Filed 5/23/16 Gilmore v. Commission on Professional competence CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



REVA GILMORE,                                                       D069095

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. BLC1400012)

COMMISSION ON PROFESSIONAL
COMPETENCE,

         Defendant and Respondent;

PALO VERDE COMMUNITY COLLEGE
DISTRICT,

         Real Party in Interest and Respondent.


         APPEAL from a judgment of the Superior Court of Riverside County, David M.

Chapman, Judge. Affirmed.



         Reich, Adell & Cvitan, Marianne Reinhold, Carlos R. Perez, and Angela

Serranzana, for Plaintiff and Appellant Reva Gilmore.
          McCune & Harber, Heather M. Bean and Grace H. Kang, for Defendant and

Respondent Commission on Professional Competence and Real Party in Interest and

Respondent Palo Verde Community College District.

          Reva Gilmore was a community college instructor for the Palo Verde Community

College District (the District). She appeals the trial court's denial of her petition for a

writ of administrative mandamus to set aside the decision by the Commission on

Professional Competence (the Commission) to uphold her dismissal by the District.

Gilmore contends the trial court failed to apply the applicable independent judgment

standard, the stated grounds for dismissal were unfounded and it actually was due to

financial reasons, and the administrative law judge (ALJ) abused its discretion in

declining to impose lesser discipline. We find the trial court appropriately applied its

independent judgment, Gilmore fails to establish any absence of evidence to support her

dismissal or financial motive, and there was no abuse of discretion by the ALJ. We

affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND1

                                       I. Background

          Gilmore was an instructor in the office administration (OFA) program at Palo

Verde College (the College). As of Fall 2009, she was the only OFA instructor. Gilmore

has rheumatoid arthritis, which limits her ability to complete certain tasks, including

writing. The District provided Gilmore with an instructional aide and this arrangement


1     Consistent with our substantial evidence review, discussed post, we present the
evidence in the light most favorable to affirmance.
                                               2
was memorialized in an agreement following a dispute not at issue here. Callista La

Vigne was her aide from Fall 2009 through March 2010, followed by Teresa Gomez from

March 2010 through April 2010.

                             II. Events Leading to Dismissal

A. Update to the OFA Program

       Gilmore prepared a regularly scheduled five-year review of the OFA program

during the 2007-2008 academic year. Relevant here, Gilmore addressed enrollment

(including a significant decline in Spring 2007, followed by an increase in Fall 2007) and

her efforts to increase it. The District's Board of Trustees (Board) approved the review.

       The OFA program was suspended for the 2008-2009 academic year, due to

concerns regarding low enrollment (and other issues, including those noted in Gilmore's

five-year review) and the suspension was intended to revive the program. The District

directed Gilmore to update the OFA curriculum for the 2009-2010 academic year and

relieved her of teaching duties for the 2008-2009 year so she could do so. According to

Dean of Career Technical and Continuing Education George Walters, Gilmore returned

with a box of unorganized materials, including copies of the OFA portions of other

community college catalogs, job descriptions, and course outlines that he felt required

"extensive work with the division." She did not provide a report, written

recommendations or student learning objectives, or a list of needed equipment.

       In May 2009, Vice President of Instructional Services William Smith wrote to

Gilmore to advise her that her work did not "constitute a complete OFA program" and

she had "failed to finish the task . . . ." He noted the update had been prompted by her

                                             3
five-year review. He explained she would have a lighter than average teaching load in

Fall 2009 to provide time to complete the project (and identified the four courses she

would teach), described the remaining work, and stated it should be completed no later

than the October 2009 curriculum meeting.2

         Based on conversations with Smith and Walters, and the lack of documents

evidencing an update, District President and Superintendent James Hottois felt Gilmore

had not completed the assignment. The District hired a consultant, Katherine Maschler,

to assess the OFA program. Maschler's report found the College had a disproportionately

large number of OFA courses compared to other California community colleges. She

offered suggestions for a "possible restructuring of [c]ertificates, . . . elimination of some

courses and proposals for new ones," as well as regarding classroom configuration,

course materials and descriptions, updated equipment (including PC computers, rather

than Macintosh computers (Macs)), and student learning objectives.

         OFA courses were not offered during the 2010-2011 or 2011-2012 academic

years.

B. Tardiness and Absences

         On September 2, 2009, Smith sent Gilmore a memorandum noting she arrived to

an academic senate meeting after it adjourned and was 30 minutes late to a business

division meeting. Smith also reminded her about an e-mail he sent in 2008 stating she


2       Gilmore states she had a full teaching load in Fall 2009, but her cited testimony
reflects she taught the four courses in Smith's letter and Attaway's input, discussed post,
suggests she may only have had three courses that semester.

                                              4
was not excluded from required meetings. That same day, Gilmore missed a faculty/staff

meeting, resulting in another memorandum from Smith on September 4; in an undated

response, she indicated she was unable to attend due to medical issues. She also was

tardy to other meetings that month (remarking, on one occasion, that the clocks were

wrong).

       On January 20, 2010, Smith sent Gilmore a letter regarding her being 28 minutes

late to a class on January 13, 2010, stating in part, "[a]s you have been made aware in the

past, this tardiness is completely unacceptable." Smith had asked Dean of Distance

Learning Vicky Attaway, whose office was near Gilmore's classroom, to note when she

arrived at work during the 2009-2010 year. For Fall 2009, Attaway reported Gilmore had

one absence, as well as eight late arrivals with respect to two classes, but she did not

recall late arrivals (if any) for a third class. For Spring 2010, Attaway documented that

Gilmore missed the first day of class, had another absence, and arrived late on 35 out of

90 days.3

C. Grading

       The District also had concerns about Gilmore asking her instructional aides to

evaluate student work, which it viewed as a violation of state law and District policy.

       These issues came to the fore when Gomez became Gilmore's aide in March 2010.




3     Attaway apparently prepared a document to track attendance during both
semesters, but the Fall 2009 document was not produced in discovery or entered into
evidence.

