Judge Curtis A. Kin, Case Number: 24STCP03383, Date: 2025-01-23 Tentative Ruling

Judge: Curtis A. Kin, Case: 24STCP03383, Date: 2025-01-23 Tentative Ruling

24STCP02299 Luchia Tsegaberhan
The Petition will be granted. A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Case Number: 24STCP03383 Hearing Date: January 23, 2025 Dept: 86

MOTION FOR ORDER TO STAY OPERATION OF FINAL ADMINISTRATIVE DECISION

Date: 1/23/25 (1:30 PM)

Case: Elizabeth C. Orozco Reilly v. Richard Yao et al. (24STCP03383)

TENTATIVE RULING:

Petitioner Elizabeth C. Orozco Reilly’s Motion for Order to Stay Operation of Final Administrative Decision is DENIED.

I. FACTUAL BACKGROUND

On May 20, 2022, petitioner Elizabeth C. Orozco Reilly was appointed as Dean of the School of Education at California State University, Channel Islands (“CSUCI”). (Reilly Decl. ¶ 4 & Ex. 3.) Petitioner’s appointment was governed by the Management Personnel Plan (“MPP”) of the California State University. Under Section 42721, petitioner served as Administrator “at the will and discretion of the campus president.” (Reilly Decl. ¶ 4 & Ex. 3.)

As part of petitioner’s appointment, she was given the option to “retreat to a faculty position with tenure at the rank of Professor in the School of Education at the end of [her] administrative appointment….,” subject to attached terms and conditions. (Reilly Decl. ¶ 4 & Ex. 3.) The option to retreat is contingent on petitioner’s eligibility to retreat to a faculty position. Petitioner is ineligible to retreat to a faculty position under the following circumstances: “(1) a finding has been made that the MPP Employee engaged in significant misconduct or policy violation that resulted in the MPP Employee being non-retained, terminated, or is separated through mutually agreed upon settlement terms; (2) the MPP Employee is currently under investigation for significant misconduct or violation of university policy (the Retreat determination shall be held in abeyance until the completion of the investigation and any appeals – paid administrative leave may be granted during this time period); or (3) the MPP Employee’s retirement benefits have been rescinded under The Public Employees’ Pension Reform Act due to criminal misconduct associated with their official duties.” (Reilly Decl. ¶ 4 & Ex. 3.) “Finding” is defined to include a “final internal report, following any appeals, resulting from an investigation conducted by the university.” (Reilly Decl. ¶ 4 & Ex. 3.) The terms and conditions specify unequivocally that the option to retreat “does not alter the at-will nature of [petitioner’s] appointment as Dean” of the School of Education. (Reilly Decl. ¶ 4 & Ex. 3.)

In her six-month evaluation for the period from 6/1/22 to 12/1/22 and her subsequent one-year evaluation for the period from 7/1/22 to 6/30/23, petitioner received a rating of “Exceeds Expectations” from her direct supervisor. (Reilly Decl. ¶ 5 & Exs. 4a, 4b.)

On August 22, 2024, petitioner was placed on paid administrative leave. (Reilly Decl. ¶ 6 & Ex. 5.) The Notice of Administrative Paid Leave stated that the leave “has been implemented for the purpose of preventing further disruptions on the university campus.” (Reilly Decl. ¶ 6 & Ex. 5.) Petitioner alleges that the nature of the alleged disruptions was never identified or discussed with her. (Reilly Decl. ¶ 7.)

On August 26, 2024, petitioner was informed that she was not being retained as Dean of the School of Education. (Reilly Decl. ¶ 8 & Ex. 6.) On August 27, 2024, petitioner requested reconsideration of her dismissal pursuant to the CSUCI Reconsideration policy and exercised the option to retreat to a faculty position. (Reilly Decl. ¶ 9 & Ex. 7.)

