Filed 5/21/15 Kinner v. Governing Bd. Orange County School Dist. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


ROSE KINNER,

     Appellant,                                                        G049676

         v.                                                            (Super. Ct. No. 30-2012-00600599)

GOVERNING BOARD OF THE                                                 OPINION
ORANGE UNIFIED SCHOOL
DISTRICT,

     Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Sheila B.
Fell, Judge. Affirmed.
                   Broedlow Lewis, Jeffrey Lewis, and Kelly Broedlaw Dunagan for
Appellant.
                   Parker & Covert, Jonathan S. Mott and Steven Montanez for Respondent.
                                             *               *               *
              After the Board of Education (the Board) of the Orange Unified School
District (the District) terminated Rose Kinner’s employment, Kinner petitioned the
Orange County Superior Court for a writ of mandate ordering the Board to reinstate her
to her former job. The court denied Kinner’s petition and entered judgment in the
Board’s favor. On appeal from the judgment, Kinner contends the District used a biased
investigator, failed to notify her of a disciplinary interview, and failed to ensure the
presence of two adverse witnesses at her administrative appeal hearing. She concludes
the hearing was unfair and that the District violated her due process rights. We disagree
and affirm the judgment.


                                           FACTS


              In July 2008, the District transferred Kinner, then a 12-year employee, to a
position at Parkside Preschool and Kindergarten (Parkside). Kinner complained to Jamie
Brown (then the District’s head of classified employee discipline) that the Parkside job
was an office manager position, yet the District was classifying and paying her as a senior
secretary. In March 2010, Kinner requested in writing that the District change her job
classification to office manager. Brown denied Kinner’s request.
              On November 28, 2011, Rachelle Dale, the District’s coordinator of special
education, issued Kinner a letter of reprimand. Inter alia, the letter stated the following.
In October 2011, a District employee had received a phone call from Maria Huerta, the
Spanish-speaking parent of a Parkside student. Huerta reported she was having trouble
communicating with Parkside because, when she phoned Parkside, she was usually
treated rudely and often was not connected to a Spanish translator. Huerta also
complained that when she went into the Parkside office, Kinner was rude to her and often
would not respond when Huerta asked for assistance. On November 9, 2011, District
employee Ambar Matzuy had phoned Parkside on Huerta’s behalf, with Huerta on the

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line, to assist Huerta in communicating. When Kinner answered the phone, Matzuy said,
“‘Rose, good afternoon, I have Eduardo’s mom on the line with me and she wants to
ask,’” at which point Kinner interrupted and said “in an angry tone, ‘She needs to learn to
speak English, she calls here every day.’” Matzuy responded, “‘We have lots of parents
in the District that do not speak the language; I am just trying to help her,’” then hung up.
Huerta alleged she received a phone call later that day and recognized Kinner’s voice
telling her she was a “‘f . . . ing Mexican’” and “‘should go back to Mexico.’”
                 In response to the letter of reprimand, Kinner sent the District a letter dated
December 1, 2011, contending she did not know Huerta was on the line during the
Matzuy phone conversation and that Kinner’s exact words to Matzuy had been: “She
needs to learn to speak English. She calls here every day, asking for a Spanish speaker.
When one is not available, she gets mad and she hangs up on me and other personnel
within our office.” Kinner denied making the alleged phone call to Huerta. Kinner
alleged Huerta was well known for making complaints to the District about many matters
and against many employees. Kinner claimed the District had not followed its standard
policy of forwarding complaints to an “employee’s direct supervisor for them to
investigate and respond,” and had instead accepted Huerta’s allegations as true without
investigating.
                 In December 2011, the District transferred Kinner to a senior secretary
position at the District office. Kinner was upset about the transfer, believing she would
now have “to work directly for [her] accusers.”
                 On January 2, 2012, Kinner e-mailed Ed Kissee, the District’s assistant
superintendent of human resources, to request a transfer.