                                              5
Prior to Gomez commencing work, Walters met with her, Richard Soto (her union

representative), Gilmore, and Victor Hernandez (Gilmore's representative) to discuss the

work Gomez was permitted to do. According to Gomez, Walters told Gilmore that

Gomez would not be able to grade papers, it was clearly communicated what grading

entailed, and Gilmore stated she was not going to have Gomez grade anything. Gomez

also reported Walters explained the process Gilmore had to follow if she wanted Gomez's

help; namely, she had to be present and tell Gomez what to write on the papers.

       Gomez said Gilmore nevertheless asked her to grade shortly after she began

working for her and then daily (Monday through Thursday). She told Gilmore she could

not do so and advised Walters "often" about what was occurring. Walters e-mailed

Gilmore on April 15 to remind her that it was her responsibility, not that of her aide, to

ensure grading and proofing were current. Walters forwarded the e-mail to Gomez on

April 20 and directed her: "do not grade, evaluate, proofread, or assess any student

work." He explained it was "perfectly ok to sit next to the instructor while she is

assessing, proofreading, evaluating, or grading student work so you can write the

comments on the student's work as the instructor tells you." Gomez stopped working

with Gilmore at the end of April 2010.

       Gilmore fell behind on grading, resulting in the District paying two instructors to

grade work for her at the end of Spring 2010.

                                  III. Disciplinary Action

       On March 15, 2010, Smith sent Gilmore a Letter of Reprimand for repeated

tardiness, among other things, and indicated the District intended to suspend her for one

                                              6
day. He noted she had failed to improve her tardiness in the five months since her initial

reprimand. Hottois subsequently advised Gilmore the Board approved a one-day

suspension without pay.

       On October 27, 2010, Hottois sent her a Notice of Proposed Recommendation to

Immediately Suspend Without Pay, Dismiss, and First Amended Statement of Charges.

He identified five grounds, including three relevant here: evident unfitness for service,

persistent violation of, or refusal to obey, applicable school laws and community college

regulations, and willful refusal to perform regular assignments without reasonable cause.

After discussing her history of prior discipline (including her failure to update the OFA

curriculum), it identified several "reasons for action," focusing on her tardiness and

grading practices. The Board approved this recommendation. On December 14, 2010,

the District notified Gilmore she was suspended without pay.4

                        IV. Administrative Hearing and Decision

       Gilmore objected and requested a hearing. The hearing took place over 10 days

and, relevant here, District witnesses elaborated on their issues with Gilmore's conduct,

while she explained her actions. We summarize briefly.

       First, with respect to the OFA update, Walters referenced course outlines, degree

programs, and possibly technology as traditional items that need to be updated. He

observed Gilmore's technology, including old Mac computers, was outdated and not

supported by the College, which used PC's. William Ponder, a computer and business

4     Gilmore had already been on a paid leave since August 2010, when a doctor
conducted a mental health examination and determined she was not fit for duty.

                                             7
instructor and the contract negotiator for the College's California Teachers Association

(CTA) chapter, agreed that updating OFA would include equipment.5 Walters also noted

they had hoped to receive a report from Gilmore, akin to what Maschler produced, but

did not.

       Gilmore testified her understanding was that they wanted her to "research [and]

present it to [her] advisory committee." She explained she researched every community

college in California, went to business sites, obtained their job openings, and reviewed

the duties and skills they required of employees, met with her advisory committee twice

(and e-mailed with them once or twice), and prepared new and updated course outlines.

The advisory committee members provided suggestions, including to add a customer

service class, which she took. She noted she was never directed to prepare a report.

       Next, regarding tardiness and absences, Walters testified that during the relevant

time period, Gilmore was late to meetings "more than not." He stated her tardiness did

not improve and she never took responsibility; instead, there "was always a reason."

Ponder observed her meeting attendance was sparse at best and, when she did attend, she

arrived late and left early. Former Vice President of Administrative Services Geri Butler

noted in a declaration that Gilmore was routinely late to staff meetings by 20 minutes.

       Gilmore's instructional aides corroborated Attaway's input on class attendance. La

Vigne testified Gilmore was punctual between 25 to 30 percent of the time to her Fall

5      The District presented Ponder's testimony in a declaration. This declaration, and
those discussed below, were admitted on an administrative hearsay basis. In an
administrative hearing, "[h]earsay evidence may be used for the purpose of
supplementing or explaining other evidence. . . ." (Gov. Code, § 11513, subd. (d).)

                                             8
2009 keyboarding and customer service classes and 20 to 25 percent of the time to her

Spring 2010 business math and master student classes. With respect to the first day of

the Spring 2010 semester, La Vigne explained Gilmore arrived approximately 30 to 40

minutes late, at which point she had already sent the students home. Gomez testified

Gilmore was on time approximately 30 to 40 percent of the time to the Spring 2010

business math and master student classes.

       Gilmore testified "I know that I was tardy but no one ever—no one ever came and

spoke to me and just chatted with me. . . ." She agreed she had provided excuses for her

tardiness, including being stuck in traffic and behind sheep. She also acknowledged she

did not take remedial actions every day, such as leaving her house early; however, she

explained she "did try to leave early but things happen." Hottois, who lived near

Gilmore, testified there was "almost no traffic," other than an occasional farm vehicle or

sheep once or twice a year.

       Finally, on grading, Hottois testified that instructional aides cannot evaluate

student work under the Education Code. He indicated he reviewed this position with the

academic senate, the CTA, and the staff union, and there was no disagreement. Walters

agreed that grading by aides was against the academic senate's standards. Attaway

likewise testified it was not allowed. She also clarified what grading involved; namely,

going over assignments and making sure they are correct or if they need to be revised.

