Judge: James C. Chalfant, Case: 23STCP002565, Date: 2024-09-03 Tentative Ruling

Case Number: 23STCP002565    Hearing Date: September 3, 2024    Dept: 85

A finding of misconduct is not alone enough to dismiss.  Instead, that misconduct must render the teacher unfit to teach.  San Dieguito, supra, 135 Cal.App.3d at 288.  The conclusion of unfitness must be based upon an objective standard as articulated in Morrison v. State Board of Education, (“Morrison”) 1 Cal.3d 214, 220.  See San Dieguito, supra, 135 Cal.App.3d at 288.

In Morrison, supra, 1 Cal.3d at 214, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher.  Those factors are: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Id. at 229-30.  Not every Morrison factor must be considered; a trier of fact may consider all of the factors that are relevant to the respective case.  Ibid.; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766, 1777.

3. Hearing Procedure

The governing board of the community college district determines whether to dismiss an employee. §87669.  The written statement of dismissal shall be in writing and served on the employee personally.  §87672.  If the employee demands a hearing within 30 days, the matter shall proceed to arbitration or hearing as specified in Article 4 (§§ 87669-678).  The matter shall be referred to an arbitrator, but if the parties do not agree on an arbitrator, it shall be certified to OAH for appointment of an ALJ.  §87678. 

The ALJ shall conduct proceedings in accordance with Government Code Chapter 5, commencing with section 11500, except with the broader discovery rights of a civil action in superior court.  §87679.  The written notice delivered to the employee pursuant to section 87672 shall be deemed an accusation.  §87679.

The ALJ shall determine whether there is cause to dismiss or penalize the employee.  No decision of dismissal or suspension shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.  §87680.

The decision of the arbitrator or ALJ may, on petition of either the governing board or the employee, be reviewed by a court of competent jurisdiction in the same manner as a decision made by a hearing officer under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.  The court, on review, shall exercise its independent judgment on the evidence.  §44945.

4. LACC Policies

The District’s rules are set forth in the Los Angeles Community Colleges Board Rules, Chapter XV, 15001, last amended March 9, 2016.

The District’s grievance procedures and C-14 procedures concerning sexual harassment and related offenses comply with the its legal obligations under federal Title IX of the Education Amendments of 1972, the Violence Against Women Reauthorization Act of 2013, and  section 67386.   The accused is entitled to “due process rights, as defined by law, the Board Rules, the Personnel Commission, Student Discipline Policy and Procedures, and/or any applicable collective bargaining agreement or Memoranda of Understanding.”  C-14(XII)(A). 

            D. Statement of Facts

            The following statement of facts is taken almost exclusively from Doe’s opening brief.

1. Doe’s Background and CAFYES

Doe is a former foster youth and a first-generation immigrant from Mexico, brought to the U.S. in the trunk of a car by his mother.  AR 264.  When he was ten years old, Doe’s father left.  A few years later, Doe became homeless and entered the foster care system.  AR 1029.  During his time in the foster care system, Doe was raped and otherwise victimized---experiences he has openly discussed to bring light to the types of victimization that occur in the foster care system.  AR780, 1029.

Undeterred by his circumstances, Doe received his Associate of Arts degree (AR 3215), a bachelor’s degree in political science (AR 3216), a master’s degree in educational counseling (AR 3216), and a Ph.D. in Education and Leadership in 2009 (AR 3229).   In 2012, he founded a non-profit student/mentor program modelled on EOPS and focused on the college recruitment, retention, graduation, and transfer of current and former disadvantaged foster youth.  AR 3218.

Doe was hired as a full-time Counselor/Coordinator for CAFYES starting on September 1, 2016.  AR 3210.  Garcia, who had been the program director of Guardian Scholars since 2009 (AR 2651), applied to be director of CAFYES (AR 3222).  However, LACC offered the position to Doe.  AR 3210-11.  Guardian Scholars and CAFYES shared the same office space.  AR 1900-01.  Doe’s relationship with Garcia had soured in the first few weeks. AR 3222-23. 