                                                 3
               On January 9, 2012, District employee Peggy Peake informed Kissee of the
following. On January 5, 2012, Peake had called Kinner to wish her a happy birthday.
During that conversation, Kinner told Peake she intended to meet with Kissee and then
falsely allege he had touched her inappropriately. Peake said she disapproved of
Kinner’s plan. Kinner replied, “I know it’s wrong but I’m going to do it anyway. I’m
going to treat the District the way the District is treating me.” Kinner said she was
working on a “project” that would be completed in six months. The project would be
“‘mind-blowing, and an embarrassment to a number of employees and [the District] in
general,’” and would be posted on YouTube.
               Peake told Kissee, “I’m not sure how much of this was merely venting as
opposed to describing real plans.”
               About 10 minutes before Kissee had met with Peake, he had received an e-
mail from Kinner asking him, “[W]hat time should I meet in your office with my
representative/witness?”, concerning her request for a transfer out of the special
education department.
               Kissee and the District superintendent decided to ask Brown to investigate
Peake’s report. They chose Brown because he had been the District’s executive director
of human resources for many years, had retired at the end of 2010, and had the expertise
to investigate Peake’s allegations, and because Kissee was the District’s only currently
employed human resources professional and could not investigate the matter due to his
involvement.
               On January 17, 2012, Brown interviewed Kinner. Also present were
Kinner’s union representative (Brady Bailo) and Marcia Schoger, administrative director
of special education, who served as the note-taker for the meeting. Kinner admitted
making the alleged statements to Peake: “I said that’s what you did to me and that’s what
I should do to you.” Schoger placed Kinner on administrative leave with pay.



                                             4
                On January 31, 2012, the District notified Kinner that it recommended her
employment be terminated. The statement of charges included a notice pursuant to Skelly
v. State Personnel Board (1975) 15 Ca1.3d 194 (Skelly), advising Kinner of her
opportunity to appear (along with a representative if desired) before a hearing officer in
order to refute the charges, present her version of events, and explain why she should not
be dismissed.
                On February 24, 2012, Kinner and her representative, Bailo, appeared at the
Skelly due process hearing. On March 6, 2012, the Skelly hearing officer notified Kinner
and Bailo (1) that he endorsed the recommended disciplinary action of terminating
Kinner’s employment with the District and (2) that Kinner could appeal the decision to
the Board.
                On March 13, 2012, the District superintendent notified Kinner that the
District was suspending her without pay during the pendency of her appeal. On March
22, 2012, Kinner and Bailo appeared at a Skelly hearing to appeal the suspension without
pay. On March 23, 2012, the Skelly hearing officer notified Kinner of his decision to
uphold the suspension without pay.
                Kinner appealed from the District’s proposed notice to terminate her
employment. On April 19, 2012, Kinner and Bailo appeared at an evidentiary hearing to
appeal the District’s decision to terminate Kinner’s employment (the administrative
appeal hearing). Inter alia, Kinner testified she never intended specifically to bring harm
to Kissee and other District staff and that she likes to vent. The hearing officer (Attorney
Karen T. Meyers) issued her proposed decision on May 10, 2012. Based on the evidence
and an assessment of the credibility of the witnesses at the hearing, the hearing officer
recommended that the Board terminate Kinner’s employment.




                                              5
              On July 26, 2012, at Kinner’s request, she and her attorney addressed the
Board in open session. In closed session, the Board approved the termination of Kinner’s
employment.
              Kinner petitioned the Orange County Superior Court for a writ of mandate
or administrative mandamus requiring the Board to reinstate her to her former job and to
classify it as an office manager position.
              In a detailed statement of decision, the court denied Kinner’s writ petition
and granted judgment in the Board’s favor. The court exercised its independent judgment
and concluded the Board “proceeded in the manner required by law.”


                                       DISCUSSION


              Kinner contends the administrative trial was unfair and that she was denied
due process because (1) the District’s investigator, Brown, was biased against her, (2)
Brown surprised her and gave her no forewarning of the subject matter of his interview of
her, and (3) at the administrative appeal hearing, the District denied her the right to
confront and cross-examine Huerta and Dale, “yet at the same time the District heavily
relied on statements attributed to Huerta and Dale about Kinner.”
              Generally, administrative adjudications (i.e., quasi-judicial determinations)
are reviewable by administrative mandamus under Code of Civil Procedure
               1
section 1094.5, whereas quasi-legislative determinations are reviewable by ordinary
mandamus. (9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 148,
p. 1281.) Under section 1094.5, a reviewing court inquires “whether the respondent has
proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion.” (Id., subd. (b).) “Abuse of
1
              All statutory references are to the Code of Civil Procedure.


                                              6
discretion is established if the respondent has not proceeded in the manner required by
law, the order or decision is not supported by the findings, or the findings are not
supported by the evidence.” (Ibid.)
              When an administrative adjudicatory decision substantially affects a
fundamental vested right, the trial court exercises its independent judgment in reviewing
the evidence in the administrative record; on appeal, the reviewing court considers only
whether the trial court’s findings are supported by substantial evidence. (Fukuda v. City
of Angels (1999) 20 Cal.4th 805, 816-817, 823–824; Strumsky v. San Diego County
Employees Retirement Assn. (1974) 11 Cal.3d 28, 32 [trial court exercising its
independent judgment on the evidence must find an abuse of discretion if administrative
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findings not supported by “weight of the evidence”].) Although the “foundational
factual findings must be sustained if supported by substantial evidence . . . , the ultimate
determination of whether the administrative proceedings were fundamentally fair is a
question of law to be decided on appeal.” (Rosenblit v. Superior Court (1991) 231
Cal.App.3d 1434, 1443.)