       With respect to the March 2010 meeting regarding Gomez's duties, Walters

testified he made clear that no aide could grade papers outside Gilmore's presence and

she acknowledged she understood. Soto explained his understanding was that Gilmore

                                              9
had to sit with Gomez to "mark up the papers or whatever goes along with grading" and

that Gilmore did not "appear to be confused" as to Gomez's duties. Hernandez provided

input by declaration and agreed that in order for Gomez to assist, Gilmore had to sit near

her and tell her what to write. He further stated it was established Gomez could not make

decisions as to grades or "determine which answers were right and wrong" and that

Gilmore appeared to understand and did not object. Gomez testified Walters's April 15

e-mail to Gilmore matched what he told her during the meeting. Gilmore's recollection

of the meeting was that they said Gomez could proofread, Gomez said "no problem," and

there was no discussion regarding what proofreading would entail.

       La Vigne and Gomez confirmed Gilmore requested they grade student work. La

Vigne stated that the "majority of the time," Gilmore did not sit with her to evaluate

student work; "once or twice [they] went over the information together. Then after that

no." She acknowledged she would return assignments to Gilmore, at least on certain

occasions, and Gilmore took work home "at times." She felt she was evaluating their

work. Gomez acknowledged Gilmore used the word "proofing," but she understood that

to mean grading. Walters recalled speaking to Gilmore about the grading issue "six,

seven, eight times at a minimum, whether it be in writing or face to face."

       Gilmore acknowledged she had her aides proofread, but said she would verify the

work and that this practice was compliant with the Education Code. She testified Walters

advised her by e-mail that she had to sit next to the aide. She then attempted to correct

work in that manner "one time," but found it was not feasible, explaining: "it took an

hour and I had—to sit there, read the question to her one or two times and then read the

                                            10
answer, each word word [sic] by word for her to write down. . . ." She denied telling

Gomez to grade, but acknowledged saying she did not have "time to sit with her." She

also explained the reasons she fell behind on grading, including "admin decid[ing] that

my aide could no longer do the work they did before" and having distance learning

classes, which required more work.

       The ALJ issued its decision in December 2014. It found each issue constituted a

willful refusal to perform regular assignments without reasonable cause under Education

Code6 section 87735 and persistent violation of, or refusal to follow, state law and

District guidelines under section 87732, subdivision (f), and supported dismissal on those

grounds. The ALJ also found her conduct demonstrated evident unfitness for service and

warranted dismissal under section 87732, subdivision (d). It determined dismissal was

the appropriate penalty. We discuss these findings in more detail, post.

                    V. Administrative Mandamus Petition and Ruling

       Gilmore filed a petition for a writ of administrative mandamus under Code of

Civil Procedure section 1094.5. She contended the ALJ committed a prejudicial abuse of

discretion, on the grounds the findings and evidence did not support her dismissal. The

trial court denied the petition. The court observed it exercises its independent judgment

in reviewing the evidence, must afford a strong presumption of correctness to the

administrative findings, and that Gilmore bore the burden of establishing those findings

were contrary to the weight of the evidence. It found she failed to do so. It further noted


6      All further statutory references are to the Education Code unless otherwise noted.

                                            11
the ALJ found sufficient evidence to support dismissal on the second through fourth

grounds, observing Gilmore ran OFA for many years and identifying the conduct

supporting termination as the failure to update the program, tardiness and absences, and

failure to personally grade student work. Finally, the court explained it upholds the

penalty determination unless there is a manifest abuse of discretion and that the decision

to terminate Gilmore was not one. The court entered judgment and Gilmore appealed.

                                       DISCUSSION

                                    I. Legal Principles

A. Standards Governing Dismissal

       A community college may dismiss a regular or academic employee for one of

several reasons, including "[e]vident unfitness for service" and "[p]ersistent violation of,

or refusal to obey, the school laws of the state or reasonable regulations prescribed for the

government of the community colleges by the . . . governing board of the community

college district employing him or her." (§ 87732, subds. (d), (f).) It may also suspend

and dismiss an employee for "willful refusal to perform regular assignments without

reasonable cause." (§ 87735.)7 The ALJ determines whether there is cause for dismissal

and the "precise penalty to be imposed." (§ 87680.)

B. Review by the Trial Court

       "Section 1094.5 of the Code of Civil Procedure governs judicial review by

administrative mandate of any final decision or order rendered by an administrative

7     For ease of reference, we collectively refer to the latter two factors, where
appropriate, as "willful and persistent refusal."

                                             12
agency. . . . If the administrative decision substantially affects a fundamental vested

right, the trial court must exercise its independent judgment on the evidence.

[Citations.]' " (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.)

Gilmore had a fundamental vested right in her employment, requiring independent

judgment review. (See Spanner v. Rancho Santiago Community College Dist. (2004) 119

Cal.App.4th 584, 587, 591 (Spanner) [long-term classified employee had a "fundamental,

vested right in his permanent employment"]; San Dieguito Union High School Dist. v.

Commission On Professional Competence (1985) 174 Cal.App.3d 1176, 1190

[fundamental right at issue was a teacher's right to "practice her profession and earn her

livelihood"]; see also § 87682 ["The court, on review, shall exercise its independent

judgment on the evidence."].)

       The trial court "weigh[s] the evidence, resolving on its own any conflicts," and is

"free to make its own determination of the credibility of the witnesses. . . ." (Pittsburg

Unified School District v. Commission on Professional Competence (1983) 146

Cal.App.3d 964, 976-977.) However, "[i]n exercising its independent judgment, a trial

court must afford a strong presumption of correctness concerning the administrative

findings, and the party challenging the administrative decision bears the burden of

convincing the court that the administrative findings are contrary to the weight of the

evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).)

       "Review of the penalty determination, however, traditionally differs from the

review of the evidence and factual findings. The superior court upholds the penalty

determination of the agency or arbitrator, unless there has been a manifest abuse of

                                             13
discretion." (West Valley-Mission Community College Dist. v. Concepcion (1993) 16

Cal.App.4th 1766, 1778-1779.)

C. Review on Appeal

       " 'After the superior court makes an independent judgment upon the record of an

administrative proceeding, [the] scope of review on appeal is limited.' [Citation.] We

must sustain the trial court's findings if they are supported by substantial evidence.' "

(San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194

Cal.App.4th 1454, 1461.) "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.' " (Do v. Regents of the University

of California (2013) 216 Cal.App.4th 1474, 1492 (Do).)