Becoming director of the CAFYES program was a dream come true for Doe.  AR 3210.  Doe counselled not only CAFYES students, but also EOPS students, mentoring some 150-175 students.  AR 3785.  He had a strong interest in growing the number of students in CAFYES, which would increase the program budget. AR 3747.  In his first year, Doe successfully recruited 50 former foster youth students to the CAFYES program, an increase from the 15 students served in 2015-2016.  AR1466.  

In 2016 and 2017, Doe was evaluated by all students in the CAFYES program and received 100% positive evaluations in 2016 and 99 % positive evaluations in 2017.   AR 1813, 3285.  In 2017, Doe received a commendation from the California Chancellors Office for the “Exponential Program Growth” of the program.  AR 1667.   Doe received third- and fourth-year contracts by his tenure review committee.   AR 3768, 3226.

            2. Evelyn Robles

            Student Evelyn Robles (Robles”) interned with Doe from 2017 to 2018.  See AR 4204.  Robles typically worked with Doe five to six hours a day, five days a week -- a total of 24 to 30 hours a week -- helping students with academic counseling, transferring to four-year universities, and accessing resources.  AR 4205, 4209-10.  She also helped with Doe’s workshops for CAFYES students.  AR 4210-11.  Robles spoke highly of Doe: “He would help everyone.  He had a lot of students that were of different ethnicities.  I just saw him as a very respectful person who would help and go out of his way to get you the support that you needed.”  AR 4215.  Robles never heard Doe use inappropriate language or behave inappropriately with students, not even rumors, and she has no tolerance for such behavior.  AR 4213-14. 

3. Justin Pitts

            Justin Pitts (“Pitts”) is a former student employee in the EOPS office who helped students check in, distributed supplies, assisted counselors, and worked with Doe five hours a day, four days per week.  AR 4310.  Pitts saw Doe engaging with students and staff, often exchanging high five greetings and providing support.  AR 4319-20.  Doe was approachable, sometimes hugging female students and staff in a “one-arm church hug.”  AR 4321.   The interactions appeared normal within the office’s culture, and he did not witness or perceive any inappropriate behavior in the hugs.  AR 4314-15, 4326.  Pitt denied hearing any allegations that Doe had used inappropriate language or exhibited any conduct that was racist or sexually inappropriate.  AR4314-15.

4. Chiuang Lee

            Since 2013, Chiuang Lee (“Lee”) has handled finances and payments for EOPS, the CARE program (supporting single parents), and the CAFYES program.  AR 4117-19.  Lee is also responsible for the gift cards (typically Target cards) used as incentives for students.  AR 4135-39.    Lee described the office as a collegial atmosphere that included morning greetings and occasional hugs, which she associates with an embracing office culture, especially among Hispanic staff.  AR4151-53.  She denied ever seeing or hearing complaints about inappropriate behavior by Doe.  AR 4144.

5. Ester Sunday

            Ester Sunday (“Sunday”) is the LACC college store supervisor, a position she has held since 2001.  AR 4170.   Sunday helped CAFYES students with vouchers for textbooks, supplies, and meal vouchers, and has seen Doe interact with students in a similar manner.  AR 4171-73.  Her interactions with Doe were always professional and she had never heard any complaints from students or colleagues about his conduct.  AR 4173-74.  She described Doe as caring deeply about students, often going above and beyond to assist them.  AR 4173.  Sunday’s son, Justin Pitts, worked with Doe and never reported any issues. AR 4174.  Sunday had never seen Doe act inappropriately and has been hugged by him more than once without ever feeling uncomfortable.  AR 4180.   She did not believe the charges against Doe were true.  AR 4197.

