California Court of Appeals, First District, Third Division
JOHN S. KAO, Plaintiff and Appellant,
UNIVERSITY OF SAN FRANCISCO et al., Defendants and Respondents.
City and County of San Francisco Super. Ct. No. CGC-09-489576
[Copyrighted Material Omitted]
Katzenbach Law Offices, Christopher W. Katzenbach and Conor D. Mack for Plaintiff and Appellant.
Vartain Law Group, Michael J. Vartain and Kathryn J. Burke for Defendants and Respondents.
Plaintiff John S. Kao sued the University of San Francisco (USF) for violations of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) in connection with the events surrounding his termination as a professor at USF. He also asserted causes of action against USF for violation of his right to privacy (Cal. Const., art. 1, § 1), and against USF and its Assistant Vice President for Human Resources, Martha Peugh-Wade, for defamation.
USF directed Kao to have a fitness-for-duty examination after faculty members and school administrators reported that his behavior was frightening
them, and the university terminated his employment when he refused to participate in the examination. The court granted a nonsuit against Kao on the defamation cause of action, and a jury ruled against him on his other claims. Kao contests the judgment on multiple grounds, but his principal contention is that USF could not lawfully require the examination. We disagree and affirm the judgment for USF.
A. Kao’s Threatening Behavior
Dr. Kao earned a Ph.D. in applied mathematics fro Princeton, began teaching mathematics at USF in 1991, and became a tenured professor in 1997. Kao was concerned about a lack of diversity of the faculty of the math and computer science departments, and submitted a 485-page complaint to the school in May 2006 alleging race-based discrimination and harassment. He lodged a 41-page addendum to the complaint in August 2007, to which Assistant Vice-President Peugh-Wade responded in September 2007. Kao was not satisfied with Peugh-Wade’s two-page response, which he said did not offer any remedies for the problems he perceived with the way the school recruited new faculty. The application period for hiring during the 2007-2008 academic year closed in December 2007, and fewer applications had been received than in prior years. On January 3, 2008, Kao met with mathematics professor Paul Zeitz and then Associate Dean for Sciences Brandon Brown about the school’s failure to advertise in professional journals.
At trial, Zeitz described his January 3 meeting with Kao as “the most upsetting thing that’s ever happened to me at my job.” Kao was “speaking very politely” about the job search “and then suddenly... was unable to control his emotions.” He was “very, very upset that... our employment ads did not include what he felt were the appropriate ads in print, ” and started “yelling and screaming.” Zeitz said, “[I]t was very personal. It was as though I had personally done something horrible to him.”
Zeitz was “terrified” by Kao’s behavior. He said that Kao was “an expert in martial arts.... I remember years ago he told me he was the ivy league judo champion. And some years prior to this incident, he told me that he had bought... a used wooden mannequin for punching practice. And so he is somebody who punches a wooden mannequin and is an expert in judo, and he is not in control of his emotions and he’s three feet away from me. I mean, I was extremely, extremely scared.” Zeitz was hired by USF the year after Kao and had never before been afraid of him, “[b]ut in 2008, it was this sudden change to complete irrational, uncontrollable rage....”
Kao testified that Zeitz told him Dean Brown had made the decision to advertise only in online databases, and Brown testified that Kao confronted him at his office on January 3. Brown said that Kao’s fists were clenched and he seemed very tense and angry. He “immediately began shouting about the mathematics job search. He was just incredibly agitated, enraged, really, about the placement of these job ads.” Brown testified, “I was frightened. I’d never been in a situation like that in the working world. Or anywhere else, really.... [I]f you want to give someone nonverbal clues that you are about to attack them, from my reading that’s what was going on.”
Zeitz, and mathematics professors Tristan Needham, Steven Yeung, and Stephen Devlin testified to disturbing behavior by Kao at a February 2008 faculty search committee meeting. Zeitz described Kao as having an “uncontrolled rant about things that made no sense... coupled with... changes in body language, changes in posture and changes in demeanor. It was very upsetting and very scary for me.” Yeung said that Kao was “yelling” and “standing up and leaning towards people” at the meeting, and he was “afraid that it would be not just verbal but get physical.” Needham said that Kao threw papers across the table, and “it was pretty intimidating.” Devlin said that Kao was “shaking with anger” and “screaming” at the meeting.
Kao’s concerning behavior continued throughout the spring semester. Needham, Yeung, and Zeitz testified that Kao became physically confrontational with them. Needham said that Kao “hit [him] quite forcefully on the shoulder” as they walked in opposite directions in a school corridor. Needham said he “knew how angry [Kao] was. It was clear. But to me, there was a big difference in crossing the line between the mental world and the physical world. I thought to myself if he can bump me, what’s to stop him from shooting me.” Zeitz said that Kao bumped into him twice and “this had never ever happened before.” Yeung described an incident when Kao was walking on the opposite side of a school corridor “and all of a sudden he took a sharp turn, and... was charging toward me and then [turned] right before [a] collision actually took place....” Yeung said, “As far as I could tell, he deliberately took this turn to approach me and then moved away. [¶]... I did not actually get hit, but it’s just bizarre. And again, next time maybe I wouldn’t be that lucky.... I just couldn’t understand what was going on. I was very frightened.”