       We "will not disturb the penalty imposed ' "unless it is shown to have been a

manifest abuse of discretion." [Citation.]' " (Spanner, supra, 119 Cal.App.4th at p. 591;

see West Valley-Mission Community College Dist., supra, 16 Cal.App.4th at p. 1779

["The appellate court uses the same standard as the superior court, reviewing the

arbitrator's penalty for manifest abuse of discretion."].)

                                         II. Analysis

A. There Were No Errors in the Trial Court's Review

       Gilmore does not contend she requested a statement of decision from the trial

court or that it provided one. As a result, she has waived the issuance of factual findings

by the trial court. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590; Hall v.

Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496 (Hall) ["Findings of fact

                                              14
and conclusions of law were not requested in the trial court. Under Code of Civil

Procedure section 632 and [former] rule 232[] [current rule 3.1590] of the California

Rules of Court at the superior court level, such factual findings and legal conclusions

were waived."].) All statutory references in this section refer to the Code of Civil

Procedure.

       Section 632 provides that "[i]n superior courts, upon the trial of a question of fact

by the court, written findings of fact and conclusions of law shall not be required,"

although upon the timely request of a party, the court must issue a "a statement of

decision explaining the factual and legal basis for its decision." (§ 632, italics added.)

Section 632 applies in section 1094.5 administrative mandamus proceedings. (See

Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67 (Kazensky); Milligan v.

Hearing Aid Dispensers Examining Com. (1983) 142 Cal.App.3d 1002, 1004, fn. 3.)

       Here, the court correctly identified the independent judgment standard in its

ruling. Further, because there was no statement of decision, we presume the court

exercised its independent judgment. (See Fukuda, supra, 20 Cal.4th at p. 812

["[F]indings by the trial court [having] been waived, . . . '[i]t must be conclusively

presumed on this appeal that the trial court weighed the evidence giving due weight to the

presumption in favor of the board's findings, but nevertheless, exercising its independent

judgment,' " reached its finding].) We also " 'must infer every finding of fact supporting

the judgment so long as it is warranted by the evidence. [Citations.]' " (Bledsoe v. Biggs

Unified School Dist. (2008) 170 Cal.App.4th 127, 134 (Bledsoe); Veguez v. Governing



                                             15
Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406, 421 (Veguez)

[accord].)8

       Gilmore's arguments to the contrary are unpersuasive. First, she contends that an

error in the trial court's description of the ALJ's findings reflects a failure to exercise

independent judgment. Specifically, she notes the court stated the decision was based on

the "second through fourth" grounds, while the ALJ found no evidence to support the

third ground (a physical or mental condition rendering her unfit). However, this appears

to be nothing more than a typographical error, as the court correctly identified the

conduct on which dismissal was based. It does not establish an absence of independent

judgment.

       Next, Gilmore contends that factual findings are necessary for independent review,

but fails to address the absence of a statement of decision. We find that absence

dispositive, for the reasons discussed ante. Nevertheless, we briefly address her position.

The cases on which she relies confirm the trial court must exercise its independent

judgment, not that it must explain the factual findings underlying its determination. (See

Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45 [trial court must "arrive

at" its own independent findings]; Barber v. Long Beach Civil Service Commission

(1996) 45 Cal.App.4th 652, 658-659 [trial court failed to apply independent review where



8      We note the trial court's judgment found substantial evidence to support the ALJ's
decision. Nevertheless, given the court's correct identification of the standard in its ruling
and the absence of a statement of decision (or any argument by Gilmore regarding the
impact, if any, of this finding), we find it does not undermine the presumption the court
exercised its independent judgment.
                                               16
it stated it was unable to reweigh credibility or evidence]; Guymon v. Board of

Accountancy (1976) 55 Cal.App.3d 1010, 1015 [under independent judgment review,

"California fixes responsibility for factual determination at the trial court"]; Yakov v.

Board of Medical Examiners (1968) 68 Cal.2d 67, 69 ["trial court's duty is to undertake

an independent review of the evidence"].) In turn, her effort to distinguish Dare v. Board

of Medical Examiners (1943) 21 Cal.2d 790 on the grounds that formal findings were

required here also is unsuccessful; they were not. (See id. at pp. 798-799 ["If there is no

requirement for formal findings and none are made, findings in favor of the prevailing

party are implied from the determination of the board."]; see also Bechtel v. Board of

Retirement (1980) 102 Cal.App.3d 9, 14 ["Since in this case findings of fact were not

requested and, thus, were waived (Code Civ. Proc., § 632), findings in favor of the

respondent must be implied."]; Bledsoe, supra, 170 Cal.App.4th at p. 134; Veguez, supra,

127 Cal.App.4th at p. 421.)

B. Substantial Evidence Supports the Trial Court's Ruling

       We first address the willful and persistent refusal findings and then turn to

unfitness for service.

       1. Willful and Persistent Refusal

              a. OFA Program

       The ALJ found Gilmore failed to update the OFA program. It noted she argued

she "adequately completed the task," but the evidence did not reflect such. It further

observed she did not update the program in a "professional manner," including failing to



                                              17
provide written recommendations. It concluded this conduct established both willful and

persistent refusal and supported dismissal on those grounds.

       Substantial evidence supports these findings. First, although it appears the parties

direct us to no cases interpreting the meaning of "willful refusal to perform regular

assignments without reasonable cause" under section 87735, case law from related

settings reflects that declining to obey an employer's directions, without reason, is

sufficient to establish willful refusal. (See, e.g., Wilbur v. Office of City Clerk (1956) 143

Cal.App.2d 636, 642 [observing an employee who "did not attribute his refusals to

illness" and made "no showing before the hearing examiner of willingness to comply

with the reasonable orders of his superiors," demonstrated "wilful refusal to obey the

reasonable orders of an employer"].) While Gilmore testified about the efforts she took

to update OFA and made some attempt to explain her actions (indicating, for example,

that no one requested a written report), the record reflects she failed to update the

program to the District's satisfaction—even after Smith advised her that her work was

inadequate. This evidence supports a finding of willful refusal. (§ 87735.)