6. Oscar Enrique Flores

            Oscar Enrique Flores (“Flores”) has been an academic counselor at LACC since 2008. AR 4366.  Flores had not heard of any student complaints about Doe’s conduct.  AR 4384-86.  He and Doe would walk students to different offices so they could get the help they needed.  AR 4384.  Doe was very hands-on and would come into the office early.  AR 4374.  Doe has a doctorate, and he came in with a lot of new energy and a lot of positive ideas for CAFYES.  AR 4373.   Some staff would hug each other, but everybody is different.  AR 4385-87. 

            Flores had a run-in with Guardian Scholars director Garcia when he tried to assist a student.  AR 4383. 

            He was surprised when he learned that Doe had been escorted out of the building.  AR 4383.   Flores recalled a conversation in which Doe voiced concerns about how resources were being spent on students for the CAFYES program.  AR 4380.

7. Kassandra Sagrero

            Kassandra Sagrero (“Sagrero”) started at LACC in 2010, dropped out in 2013, and returned in 2017.  AR 4014-15.  She was involved with the Guardian Scholars program beginning in 2010 when Garcia was the director.  AR 4016.  In 2017, she learned about the CAFYES program and became an intern for CAFYES working with Doe.  AR 4018.  Sagrero helped with paperwork and data entry and was a “social butterfly” who would go out and meet students and just talk to them about every program.  AR 4022.  Doe’s sharing of his personal experiences and his openness helped her feel understood and supported.  AR 4099.  Doe’s guidance on professional attire and grooming for student workers was mentorship.  AR 4065-66, 4114-15.   Doe was supportive and respectful, and she denied seeing him hug any students or commit other inappropriate behavior.  AR 4027, 4031-33.  Sagrero was questioned by Garcia about Doe and maintained that she witnessed no inappropriate actions by Doe and they (counselors) were trying to “dirty up” Doe and saying things that were not true.  AR 4031-32. 

8. Sandra Novoa

            Sandra Novoa (“Novoa”) testified that she is Senior Office Assistant in the EOPS program and an adjunct Spanish professor. AR 4280.  She assisted Doe with his scheduling, student appointments, and maintaining records in the SARS system.  AR 4288, 4904-5062.   Doe was successful in recruiting students to the CAFYES program.  AR 4288. 

            Novoa never heard any complaints about Doe from students.  AR 4291.  She witnessed colleagues hug each other on campus but not students.  AR 4293-94.  She personally never hugged student workers either.  AR 4293.  No one ever said that LACC forbids hugging.  AR 4293-94.  She never heard any complaints from students about Doe, or any other counselors; students just came to say hello.  AR 4291-92.

9. Yessica Noriega Del Campo

            Yessica Del Campo (“Del Campo”) is an EOPS counselor in the CAFYES program (AR 2146) and worked with Doe from 2016 to 2018.  AR 2149.  Once when passing his office, she heard Doe talking to a male student who had been ditching classes.  AR 2154.  Doe told the student “You need to stop fucking around” and the male student nodded in agreement.  AR 2154, 2209.  If a student needed money for food or ran out of gas, Doe would provide money out of his own pocket, regardless of the gender of the student.  AR 2160.  Doe said: “If a student has a need, I'm going to meet it, if I can.” AR 2231. 

            LACC has a hugging culture.  AR 2172-73.  Doe would hug a female that “came in for a hug”.  AR 2170.  “I mean that's how he used to greet everyone.”  AR 2170.  Doe was even-handed in complimenting male and female students and staff on their abilities, intelligence, and appearance.  AR 2205-06, 2225.   She never heard Doe use racist language.  AR 2233. 

10. A.B.’s Complaint

In March 2017, at the recommendation of bookstore manager Sunday, Doe hired female student A.B. as one of four student workers in the CAFYES (the other workers were Sagrero, Elias, and A.P.).  AR 3230, 3357.  The CAFYES student workers worked part time, often on different schedules, and shared a small workspace outside of the offices of Doe and Garcia.  AR 3361-62. 

