Kinner v. Governing Bd. Orange County School Dist. CA4/3

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

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

2

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

2

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.

8

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).

10

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.

12

DISPOSITION

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

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

13