The Reconsideration policy provides for two levels of review. (Reilly Decl. ¶ 3 & Ex. 2.) CSUCI scheduled the initial review with Interim Provost Jessica Lavariega Monforti, Ph.D. (Reilly Decl. ¶ 10 & Ex. 8.) Petitioner objected to Dr. Monforti on the ground that she was involved in the decision not to retain petitioner and could not be impartial. (Reilly Decl. ¶ 11.) Petitioner’s request for a change of reviewer was denied. (Reilly Decl. ¶ 11.)

Prior to the first reconsideration meeting, petitioner was provided with the documents upon which CSUCI relied in terminating her employment. (Reilly Decl. ¶ 13.) One of these documents was a “Petition to Address Elizabeth Orozco Reilly’s Conduct as Dean” sent to CSUCI President Richard Yao by the California State University Employees Union and the California Faculty Association dated May 24, 2024. (Winder Decl. ¶ 2 & Ex. B.) The signatories to the petition requested a meeting with President Yao to “discuss and find remedy” for petitioner’s purported “[i]nability to effectively follow policy, supervise staff, or lead department,” “unprofessional behavior that creates a toxic, dysfunctional work environment,” and “lack of accountability.” (Winder Decl. ¶ 2 & Ex. B.) Petitioner maintains that none of the allegations in the petition were investigated or substantiated and that many of the concerns were resolved prior to her termination. (Reilly Decl. ¶ 15.)

The first reconsideration meeting took place on September 16, 2024. (Reilly Decl. ¶ 12.) Dr. Lavariega Monforti and Dr. MariaElena Plaza, Associate Vice President for Human Resources were present, along with petitioner and her counsel. (Reilly Decl. ¶ 18.) Petitioner contends that she requested but was not provided the procedures and agenda for the first reconsideration meeting. (Reilly Decl. ¶ 17.) Petitioner also contends that Dr. Plaza and Dr. Lavariega Monforti did not ask her any questions, provide further justification for the decision to terminate her employment, or engage in any discussion with her. (Reilly Decl. ¶ 18.)

On September 18, 2024, Dr. Lavariega Monforti denied petitioner’s request for reconsideration, informing petitioner that her “non-retention as Dean of the School of Education is in the best interests of the University and the School.” (Reilly Decl. ¶ 19 & Ex. 10.) Petitioner maintains that she never received information regarding the "overwhelming feedback heard from the campus regarding [her] leadership of SOE" upon which Dr. Lavariega Monforti purportedly relied in her decision. (Reilly Decl. ¶ 20.)

Petitioner requested a second reconsideration meeting. (Reilly Decl. ¶ 21 & Ex. 11.) The second reconsideration meeting took place on September 27, 2024 with President Yao, Dr. Plaza, petitioner, and petitioner’s counsel. (Reilly Decl. ¶ 22.) According to petitioner, President Yao did not engage in any meaningful conversation with her concerning the termination decision or the reconsideration process. (Reilly Decl. ¶ 23.) President Yao purportedly declined to address specific allegations that may have factored into the decision to terminate her appointment as Dean of the School of Education. (Reilly Decl. ¶ 23.)

On October 1, 2024, President Yao upheld the decision to not retain petitioner’s position as Dean of the School of Education. (Reilly Decl. ¶ 24 & Ex. 13.) On the same date, petitioner was informed that CSUCI commenced an investigation with a third-party investigator with respect to petitioner’s request to retreat to a faculty position. (Reilly Decl. ¶ 25.) Petitioner purportedly has not received notice of the charges the university is investigating. (Reilly Decl. ¶ 25.)

II. GOVERNING STANDARDS FOR STAY

Petitioner seeks a stay of the administrative decision dismissing her as Dean of the School of Education at CSUCI.

In the writ petition, petitioner seeks a writ of mandate under CCP § 1094 or, in the alternative, CCP § 1085. (Pet. ¶¶ 51, 52.) It appears that CCP § 1094.5 is not applicable. CCP § 1094.5 is applicable to review the final decision in a proceeding “in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.” (CCP § 1094.5(a).) 5 C.C.R. § 42728 governs reconsideration of personnel decisions concerning Management Personnel Plan employees at California State University campuses. The informal procedures of hearing complaints, as prescribed by the Chancellor or President, “shall be the exclusive administrative remedy available to a Management Personnel Plan employee to address employee complaints or to seek reconsideration of any personnel decision allegedly adverse to the interests of the employee.” (5 C.C.R. § 42728.)