            In February 2017, Doe learned that Guardian Scholars director Garcia had been interviewing students about possible complaints to bring against Doe.  AR 1216, 3231.  In approximately November 2017, Garcia filed her own formal complaint.  AR 1375.

            In May 2017, A.B. complained about Doe to Dean Magee about inappropriate communication of a sexual nature and the use of profanity.  AR 1347.  Dean McGee relocated A.B. to another department as a student worker.  AR 1347.  On June 1, 2017, A.B. filed a formal written complaint against Doe for race, sex, and gender discrimination and listed Guardian Scholars student workers L.B. and L.S. and Guardian Scholars student C.A. as witnesses.   AR 5233.  A.B. also claimed that Doe forced her to work beyond 25 hours without pay.  However, all student workers clocked-in and clocked-out in EOPS, which was out of Doe’s control, and Doe had no involvement with LACC payroll.  AR 1949, 2015.

            A.B. graduated from LACC in June 2017.  AR 1894.  On June 28, 2017, Compliance Officer Friedman sent Doe a Notice of Complaint of Discrimination, notifying him that A.B. alleged unlawful discrimination based on race, sex, and gender, and making “racially charged and/or sexually suggestive comments to her on multiple occasions”.  AR 5246.

On July 11, 2017, Doe responded to Friedman about A.B.’s complaint.  AR 1167.  He stated that A.B. proved to be unproductive, inefficient, and had a negative attitude, complaining when asked to do her job, would not follow directions, and arrived late to work.  AR 1167.  A.B. would become upset, rude, and disrespectful when Doe tried to give her directions.  AR 1167.  About two months after A.B. started working for the CAFYES program, Doe informed her that he intended to remove her due to poor job performance, but he did not know how.  AR 1167.[5]

            On August 14, 2017, LACC interviewed A.B. and then Doe two weeks later.  AR 1830. 

11. Jonathan Elias

            Elias has known A.B. since 2014.  AR 1946.  Elias told A.B. about the LACC bookstore job (AR 1946-47), and A.B. worked for Sunday for a few months.  AR 1947.  A.B. then was hired by Doe and worked with Elias at CAFYES about 2½ months until the end of May 201.  AR 1954-55, 1959.  Elias backed A.B.’s allegations against Doe.

12. I.N.’s Complaint

            On November 9, 2017, I.N. submitted a complaint that Doe had engaged in “Unsolicited Unprofessional Behavior” between September 28 and November 8, 2017.  AR 1360.  Doe had made repeated requests for I.N. to provide a State Foster Care Verification form.  AR 5268.  I.N. also complained that Doe (a) required her to attend a workshop in order to receive a $100 gift card[6] that had already been awarded to her for academic achievement, (b) told her she looked like shit and should wear makeup and represent the CAFYES program better, and (c) jokingly asked I.N. in front of her peers if she had been “smoking weed.”   AR 2406, 5269.  

            In the Spring of 2018, I.N. transferred out of LACC to attend a four-year college.  AR 2765.  

13. Liliana Medrano

            Lilliana Medrano (“Medrano”) was employed as a student worker at the EOPS office from 2015 to 2018 and was supervised by Novoa.  AR 2044, 2064.  

            In 2018, she was contacted by LACC and asked about any incidents involving Doe.  AR 2114-15.  Medrano relayed two times in 2016 that Doe had made her feel uncomfortable.  The first was when she shared personal information at lunch on campus about being a victim of an assault in New York.  Doe responded with career advice and encouragement.  AR 2098.  When they stood up, Doe put his hand on her back as they were standing side-to-side, which made her uncomfortable.  AR 2102.   The second instance was an occasion on which they ate lunch.  When they stood up, Doe put his hands on her lower back for five to seven seconds, which made her uncomfortable.  AR 2049-50. 