Brown’s Alleged Bias
              Kinner contends Brown had a history of animus toward her. At the
administrative appeal hearing, she testified that, around the time the District transferred
her to Parkside, she met with Brown and told him she was upset about being moved to an
office manager position but paid as a senior secretary. According to Kinner, Brown had
replied, “You know what, Rose? We can do whatever we want to do. If you don’t like it,
you can quit.”


2
              A “protected public employee, has a fundamental and vested right in her
continued permanent employment.” (Civil Service Com. v. Velez (1993) 14 Cal.App.4th
115, 121; see also Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 927
[fundamental vested rights often found in context of public employment].)

                                              7
              Whether Brown was biased against Kinner is a factual issue.
Administrative Hearing Officer Meyers found Kinner’s testimony in general was not
credible. The court upheld Meyers’ determination.
              Substantial evidence supports the court’s finding. In Kinner’s own March
8, 2010 letter to the District, she stated she and Brown had a “lengthy discussion
regarding the [Parkside] position and the changes that were to be made.” The letter
recounts Brown’s statements and shows he offered substantive explanations regarding the
propriety and fairness of Kinner’s transfer. Brown told her Parkside was a program, not a
school, and did not warrant an office manager, and that Parkside’s administrator was a
coordinator, and that coordinators have senior secretaries, not office managers. He told
her that the District would move some classrooms within two years so Kinner would not
                                                       3
be responsible thereafter for the students’ daily needs. Brown said the District could
reassign her wherever it chose so long as she “‘was not working above [her] job
classification.’” This last statement by Brown, as recounted by Kinner in her letter, does
not connote the animus reflected in Kinner’s testimony recounting the same statement in
different, less exact language.
              On appeal, Kinner does not specify any bias exhibited by Brown during his
January 2012 interviews of her and of Peake, or in the content of his investigative report.
              Moreover, in Kinner’s writ petition to the trial court below, she alleged
that, because Brown was biased against her, Meyers’s decision was procured by
“corruption” within the meaning of section 1286.2 (grounds for vacating arbitration
award). On appeal, Kinner has dropped that argument and now contends Brown’s
alleged bias gives the appearance the administrative appeal hearing was unfair, citing
Nightlife Partners, LTD. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.


3
              According to Kinner’s letter, none of Brown’s assurances had been carried
out in the ensuing year and a half.

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              Even exercising our discretion to consider Kinner’s contention raised on
appeal, Nightlife does not support Kinner’s contention. Nightlife held that an
administrative hearing violated the petitioners’ rights to due process because the attorney
who had acted as the respondent city’s advocate for denying the petitioners’ application,
then acted as the legal adviser to the hearing officer at the hearing. (Nightlife Partners
LTD., supra, 108 Cal.App.4th at pp. 85, 94.) Here, Brown was a witness for the District
at the administrative appeal hearing, not an advisor to Meyers.


Notice of Purpose of January 17, 2012 Interview
              On appeal, Kinner contends her rights under NLRB v. J. Weingarten, Inc.
(1975) 420 U.S. 251 (Weingarten) were violated. Under Weingarten, an employee is
entitled under the National Labor Relations Act (29 U.S.C. § 151 et seq.; the Act) to have
his or her union representative present at an investigatory interview which the employee
reasonably believes could result in disciplinary action. (Weingarten, at p. 252; Redwoods
Community College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d
617, 623.)
              Kinner’s representative, Bailo, was present at Brown’s January 17, 2012
interview of her. Nonetheless, she asserts neither she nor Bailo was given prior notice of
the purpose of the meeting and her Weingarten rights were thereby violated.
              This assertion is supported only by her own testimony. At the
administrative appeal hearing, Kinner testified: “[I]t has been brought to my attention
that prior to the January 17th meeting, . . . Brown states that he made . . . Bailo aware of
the contents of the hearing and the fact that it would address allegations that I had
threatened [a District] administrative staff member. . . . Bailo repeatedly told me prior to
that meeting and after in writing and in person that he had no idea why the meeting was
being held, nor what the meeting was about . . . . Obviously, one of them [is] lying. As I
stand here today, either I am suspect of my representation by . . . Bailo or [the District]