The Reconsideration procedure provides for two reconsideration meetings. However, the procedure does not require evidence to be taken. It only requires the immediate supervisor during the first level of review and the president during the second level of review to discuss the matter with the employee. (Reilly Decl. ¶ 3 & Ex. 2 at 3.) Accordingly, the Court reviews the request to stay the administrative decision based on CCP § 1085.

In a traditional mandamus case, a stay is governed by principles of injunctive relief. (Local Rule 3.231(e).) “[T]he question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal. 4th 528, 554.)

III. ANALYSIS

With respect to petitioner’s probability of prevailing on the merits, petitioner was hired as a Management Personnel Plan employee. (Reilly Decl. ¶ 4 & Ex. 3.) “A Management Personnel Plan employee serves at the will of the campus President or the Chancellor, as appropriate.” (5 C.C.R. § 42723(a).) Managers under 5 C.C.R. § 42723(a) can be dismissed with or without cause. (Butts v. Board of Trustees of California State University (2014) 225 Cal.App.4th 825, 829.) “[A]lthough an employer may terminate an at-will employee for no reason, or any arbitrary or irrational reason, the employer has no power to terminate the employee for a reason contrary to the law or fundamental public policy.” (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 226.)

“In general, when review is sought by means of ordinary mandate the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support….” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 849.) Petitioner argues that respondents “present no evidence to support the termination decision, just the unverified Petition for Meeting, but none of the vague, generalized ‘concerns’ from disgruntled union members expressed therein were ever investigated or confirmed to be true.” (Reply at 6:8-10.)

In connection with the first reconsideration meeting, petitioner’s counsel provided a six-page letter to Dr. Lavariega Monforti explaining why petitioner should be reinstated as Dean of the School of Education. (Reilly Decl. ¶¶ 17, 18 & Ex. 9.) After the first meeting, Dr. Lavariega Monforti sent petitioner and counsel an email denying petitioner’s request for reconsideration. The email stated:

“A few hours in advance of our meeting, we received your letter dated September 16, 2024, that outlined your reconsideration request (attached). In our meeting Ms. Parker outlined that you have been an exemplary dean, expanded programs under your supervision, and were awarded grant funding as Dean of the School of Education. Ms. Parker stated that there were no warnings or corrective actions action, and no investigation discussed with you. Finally, it was stated that the dismissal decision is a breach of contract, that as a tenured faculty member you have a right to a hearing. There was then a request to immediately reinstate benefits and access to CSUCI resources, and then a note that you are open to a settlement conference. During our meeting I stated that the faculty retreat request has not been denied and will be addressed once the reconsideration process is complete.

“After careful consideration of the totality of the issues, including the points that you have made as well as the overwhelming feedback heard from the campus regarding your leadership of SOE, the university concludes your non-retention as Dean of the School of Education is in the best interests of the University and the School. Therefore, your request for reconsideration is denied.”

(Reilly Decl. ¶ 19 & Ex. 10.) From the email, it appears that Dr. Lavariega Monforti considered petitioner’s reasons why she should be reinstated to her position as Dean, weighed those reasons against the feedback heard from the CSUCI campus regarding her leadership of the School of Education, and concluded that petitioner’s non-retention was in the best interest of CSUCI and the School of Education.

Petitioner contends that she did not receive evidence of the “overwhelming feedback.” (Reilly Decl. ¶ 20.) However, petitioner admits to having received other documents relied upon in the decision to terminate her employment, including the “Petition Regarding Dean Elizabeth Orozco Reilly's Mismanagement of the School of Education.” (Reilly Decl. ¶ 13.) That petition outlines allegations from two unions regarding petitioner’s alleged mismanagement of the School of Education. Some of these allegations include: violating the collective bargaining agreement on order of workload assignments; leaving campus for extended travel without providing notice without designating an administrator in charge and leaving staff members without support; disciplining staff or faculty for errors that were not their responsibility; being unresponsive to emails or requests for support; yelling at staff members; and regularly making negative remarking about former and current employees were not present. (Winder Decl. ¶ 3 & Ex. B.) The petition contends that seven positions in the School of Education became vacant in less than a year, which the signees contend were due to petitioner.