            14. Doe’s Whistleblower Claim

            On January 11, 2018, Doe informed EOPS/CAFYES Counselor Dovlatyan, Vice President Student Services Smith, and Dean of Student Services Yamanishi that the CAFYES program was out of compliance with the Chancellor’s Office’s rules and regulations, and that students in the CAFYES program were not receiving the services to which they were entitled by law.  AR 1678.  Doe noted that the program required additional staff that had not been hired, despite the current CAFYES budget of $362,005.  AR 1678.

            On January 12, 2018, at the EOPS/CARE Region 7 Meeting at Pasadena City College, Doe raised similar concerns while speaking to the group for about ten minutes.  AR 1679, 4452.   On January 16, 2018, Doe wrote to Dean Yamanishi that LACC was out of compliance with the CAFYES program.  AR 1680. 

            On January 22, 2018, Dean Yaminishi sought unsuccessfully to place a memorandum in Doe’s personnel file with the District Human Resources and LACC personnel.  See AR 1689.   On January 25, 2018, Doe filed a grievance against Dean Yamanishi and Dovlatyan, reporting that he felt discriminated against, retaliated against, and treated unfairly after he was invited by Dovlatyan to present about the CAFYES program at a “Counselor to College Summit” on Friday, January 26, 2018, but the invitation had been retracted.  AR 1697.

            Interim President Gallagher reassigned Doe to split his time between CAFYES Counselor and EOPS Counselor and terminated Doe’s duties as CAFYES Coordinator.  AR 1705.  All CAFYES leadership responsibilities were turned over to Dovlatyan.  AR 1718.

            15. The Investigation

            Doe testified that he heard nothing further about the complaints for about a year.  AR 3353.   On June 20, 2018, LACC issued a Notice of Investigation and placed Doe on paid administrative leave.  AR 702, 734.  LACC asserted there were six complainants.  AR 990-93. 

            Compliance Officer Friedman was the investigator.  AR 187.  Doe was interviewed for three days, August 16, August 20, and August 21, 2018.  AR 992.  Doe denied that he engaged in sexually inappropriate, discriminatory, and intimidating conduct towards any LACC students, student workers, or staff, and disputed all of the District’s charges.  AR 436.  Friedman’s investigation continued for 568 days.  AR 788.  

            On May 10, 2021, the District served Doe with the Statement of Charges.  AR 901, 917.

16. The Hearing

The matter was certified to OAH and assigned to ALJ Laurie Pearlman (the “ALJ”) pursuant to section 87678. During the pendency of the administrative hearing, the District amended its Statement of Charges to reflect Doe’s unlawful access of student data.  AR 565-71.

Doe and the District presented evidence and testimony over 18 days of hearings from February to mid-August 2022.  Of the six complainants, only A.B., I.N., and Medrano testified at the hearing.  AR 982-1346, 1876-4510.  The parties submitted written briefs and the record was closed on December 24, 2022.  AR 1821-22.

            17. The ALJ’s Decision

On March 28, 2023, the ALJ issued a 53-page decision affirming that Doe committed misconduct sufficient to support his termination from his faculty role at LACC.  AR 1821.  The ALJ found as follows:

District is a community college district.  The District hired Doe in August or September 2016 to work at LACC as the Counselor/Coordinator for CAFYES, which assists college level foster youth, and as a counselor for EOPS.  Doe primarily served students from disadvantaged backgrounds and students who were current or former foster youth.  AR 1822-23.

Guardian Scholars is a program for students who have been in the foster care system at any point. It is designed to assist current or former foster youth to meet academic goals and provide an easier adjustment into college life.  Guardian Scholars, unlike CAFYES, is not part of EOPS.  Both CAFYES and Guardian Scholars provide a variety of services including academic support workshops, specialized counseling services, career guidance, financial aid information/assistance, and meal and book vouchers.  AR 1824.

Student Complaints

In April, late May, and November 2017, and January, July, and August 2018, six students brought complaints against Doe. The students alleged that Doe had engaged in verbal and physical sexual harassment, discrimination based on sex or gender, harassment based on race or ethnicity, and retaliation.  AR 1824.

