about her breasts, said “negative things” about David and Noyes, suggested he had been instrumental in having her hired, and mentioned favors he had done for her and her mother, to make her feel guilty about having filed a complaint, which made her so upset that she cried. She later learned Thornbrough claimed she had falsified personnel records of David, when in reality all she had done was mistakenly place a document pertaining to David in the personnel file for David Zinzun, Sr. (David Sr.), David’s father and Rhia’s father-in-law.
Thornbrough testified he referred to Rhia’s breasts to show David and Noyes the inappropriateness of comments they had made, and claimed he met her to apologize to her, at David’s suggestion and with the approval of another employee, albeit not one with authority to approve the meeting. He was found to lack credibility.
Also on August 16, 2007, Thornbrough and Nichols submitted a “binder” to the District’s Board, a copy of which was given to the Grand Jury, raising purported improprieties regarding District construction projects.
At a meeting on September 18, 2007, the District’s Board promoted Allen to Assistant Superintendent of Facilities and Maintenance Services, an action openly opposed at the meeting by Thornbrough, who accused Allen of “intentionally deceiv[ing]” the Superintendent and the Board and the community, and claimed a current Grand Jury investigation was partly due to Allen’s “intentional sabotage” of the relationship between the maintenance department and the District. Thornbrough later stated he did not need Allen to tell him his job, called her a “fucking bitch, ” accused her of a “lack of brightness, ” and in a letter to her dated December 15, 2007, he criticized her abilities, claimed she was sending “our department backwards, ” and that “we do not need more bureaucrats[, ]” among other insubordinate comments and actions, leading the trial court to find Thornbrough “simply did not respect lines of authority in the workplace and, apparently, he did not care who knew that.”
Allen testified her promotion to assistant superintendent was effective October 1, 2007, and she previously had been the District’s director of site development as of July 1, 2006. Essentially, “from day one” she had problems with Thornbrough and Nichols, which she documented. They questioned her competence and authority, resisted change, and forced her to enlist Leaman to support her on “small things” that were otherwise unworthy of his time. Thornbrough was routinely discourteous and insubordinate to her. Thornbrough lacked the ability to lead and work with other people and would never change. Allen testified “the way” Thornbrough raised claims with the District Board and Grand Jury--including using lies and half-truths--“more than deserves termination[, ]” though she agreed it would be improper to punish him for protected speech itself.
David testified that after he had complained about Thornbrough’s comments about Rhia’s breasts, Thornbrough treated him differently, did not talk to him, and then falsely accused him of workers’ compensation fraud, the inquiry into which upset him and caused him to be placed on medication. David’s working conditions had improved since Thornbrough had been placed on administrative leave, but he anticipated retaliation for his testimony at the administrative hearing against Thornbrough.
On or about January 7, 2008, Thornbrough filed a written report claiming David had filed a false workers’ compensation report. He later accused Rhia of improperly recording absences for David, accused Leaman of failure to properly investigate claims of misconduct, and accused Allen of incompetence, claims replicated in new complaints to the District Board and the Grand Jury in April and May, 2008. In an e-mail to Noyes, Thornbrough referred to Allen and her assistant as “girls” who had a plan to get him and Nichols out of their way.
Dr. Larry Fogli testified as an expert in organizational psychology. After reviewing letters and e-mails Thornbrough wrote, and interviewing Leaman, Allen, and others, he reached the conclusion that no one trusted Thornbrough, he was disruptive, and he had no willingness to change his behavior, making him ineffective as a manager, therefore he should be terminated.
Leaman had been the District’s superintendent since July 2006, and previously was an assistant superintendent, principal, and teacher. Since Leaman became the superintendent, Thornbrough had been a “drain” on his time, and it became clear he was retaliating against the employees who reported him for sexual harassment, by making claims against David and Rhia that were investigated and proved baseless. Keeping Thornbrough on would be detrimental, inasmuch as he ignored the chain of command and was insubordinate, spread rumors and made false statements, and refused to let issues go or conform to proper management practices. Based on everything he had seen and heard at the administrative hearing which he had attended, Leaman’s view that Thornbrough should be terminated was “only... reinforced further[.]”
Massive amounts of downloaded pornographic and otherwise inappropriate material were found on Thornbrough’s District computer, and a computer forensic expert testified that the material’s download and storage was not inadvertent. Some of the images used the word “bitch” or otherwise denigrated women, one mocked Mexicans, and one mocked sexual harassment. Two of Thornbrough’s own witnesses, and Thornbrough himself, agreed some of the images were inappropriate, although Thornbrough--a managerial employee--claimed he was unaware of the District’s written computer policy, which clearly barred such material.
Nichols testified Thornbrough admitted surreptitiously tape-recording a meeting with Allen and another employee.
The hearing officer sustained most--but not all--of the charges against Thornbrough. Thornbrough was insubordinate toward Allen, and the incident involving going to Rhia’s office after a clear order not to do so was particularly egregious, a finding explicitly endorsed and emphasized by the trial court. The hearing officer found Thornbrough willfully misused District computer equipment both to store pornography and other inappropriate material, and to communicate confidential information to a former District employee. The hearing officer found Thornbrough engaged in retaliation by confronting Rhia, by claiming she mishandled time records for her husband, and by claiming her husband filed a false workers’ compensation report. The hearing officer found Thornbrough violated professional standards by surreptitiously tape-recording a meeting with Allen. The hearing officer rejected Thornbrough’s claim that he was the victim of retaliation for engaging in protected speech, finding that was not the motivating cause of the charges, and in any event, the evidence apart from any alleged retaliation amply supported termination. 
The trial court found Thornbrough’s reports of wrongdoing were not legally protected speech, but separately found his termination was justified based on misconduct unrelated to claimed protected speech.
Standard of Review
We have summarized the standard a trial court applies in mandamus proceedings arising from public employment administrative hearings as follows:
“ The trial court was required to exercise its independent judgment of the evidence before the [District]. [Citation.] In so acting the trial court had the power to make credibility findings....
“The trial court should have begun with a strong presumption that the [District]’s decision was correct, and placed on [appellant] the burden of proof to show that the decision was against the weight of the evidence. [Citation.] As explained by the California Supreme Court, ‘“[R]arely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.”’” (Sager v. County of Yuba (2007) 156 Cal.App.4th 1049, 1053; see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-824 (Fukuda); Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1130-1131.)
On appeal we apply the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824.) We must view the “evidence in the light most favorable to the trial court, indulging in every reasonable inference in favor of the trial court's findings and resolving all conflicts in its favor.” (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1078.) However, “we make an independent review of any questions of law necessary to the resolution of this matter on appeal[, ]” (id. at p. 1077) including the interpretation of ...