Petitioner argues that the petition was unverified and never called for petitioner’s termination. (Reilly Decl. ¶ 14.) Petitioner also argues that, out of the 193 names typed as signees, 121 were employees of CSUCI, with the remaining unknown to her. (Reilly Decl. ¶ 14.) Out of the 121 employees, 19 were members of the School of Education, with only three tenure line professors having signed the petition. (Reilly Decl. ¶ 14.) Based on Dr. Lavariega Monforti’s email regarding feedback from the campus, however, the allegations of the petition appear to have been investigated and substantiated at least in part.

Further, in connection with the second reconsideration meeting, petitioner’s counsel provided a seven-page letter to President Yao explaining why petitioner should be reinstated as Dean of the School of Education. (Reilly Decl. ¶ 21 & Ex. 11.) In the letter affirming petitioner’s dismissal, President Yao stated that he considered the written materials submitted by petitioner and the points that petitioner raised during the meeting. (Reilly Decl. ¶ 24 & Ex. 13.)

Petitioner contends that President Yao, as well as Dr. Lavariega Monforti during the first reconsideration meeting, did not engage in meaningful discussion. (Reilly Decl. ¶¶ 18, 23; see also Reilly Decl. ¶ 3 & Ex. 2 at 3 [requiring discussion of request for reconsideration].) Petitioner faults Dr. Lavariega Monforti and Dr. Plaza for not asking questions and President Yao for not commenting on points raised by petitioner or allowing petitioner to address specific allegations. However, all decision makers heard and considered the points raised by petitioner and her counsel. Petitioner’s assertion that the discussion was not meaningful appears to indicate that she disagrees with the result, not that she was not heard or that her requests for reconsideration were not discussed. At this stage of the proceedings and considering that petitioner’s position as Dean was an at-will position, the Court cannot say that petitioner is likely to prove that the reconsideration meetings provided by CSUCI were arbitrary, capricious, or lacking in evidentiary support.

Petitioner also contends she has been deprived of the rights of faculty to which she is entitled as a faculty member. Petitioner’s appointment letter stated that the appointment includes the title of Professor of Educational Leadership and Administration. (Reilly Decl. ¶ 4 & Ex. 3.) However, petitioner never worked as a faculty member at CSUCI. Petitioner had a management-level position as Dean. As part of petitioner’s appointment as Dean, she was “granted an option to retreat to a faculty position with tenure at the rank of Professor in the School of Education at the end of your administrative appointment, subject to the terms set forth in the attached document.” (Reilly Decl. ¶ 4 & Ex. 3.) The attached terms state that the appointment letter alone did not confer tenure or permanent status to petitioner.

Retreat to a faculty position is contingent on a determination of eligibility. Petitioner is ineligible where a finding has been made that she has engaged in significant misconduct or violated policy which resulted in her being non-retained. A finding includes a final internal report resulting from an investigation conducted by the university. (Reilly Decl. ¶ 4 & Ex. 3.) Based on the foregoing terms, CSUCI is entitled to conduct an investigation to determine whether petitioner is eligible for appointment to a faculty position. Petitioner admits that the investigation has not been completed. (Reilly Decl. ¶ 25.)

Accordingly, petitioner has not demonstrated any likelihood of prevailing on her contention that she is being deprived of her right to retreat to a faculty position.

With respect to balance of harms, having failed to show a likelihood of obtaining a writ of mandate, petitioner’s request for a stay is DENIED, notwithstanding any harm that may result from the denial of petitioner’s request. (Local Rule 3.231(e) [stay governed by principles of injunctive relief]; Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 459 [“In a practical sense it is appropriate to deny an injunction where there is no showing of reasonable probability of success, even though the foreclosure will create irreparable harm, because there is no justification in delaying that harm where, although irreparable, it is also inevitable”].)