Students I.N. and B.C. were participants in the Guardian Scholars program.  Student A.B. was a paid student worker for the Guardian Scholars program.  Student L.M. was an EOPS student worker.  Student S.M. was a CAFYES student participant.  Student N.B. was not in CAFYES, EOPS, or Guardian Scholars.  AR 1824.

On June 25, 2018, the District placed Doe on paid administrative leave while it investigated the student complaints.  After the first notice of investigation, additional complaints were received in July and August 2018.  AR 1824.

The Investigation

The investigation was conducted by Friedman, a Compliance Officer with LACC’s Office for Diversity, Equity, and Inclusion.  Investigator Friedman testified credibly at the hearing.  She interviewed 16 complainants and witnesses.  She interviewed Doe on August 30, 2017, and July 20 and October 19, 2018, for a total of ten hours.  Investigator Friedman prepared a 365-page investigative report dated March 5, 2019.  AR 1525.

Many of the individuals interviewed by Investigator Friedman testified at the hearing.  Their hearing testimony was consistent with their complaints and with their statements to Investigator Friedman as set forth in her investigative report (the “Report”).  AR 1825.

Doe denied the accusations against him. He told Friedman that it is “no coincidence” the majority of complainants were former foster youth, asserting their accounts are unreliable because of their foster youth status. He stated that the students in CAFYES were very emotional and “manipulative” and were generally “disturbed.”  He told Friedman that he did not inform students that attendance at CAFYES workshops was mandatory or that failing to attend could jeopardize their meal or book vouchers.  He never used the term “nigga” and never commented on anyone’s appearance or the way a student dresses or does their hair or make-up.  Doe denied any physical contact with Student I.N. and denied making any comments about her appearance. He denied initiating any physical contact with students unless requested to do so and in that instance engaged only in side hugs.  AR 1825.

Friedman’s’ Report sustained the allegations.  She concluded that Doe’s conduct constituted verbal and physical sexual harassment, discrimination based on sex or gender, discrimination based on race or ethnicity, and retaliation.  Friedman concluded that Doe’s denials were not credible and were refuted by witnesses and documentary evidence.  AR 1826.

The Dismissal

            By letter dated July 31, 2019, the District informed Doe that it had determined that, by a preponderance of the evidence standard, he had engaged in discrimination on the basis of race/ethnicity and sex/gender, sexual harassment, and retaliation, as alleged by Students N.B., S.M., I.N., B.C., A.B., and L.M.  AR 1826.

President Gallagher testified credibly at the hearing. She first met Doe in Spring 2018 and found his conduct with her “flirtatious” which she considered “odd” in a professional setting.  She also observed Doe’s interactions with young female students, which included Doe placing his hand on a female student’s back for more than “just a quick tap” and standing behind a student and whispering in her ear rather than talking to her face-to-face. Gallagher found this behavior “unusual”.  AR 1826.

            On November 12, 2019, Doe and his attorney met with President Gallagher and an attorney for the District.  Doe “looked [President Gallagher] straight in the eye and said ‘they’re all lying.’” Gallagher did not find Respondent’s blanket denial of each of the allegations to be credible.  Based on her own observations of Doe, as well as her review of his explanations and the Report, she concluded that Doe had engaged in discrimination on the basis of race/ethnicity and sex/gender, and had engaged in sexual harassment and retaliation, as alleged in the complaints by students N.B., S.M., I.N., B.C., A.B., and L.M.  AR 1827.

Gallagher found that Doe’s conduct violated Board Rule 15001 and Administrative Regulation C-14, which prohibits discrimination, harassment, and retaliation.  He failed to follow Board Rule 9803.12, the standard of conduct regarding dishonesty. He failed to follow Board Rule 9803.21, the standard of conduct regarding discriminatory behavior, including harassment.  AR 1827. 