Jennifer Turpin, who was the Dean of USF’s College of Arts and Sciences, testified to an incident on April 22 when she encountered Kao while walking to her car. She knew that Kao’s mother was ill and asked him how his mother was doing. Turpin was shocked when Kao became “enraged” by the question. “He kind of clenched his jaw and he looked mean and mad and he got right in my face and said, ‘Fine. Fine. How are you and how are your children
doing?’ ” Turpin wondered whether Kao knew that her daughter had been hospitalized, but worried that the question was a threat, and “figured I better make a beeline to my car.” As she was starting her car, she saw him “standing there with clenched fists glaring at me, like leaned over looking at me angrily.... I was kind of in disbelief, like, oh, my God, did that just happen? You know, I was really scared.” Turpin reported the incident to Peugh-Wade and others that day.
Needham testified to a similar incident at a math department party toward the end of the semester. Needham’s wife asked Kao how his mother was doing, and his “reaction was instantaneous rage.... [H]e got in her face and very close to her and again rigid with anger and raised his voice and said, ‘How’s your mother? How’s your mother? How’s your mother?’ ” in a “startling frightening way.” He “seemed out of control, ” and “left right after that.” Needham testified that “you could actually see [Kao] rigid with anger” on other occasions, “like white knuckles then the foaming at the mouth.” Another “new thing that semester is [Kao] started this wild cackling laugh....”
Needham, Yeung, and Zeitz testified that they feared Kao and worried about having contact with him. Needham was “afraid of [Kao] and afraid of provoking further anger by attempting to talk to him.” Needham felt “extremely uneasy being on campus” that semester, and said that “even with office hours and so on, I tended to keep my door shut unless I had to have it open.” Yeung said he tried “not to be too close, especially... one-on-one... with Dr. Kao, because... I feared for my safety.” “When I say I worry about my safety... I mean... whether I will be alive or dead, that kind of physical safety.” Zeitz said that coming to work “was very unpleasant, it was scary.... [W]hen I walked towards my office, I would think about exit routes. I would... make sure I had a phone with me. I tried to be aware of the location of Dr. Kao. I would try to avoid him... I would do everything I could not to have any interactions with him of any kind.” He said his fear of Kao was “the dominating thing of that spring for me.”
Zeitz said his colleagues shared his concerns: “[W]e’re not talking about happy people this spring. Everyone is looking kind of pale and shaken and... the dominant emotion is fear and confusion, because... it’s not expected. It’s not something that any of us had ever dealt with before. We don’t know what’s happening. We don’t know what’s going to happen. That’s how my colleagues were.”
B. USF’s Investigation
USF began investigating the situation in January. Peugh-Wade met with Brown on January 8 to discuss Kao’s interaction with Brown and Zeitz on
January 3. Brown recorded in an email to himself on January 9 that Zeitz told him about his encounter with Kao and had “lost a good bit of sleep since this incident.” Kao was “threaten[ing] the work environment of his departmental colleagues.... [¶] Including conversations of the last week, I have had three professors (requesting anonymity) tell me they fear that John may be capable of some sort of great violence. ‘I would not be surprised if he (harmed himself or others) at some point, ’ is the typical quotation.” Brown noted that he was “not qualified to determine if [Kao] is a threat to himself or others, but his behavior cannot be described as logical, predictable or within basic professional norms.”
On January 22, Dean Turpin contacted Paul Good, a clinical and forensic psychologist. Good testified that USF “was looking for some input on an educational level about markers for violence or things to look for that might suggest an escalation of hostilities... and how best for the institution to respond.” Good had a meeting with Turpin and Peugh-Wade on February 12 “about predicting violence, explaining risk factors such as pyschopathy and narcissism and other risk prediction schemes that might be related to their issues with Dr. Kao....” Good referred the deans to a threat assessment manual for schools prepared by the FBI.
Peugh-Wade met with Needham on April 28, and Zeitz on May 1, and learned much of the same information about Kao that was described in their trial testimony. Peugh-Wade also met on May 1 with Professor Peter Pacheco, the chairperson of the math department. Pacheco told her that he had had no personal experiences with Kao like those of Needham and Zeitz, but when asked what Kao was like “one-on-one, ” Pacheco answered, “His temperament is such I avoid any interaction with him.” Peugh-Wade also interviewed Deans Brown and Turpin. She was trying to determine whether “there was consistent concern from a number of people such that I needed to look into it further or someone, an expert needed to look into it further.”
On May 20, Peugh-Wade and several colleagues met with forensic psychiatrist James Missett, an expert on threat assessment and fitness-for-duty evaluations (hereafter FFDs). Peugh-Wade had provided Missett with summaries of her faculty interviews, and Brown told Missett about his concerns. Missett told the group that the only way to assess whether Kao could “do his job... in a safe way was to have an independent medical exam by an independent physician.” Missett testified that USF was required to provide a campus where people could safely work, and had “an affirmative obligation to take action with respect to Professor Kao.” He believed that the action “that appeared to offer both [USF] ...