       Second, the evidence reflects Gilmore's conduct establishes a "[p]ersistent

violation of, or refusal to obey" the District's rules. (§ 87732, subd. (f).) "The refusal of

a teacher to accept an assignment which the school authorities have the power to make

constitutes a violation of school laws. . . ." (Board of Education v. Swan (1953) 41

Cal.2d 546, 551, disapproved on other grounds by Bekiaris v. Board of Education (1972)

6 Cal.3d 575, 587, fn.7.) Continuing or repeated refusal, as opposed to isolated behavior,

is sufficient to establish persistent conduct. (Governing Board of the Oakdale Union

                                              18
School Dist. v. Seaman (1972) 28 Cal.App.3d 77, 82 [persistent "has been interpreted to

mean 'continuing or constant' "]; compare, e.g., San Dieguito Union High School Dist. v.

Commission on Professional Competence (1982) 135 Cal.App.3d 278, 287 ["Without

question a persistent refusal to prepare lesson plans for substitute teachers . . . might be

sufficient to constitute 'persistent violation . . . of school rules' "]; Governing Bd. of Ripon

Unified School Dist. v. Commission on Professional Competence (2009) 177 Cal.App.4th

1379, 1388 [finding persistent refusal to obtain a required certification was a lawful

ground for termination]; with Fresno City High School Dist. v. De Caristo (1939) 33

Cal.App.2d 666, 675 ["two absences without leave may not be said to be a persistent

course of conduct"], italics omitted.) Here, although the OFA program update arguably

could be viewed as a single project, the evidence establishes Gilmore's persistent refusal

to complete it over an extended period of time. (§ 87732, subd. (f).)

       Gilmore disagrees the evidence supports these conclusions. First, she contends

her five-year review was approved by the Board of Trustees. This is immaterial. The

record, including Smith's May 2009 letter to Gilmore, shows the results of that review

contributed to the District's decision to revamp the OFA program, reflecting they were

separate processes with different goals.

       Second, she argues she did spend the 2008-2009 academic year updating the

program, was not disciplined at the time for failing to do so, and Maschler's report

recommended only "cosmetic" changes. However, witnesses testified Gilmore had not

completed the OFA update consistent with expectations and Maschler ultimately

produced the desired result. In contending she actually did update the program and

                                              19
criticizing Maschler's report, Gilmore asks us to reject the opinions of these witnesses in

favor of her own. We will not revisit credibility determinations. (Do, supra, 216

Cal.App.4th at p. 1492.) As for discipline, Hottois testified Gilmore was verbally

counseled and he believed the counseling would have been by Smith. Smith's May 2009

letter also alerted her that her work was inadequate.

       Third, she claims the OFA issue was not in the statement of charges, implying (but

not stating) this was not a valid basis for dismissal. As an initial matter, the October 27

letter does include the OFA update, but in the history of prior discipline, rather than the

"reasons" section (and with the parenthetical "We discussed making this a charge.").9

More importantly, Gilmore fails to articulate her challenge or identify legal authority to

support it. We find she has waived it. (See People v. Stanley (1995) 10 Cal.4th 764, 793

(Stanley) [observing it is not the reviewing court's role to "construct a theory" for

appellant: "[E]very brief should contain a legal argument with citation of authorities on

the points made. If none is furnished on a particular point, the court may treat it as

waived. . . ."].) The situation also does not raise any fairness concerns, generally. The

October 27 letter identified the OFA update as an issue and Gilmore was able to present

evidence and argument on the matter. (See, e.g., Stearns v. Fair Employment Practice

Com. (1971) 6 Cal.3d 205, 213 ["So long as the respondent is informed of the substance

9      Gilmore claims Hottois testified the District was not seeking to terminate her
based on the OFA update and it was not in the statement of charges. His actual testimony
is more equivocal. When asked by Gilmore's counsel to explain the parenthetical, he
answered "I don't—I really don't recall where that came from." Only after Gilmore's
counsel responded with "Okay. Can we assume that this is not a charge then?" did
Hottois answer "Yes."

                                             20
of the charge and afforded the basic, appropriate elements of procedural due process, he

cannot complain of a variance between administrative pleadings and proof"; observing

respondent had "ample time to prepare a defense" on the matter at issue and "did in fact

present evidence."].)10

       Finally, Gilmore states she would not have appealed if the court had addressed the

OFA update in its order. In the absence of a statement of decision, we presume the trial

court both considered and rejected her position on this issue. (Code Civ. Proc., § 632;

Cal. Rules of Court, rule 3.1590; Fukuda, supra, 20 Cal.4th at p. 812.) In turn, we could

view her statement as conceding the OFA update supports dismissal. Regardless, her

contentions are meritless, for the reasons discussed ante.




10     But see Brooks v. State Personnel Bd. (1990) 222 Cal.App.3d 1068, 1074-1075
(finding Stearns inapposite to whether a university could amend a notice of dismissal
under the Ed. Code).

                                            21
                b. Tardiness and Absences

         The ALJ found Gilmore was "absent from and tardy to meetings and classes

throughout the time at issue," noting Smith's memoranda to Gilmore, Attaway's records,

and the testimony of La Vigne, Gomez, Attaway, and Walters. It acknowledged she

contested these accounts, but found the other witnesses more credible. It also found

unpersuasive her contention the District failed to inform her that tardiness was a problem,

finding she should have been aware it would not permit this conduct on a regular basis.

The ALJ concluded that although the individual instances of tardiness appeared to be de

minimis, the conduct "taken as a whole" supported dismissal.