                                              9
hasn’t followed the appropriate due process in making [the union] aware of details to be
discussed at the meeting.”
              The court found Brown advised Bailo “appropriately.” It observed that
Bailo represented Kinner at the hearing, but did not himself testify to refute Brown’s
claim he (Brown) had advised Bailo appropriately, nor had Bailo asked Brown any
questions regarding the issue of notice when Bailo cross-examined Brown.
              Substantial evidence supports the court’s finding Brown properly notified
Bailo. Brown’s investigative report states: “I had called Bailo on January 13, 2012, to
inform him of my intent to interview Kinner on January 17, 2012 . . . . I told Bailo that
the District will meet with Kinner to discuss her transfer in accordance with the transfer
provision of the collective bargaining agreement, but that an investigative interview
would take place first. I also informed Bailo that the investigation could lead to
disciplinary action. I told him it had been reported that Kinner had made threats against a
member of the senior administrative staff.” Thus, Kinner’s assertion in her opening brief
that Brown’s reports omit “any mention that Brown had actually notified Kinner’s
                                     4
representative,” is simply untrue.
              As to whether Kinner received advance notice, the court found Kinner
offered insufficient evidence to show the Board failed to inform her of the purpose of the
interview. The court noted Kinner’s testimony was “not even an unequivocal accusation
that the Board failed to advise her of the subject matter of the interview.” But the court
did not address the threshold issue of which party bore the burden of proof to show
Weingarten compliance (or lack thereof).


4
               As further evidence of Brown’s notice to Bailo, the District cites Brown’s
declaration submitted to the trial court in support of the District’s opposition to Kinner’s
writ petition. Brown declared he gave Bailo notice of the purpose of the interview.
Brown’s declaration, however, is not part of the administrative record and may not be
considered, as it does not fall within an exception under section 1094.5, subdivision (e).

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              Weingarten does not expressly require an employer to provide an employee
with advance notice of the purpose of a meeting. But, in order for an employee to know
whether an interview could result in disciplinary action (and to assert the right to have a
representative present), the employee must be notified of the meeting’s purpose. In
Pacific Tel. & Tel. Co. v. NLRB (9th Cir. 1983) 711 F.2d 134, the Ninth Circuit held the
National Labor Relations Board “permissibly construed the Weingarten right to include
the right to be informed prior to the interview of the subject matter of the interview and
the nature of any charge of impropriety it may encompass and the right to a pre-interview
conference with a union representative.” (Id. at p. 136.) “Without such information and
such conference, the ability of the union representative effectively to give the aid and
protection sought by the employee would be seriously diminished.” (Id. at p. 137.) This
rationale is persuasive.
              Nonetheless, we need not decide (1) whether Kinner was entitled to
advance notice of the subject matter of the interview and a pre-interview conference with
her representative, or, (2) assuming she was so entitled, whether the District bore the
burden of showing at the hearing that it complied with those requirements. Even if the
answer to both questions were affirmative, the District’s failure to notify Kinner or to
produce evidence of such notice was harmless beyond all reasonable doubt. (Cramer v.
Tyars (1979) 23 Cal.3d 131, 139.) The District showed it gave advance notice to Bailo,
who, as a union representative, had a duty to properly represent Kinner, including
conveying to her the purpose of the meeting.




                                             11
The Absence of Huerta and Dale as Witnesses at the Hearing
              Kinner contends she was denied due process because the District failed to
produce Huerta (the Spanish-speaking parent) or Dale (the District employee who signed
the letter of reprimand) as witnesses at the arbitration appeal hearing. Prior to the
hearing, Bailo had requested Huerta’s contact information from the District. At the
hearing, Kinner stated she had asked, through Bailo, that both Huerta and Dale be present
at the hearing, but “was told that he could not compel people to testify.”
              Hearing officer Meyers expressly refrained from making any findings
                                    5
supported only by Huerta’s claims. Furthermore, Meyers did not accept the contents of
Dale’s letter of reprimand to Kinner without independent evidentiary support.
              Even though Huerta and Dale did not appear at the hearing, and even
though Meyers based no findings exclusively on their out-of-court statements, Kinner
contends her due process right to confront and cross-examine adverse witnesses was
violated. Kinner’s brief contains no reasoned argument or legal authority on (1) whether
the District, because it submitted evidence containing Huerta’s and Dale’s out-of-court
statements, had a duty to help Kinner locate or produce them as witnesses, or (2) whether
the District could have, or should have, compelled them to testify. Kinner has thereby
waived the issue. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10
Cal.4th 764, 793; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)


Cumulative Impact
              Because the only potential error was harmless, there is no prejudice to
cumulate.


5
              Indeed, Meyers found the evidence was insufficient to establish Kinner was
rude to Huerta when Huerta visited the school office or that Kinner made the alleged
phone call to Huerta. Meyers found Kinner was not aware Huerta was listening during
the phone call between Kinner and Matzuy.

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                                   DISPOSITION


            The judgment is affirmed. The District shall recover its costs on appeal.




                                               IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




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