         Substantial evidence supports these findings. Witnesses testified that Gilmore's

job duties required her to be in class on time and to attend required meetings. Gilmore

does not dispute these requirements; indeed, she acknowledged at the hearing that

"fail[ure] to arrive on time . . . to begin [her] class" would be a "violation of [her]

responsibilities to the college and to [her] students." She also acknowledges her tardiness

(simply contesting the extent of this conduct, as we discuss post) and makes no attempt in

her briefing to justify her behavior. Although the District does direct us to some of her

excuses (e.g., sheep on the road), we find them insufficient to establish reasonable

grounds for tardiness. There is ample evidence to support willful refusal under section

87735.

         As for persistent refusal, the evidence likewise reflects Gilmore repeatedly

violated tardiness and attendance rules, even after she was counseled. (§ 87732, subd.

(f); see Blake v. Commission on Professional Competence (1989) 212 Cal.App.3d 513,

                                              22
515, 518 [affirming denial of writ petition by teacher following her dismissal for

persistent refusal to follow regulations (among other issues), arising from conduct

including chronic tardiness]; Board of Education v. Mathews (1957) 149 Cal.App.2d 265,

272 [affirming dismissal of a teacher who was absent for 10 consecutive days during one

October, continued to be absent without excuse until February, and refused to return to

her duties when ordered to do so]; cf. Drysdale v. Department of Human Resources

Development (1978) 77 Cal.App.3d 345, 356-357 ["recurring . . . tardiness after repeated

admonition" held to be willful misconduct warranting denial of unemployment benefits].)

       Gilmore admits she was tardy at times, but questions the evidence establishing the

frequency of this conduct and contends the District failed to give her sufficient

opportunity to correct the behavior. Neither argument succeeds.

       First, Gilmore's challenges to the evidence (such as questioning Attaway's

completion of her chart in "ten minutes" and citing a statement by Gomez that Gilmore

was on time to class) go to witness credibility. We will not reweigh credibility (Do,

supra, 216 Cal.App.4th at p. 1492), but do note that conflicting evidence, even by the

same witness, does not preclude a finding of substantial evidence. (People v. White

(2014) 230 Cal.App.4th 305, 319, fn. 14 ["[U]nder the principles governing review for

the existence of substantial evidence, the testimony of a witness is ordinarily sufficient to

uphold a judgment 'even if it is contradicted by other evidence, inconsistent or false as to

other portions. [Citations.]' "]; see also Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d

51, 67 ["It is well settled that the trier of fact may accept part of the testimony of a

witness and reject another part even though the latter contradicts the part accepted."].)

                                              23
       Second, the record reflects the District did provide Gilmore with opportunities to

correct her behavior, including the September 2009 and January 2010 memoranda, and

she did not improve. Her claim that she was not counseled on tardiness to class until

January 2010 lacks force, as she continued to be tardy throughout Spring 2010. Likewise

unpersuasive is her complaint that no one met with her; she identifies no District policy

or legal authority that discipline must be in person. Regardless, she should have been

aware regular tardiness was not acceptable prior to January 2010 (notwithstanding what

she characterizes as "lax enforcement") and certainly after that time.

              c. Grading

       The ALJ found Gilmore had La Vigne grade student work and repeatedly asked

Gomez to grade, even after Gomez indicated she was not permitted to do so. The ALJ

observed that in each case Gilmore called grading "proofreading," but never adequately

defined what she meant by the term. It also found her conduct violated section 88244,

subdivision (a), which provides that aides' duties "shall not include assignment of grades

to students." It concluded that Gilmore's "insistence that her aides grade her students'

work" constituted willful and persistent refusal supporting termination.

       Substantial evidence supports these findings. Attendees at the March 2010

meeting regarding Gomez's duties agreed Walters told Gilmore that Gomez could not

grade (but rather, that Gilmore had to sit next to Gomez and indicate the answers) and

that Gilmore acknowledged she understood. Although Gilmore's recollection differed,

the ALJ and trial court were entitled to credit the other witnesses. Moreover, there is no

question that by Walters's April 2010 e-mail, Gilmore was aware of his expectations; at

                                             24
that point, she simply deemed them not feasible and declined to comply. Even setting

aside Gilmore's grading practices prior to March 2010, her refusal to follow Walters's

directions after that point is sufficient to constitute willful refusal. (§ 87735.)

       Witnesses likewise testified that having aides evaluate students was a violation of

both District policy and section 88244, supporting the finding that Gilmore's conduct also

constituted persistent refusal to follow those guidelines. (§ 87732, subd. (f); see also

§ 88244; Saraceno v. Foothill-De Anza Community College Dist. (1982) 127 Cal.App.3d

850, 860 [observing that under the Ed. Code, the certificated instructor decides which

tasks require certification, and that "[t]he only express statutory limitation upon that

determination is that the instructional aide shall not assign grades to students . . . ."].)

       Gilmore contends her grading practices cannot support dismissal because the

District purportedly acquiesced in her conduct for over a decade and she modified her

behavior after receiving a directive from the District. We disagree. First, even if the

District only recently clarified its expectations regarding grading, that does not justify her

failure to comply with Walters's directions once he did provide that clarification. We

also find unpersuasive her claim that the District had acquiesced because her conduct was

consistent with section 88244 and the job duties of aides. Although she claims section

88244 "prohibits an instructional aide from issuing final class grades to students," it

actually states that an aide's duties "shall not include assignment of grades to students,"

with no limitation to final grades. Gilmore also identifies no authority to support her

interpretation (which Hottois disagreed with) and witnesses testified her conduct violated

District standards, regardless. As for job duties, she cites a job description with entries

                                               25
including "Collect daily assignments—check for completeness" and "Assist slow learners

- individually or in small groups." Neither these entries, nor anything else in the

description, suggest it is appropriate to have aides evaluate student work. Second,

Gilmore's own testimony establishes she did not change her behavior and, to the contrary,

attempted to follow Walters's directions only once.11

       2. Unfitness for Service

       The ALJ also found Gilmore's conduct reflected unfitness for service under

section 87732, subdivision (d), pursuant to the standards established in Morrison v. State

Board of Education (1969) 1 Cal.3d 214 (Morrison) and Woodland Joint Unified School

District v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429

(Woodland).

       First, the Morrison factors "must be analyzed to determine, as a threshold matter,

whether the cited conduct indicates unfitness for service." (Woodland, supra, 2

Cal.App.4th at p. 1445.) Those factors are:

       "[T]he likelihood that the conduct may have adversely affected students or
       fellow teachers, the degree of such adversity anticipated, the proximity or
       remoteness in time of the conduct, the type of teaching certificate held by
       the party involved, the extenuating or aggravating circumstances, if any,
       surrounding the conduct, the praiseworthiness or blameworthiness of the

11     Gilmore contends that if there was insufficient basis for the willful refusal charge,
she would be entitled to back pay, relying on Von Durjais v. Board of Trustees (1978) 83
Cal.App.3d 681 and West Valley-Mission College, supra, 16 Cal.App.4th at p. 1780.
Because there is substantial evidence to establish willful refusal, neither case supports her
position. (See Von Durjais, at p. 687 [dismissed employee was entitled to back pay
because she was cleared of charges supporting suspension without pay]; West Valley-
Mission College, at pp. 1780-1781 [distinguishing Von Durjois because employee had
engaged in conduct that could "support a suspension without pay" under § 87735].)

                                              26
       motives resulting in the conduct, the likelihood of the recurrence of the
       questioned conduct, and the extent to which disciplinary action may inflict
       an adverse impact or chilling effect upon the constitutional rights of the
       teacher involved or other teachers." (Morrison, supra, 1 Cal.3d at p. 229.)

       The ALJ found the Morrison factors reflected unfitness for service. It identified

adverse effects of Gilmore's conduct (noting the harm to students who wished to take

OFA courses and to the teachers retained to complete her grading) and that the degree of

this adversity weighed against her.12 It found the conduct was not remote. It noted

extenuating circumstances, observing Gilmore was a long-term educator with a good

reputation. With respect to motives, it found no basis for praiseworthiness and that the

responsibility fell "squarely" with her. It viewed the likelihood of recurrence as great,

given her failure to accept that responsibility and apparent belief she did nothing wrong.

Finally, it found dismissal would not adversely impact or have a chilling effect on her or

other teachers.

       We find substantial evidence supports these findings and Gilmore does not contest

most of them. (Ordorica v. Workers' Comp. Appeals Bd. (2001) 87 Cal.App.4th 1037,

1046 [we accept as true "factual findings which are undisputed . . . ."].) She does contend

the ALJ failed to consider her disability as an extenuating factor. However, the record

reflects the ALJ was aware of her disability, as it noted the District provided reasonable

accommodations (use of an aide and afternoon class times) and it found no evidence the

District's actions were due to the disability. More importantly, Gilmore fails to explain


12     The record reflects other adverse effects as well, including the students' loss of
teaching time.

                                             27
how her disability would have prevented her from following the particular District orders

at issue.13

       The next step "is to determine whether the 'unfitness' is 'evident.' " (Woodland,

supra, 2 Cal.App.4th at p. 1445.) " '[E]vident unfitness' . . . means 'clearly not fit, not

adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or

inadequacies' [and] connotes a fixed character trait, presumably not remediable merely on

receipt of notice that one's conduct fails to meet the expectations of the employing school

district." (Id., at p. 1444.) The ALJ determined Gilmore's actions constituted "events

that demonstrated [her] evident unfitness for service." It found she was aware of her

obligations, failed to fulfill them, and refused to acknowledge those deficiencies,

specifically criticizing her attempts to justify her conduct as lacking credibility and

evidentiary support. It also rejected her contention the District failed to provide notice

and thus limited her ability to cure those issues, finding she could be "deemed to have

understood" they were unacceptable. The ALJ concluded her refusal to accept

responsibility showed she did "not convincingly or genuinely admit that she could change




13      We note Gilmore does not address Morrison until her reply brief and we arguably
could reject her extenuating circumstances argument on that ground alone. (Tilton v.
Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 864, fn. 12 (Tilton) ["[T]he issue
was waived as to this court because it was noted only in appellants' reply brief, and not in
their opening brief."].) Nevertheless, because she does discuss disability as an
extenuating circumstance in her opening brief, albeit without reference to Morrison, we
elect to reject her argument on the merits. We do deem waived her argument on reply
that the District's alleged financial motives must be considered as part of the Morrison
analysis (but separately address her other financial arguments, post). (Ibid.)

                                              28
and improve her conduct," reflecting a fixed, irremediable character trait and permitting

the finding she was evidently unfit for service.

       The record supports these findings as well. Gilmore's unwillingness to take

responsibility is reflected in the documentary evidence, her testimony, and the testimony

of other witnesses—not to mention in her appellate briefing, where she maintains she did

update the OFA program, was not tardy as often as claimed, and had compliant grading

practices. Gilmore already received notice of these issues and did not correct them; there

is nothing in the record to suggest she is capable of doing so. (See Woodland, supra, 2

Cal.App.4th at pp. 1444, 1454; see also Blair v. State Bar (1989) 49 Cal.3d 762, 781-782

[attorney's "assertion that no discipline should be imposed shows that he does not

recognize his problems and that he may not correct them."].)

       Gilmore disagrees she was unfit for service, contending she did not receive

"written notice of her deficiencies" until September 2009 and her paid leave at the outset

of the 2010-2011 academic year left her with "no opportunity to show that she could

correct any perceived faults." However, Gilmore contends she did update OFA, so it is

unclear how having more time for that project could have impacted her results. As for

her tardiness and grading, Gilmore continued the practices at issue during Spring 2010,

after receiving guidance on the District's expectations and before her leave commenced in

Fall 2010.

C. The Record Does Not Support Gilmore's Financial Motives Argument

       Gilmore contends the District actually sought to dismiss her for financial reasons,

including a desire to eliminate the OFA program. The ALJ rejected this claim, finding

                                             29
her conduct supported dismissal (as discussed ante) and the evidence did not establish the

District terminated her to eliminate the OFA program. We agree.

       First, Gilmore identifies evidence that she contends reflects financial motives,

including: (1) the OFA program operating at a loss, her salary comprising the bulk of its

expenses (and being at the top of the pay scale), and the program purportedly being able

to earn money if she were replaced with a new employee; (2) the cost of maintaining her

Mac computers; and (3) references in Maschler's report to financial issues with OFA.14

Most of these facts are uncontroversial, but they also do not establish any motive to

eliminate OFA or Gilmore, particularly given the District's expenditure of time and

resources to attempt to revive OFA. Gilmore also fails to identify any evidence the

District considered replacing her with a lower-paid employee. In addition, Gilmore

claims the District had to save money due to "gross mismanagement of funds." However,

she relies solely on a November 2011 letter from the Accrediting Commission for

Community and Junior Colleges, Western Association of Schools and Colleges, stating it

"received information about the financial condition of the institution that gives it

concerns about the stability of the institution." The letter makes no suggestion of fund

mismanagement, and, in any event, postdates the relevant time period.15



14      Gilmore's claim about OFA running at a profit with a new employee may not
account for benefits. Gilmore's counsel asked Hottois whether OFA could make money
if "salary and benefits" were reduced to $46,000, but that figure appears to represent only
salary under the CTA agreement.

15     In her reply brief, Gilmore also contends the OFA suspension and purported lack
of direction or resources to update the program or its equipment evidence financial
                                             30
       Second, Gilmore contends the District "attempted to tie" OFA's revenue to her (by

arguing her failure to keep the program current caused low enrollment) and ignored both

a recent increase in OFA enrollment and declining enrollments in OFA community

college courses throughout the region. It is unclear what District attempt she is referring

to. In any event, the OFA issue here was her failure to complete the 2008-2009 update,

not revenue or enrollment levels generally.

       Next, and reaching the crux of her argument, Gilmore argues financial

considerations can only justify terminating a permanent employee in the context of a

reduction in force (RIF) (which would permit her to displace a more junior employee)

and that by terminating her, the District was able to eliminate both the program and her

high compensation. However, Gilmore provides no evidence to support her theory.

Rather, she simply argues that instead of using Maschler's report to update the OFA

program, the District "shut [it] down indefinitely" (although the cited testimony just

reflects there was no OFA program during 2010-2011 or 2011-2012), that Hottois was

aware of RIF procedures but elected not to use them, and that "an economically driven

lay off . . . would have been more appropriate[] under the circumstances." In short, she

asks us to draw inferences against the judgment based on her speculation, which we

cannot do. (See Do, supra, 216 Cal.App.4th at p. 1492.) In the absence of such

evidence, her reliance on authorities regarding RIF's likewise is misplaced. (See




motives. As noted ante, we do not address arguments raised for the first time on reply.
(Tilton, supra, 142 Cal.App.4th at p. 864, fn. 12.)

                                              31
§ 87743; Cousins v. Weaverville Elementary School Dist. (1994) 24 Cal.App.4th 1846,

1854.)

         Finally, she contends the ALJ "failed to incorporate compelling evidence . . . of a

clear financial motive" and claims, again, she would not have appealed the issue if the

court had reviewed and rejected her theory of the case. The ALJ acknowledged and

rejected her argument. As for the trial court, there is no statement of decision, so, again,

we presume it also reviewed and rejected her position. (Code Civ. Proc., § 632; Cal.

Rules of Court, rule 3.1590; Fukuda, supra, 20 Cal.4th at p. 812.).16

D. The ALJ Did Not Abuse Its Discretion in Dismissing Gilmore

         Gilmore contends termination was not warranted, citing her long career, the

District's alleged failure to provide notice and a chance to correct her conduct, that

various charges were dismissed by the ALJ, and her disability. She also argues she was

entitled to have these factors considered by the ALJ and court and to obtain findings on

"whether these circumstances might justify something less onerous than termination."

We find no abuse of discretion. (Spanner, supra, 119 Cal.App.4th at p. 591.)




16      Gilmore also implies the District may have been motivated by discrimination,
suggesting that "while this case is not a straightforward disability discrimination case, it
nonetheless contains elements of disability discrimination that must be addressed." We
disagree. She directs us to nothing in the record establishing she sought to prove
discrimination (although we do note the ALJ found no discrimination, disability or
otherwise). Gilmore cannot raise a discrimination claim for the first time on appeal.
(Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1399 [" '[I]ssues raised
for the first time on appeal which were not litigated in the trial court are waived.
[Citations.]' "].)

                                              32
       First, Gilmore identifies no authority to suggest the factors she identifies should

mitigate the penalty here. The only cases she does cite are disability discrimination cases

and she does not explain how or why they should warrant a penalty less than dismissal.

(See Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1002-1003, 1013;

Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 967-968.)17

       Second, there is no evidence the ALJ failed to consider any relevant extenuating

circumstance. It explained a "less severe penalty was fully considered," but that

dismissal was appropriate based on her failure to accept responsibility and the "blatant

nature of her deficient conduct." It also expressly considered her long career and good

reputation. As for notice and disability, those would not be mitigating factors, for the

reasons discussed ante. The ALJ presumably was aware it did not uphold all of the

charges at issue, but Gilmore fails to explain why this should warrant a reduced

penalty—particularly as multiple charges supporting dismissal were substantiated.

       Finally, to the extent she seeks trial court findings here, her argument is

particularly misguided. We directly review the ALJ's decision for abuse of discretion.

(Spanner, supra, 119 Cal.App.4th at p. 591.) Gilmore did not request a statement of

decision, meaning no trial court findings were required in general, but even if she had,

those findings would not be dispositive to our analysis.



17     Gilmore does reference an employer's continuing obligation to accommodate
disability and the settlement agreement memorializing her aide arrangement. As
discussed ante, this is not a disability discrimination case, so these matters are not at
issue.

                                              33
                                 DISPOSITION

     The judgment is affirmed. Respondents are awarded costs on appeal.


                                                               BENKE, Acting P. J.

WE CONCUR:


NARES, J.


O'ROURKE, J.




                                        34