On December 10, 2019, Doe was provided Gallagher’s final decision.  AR 1827. 

On May 7, 2021, Doe was served with the Board-approved Statement of Charges notifying him of the District’s intent to seek his dismissal from employment.  Based on new information revealed at the hearing, the District was granted leave to file an Amended Statement of Charges  on June 27, 2022.  AR 1827.

Doe timely requested a hearing pursuant to section 87673.  AR 1827.

McGee

McGee testified credibly at the hearing.  She worked at LACC from March 2015 to October 2017.  Her duties as Dean of Student Services and Title IX Coordinator included oversight of EOPS, CAFYES, and Guardian Scholars staff and programs.  AR 1828.

On April 14, 2017, Student Services Specialist Krixa Lim (“Lim”), a LACC Veterans’ Program Coordinator, told Dean Magee that Student N.B. had said that Doe’s behavior made N.B. uncomfortable.  N.B. stated that Doe told her she must see him in order to submit financial aid documents -- which was not the case -- told her she is beautiful and touched her face, asked her whether she has a boyfriend, told her that students “hit” on him, and told her that she needs to text him and let him know how she is doing.  N.B. alleged that Doe then got upset with her when she told him she is busy and not able to come to campus to meet with him.  AR 1828.

Dean McGee spoke to Doe about this, and he told her that he understood this interaction with Student N.B. was “not appropriate.”  AR 1829.

A.B.

Student A.B. worked for Doe in the CAFYES office from February to June 2017.  In May 2017, A.B. complained about Doe to Dean McGee, alleging his inappropriate communications of a sexual nature and his use of profanity from March to May 2017.  AR 1829.

On May 25, 2017, three female students and A.B. met with Dean McGee.  All four students were “passionate” and “all of one accord” regarding Doe’s inappropriate conduct.  Student A.B. was very anxious and stressed by Respondent’s behavior and Dean McGee relocated her to a student worker position in another department.  AR 1829.

On June 1, 2017, A.B. filed a formal written complaint against Doe for “race, sex, and gender discrimination and sexual harassment.”  She alleged that Doe made racially charged comments, statements regarding her appearance, suggestive comments, and engaged in inappropriate behaviors.  A.B. requested a remedy that Doe receive counseling on what is acceptable behavior towards women.  AR 1829.

On June 28, 2017, Friedman provided Doe with a notice of A.B.’s complaint.  On July 12, 2017, Doe provided a written response, asserting that A.B. was an unproductive and inefficient student employee, had a very poor attitude, arrived late to work, and that he had “intended to release” her from employment.  AR 1829.

On August 6, 2017, Dean McGee met with Doe regarding complaints made regarding the 2016-2017 school year. Doe agreed to eliminate his use of profanity but denied all other accusations.  AR 1829.

On August 14, 2017, Investigator Friedman interviewed A.B. and interviewed Doe two weeks later.  AR 1829.

            B.C.

In November 2017, Student B.C. filed a complaint alleging Doe’s unsolicited comments about her appearance and unprofessional behavior by Doe from November 2016 to November 2017.  B.C. suggested that Doe has boundary issues with students as evidenced by grabbing her elbow, looking her up and down while making an “mhm” sound under his breath, and suggesting she not date men from LACC because they are “broke.”  She alleged that Doe retaliated against her when she stood up for another student whom she felt he was mistreating because Doe claimed B.C. did not have the proper documentation to remain in the CAFYES program and threatened her with loss of her meal vouchers.  AR 1830-31.

I.N.

Student I.N. testified credibly at the hearing. She is a former foster youth who attended LACC from 2014 to 2018.  I.N. was involved in the Guardian Scholars and CAFYES programs and interacted with Doe from Fall 2017 to Fall 2018.  She saw Doe four times per week on campus during that period.  AR 1831.

Doe informed I.N. that attendance at CAFYES meetings was mandatory and failing to attend would jeopardize her meal and book vouchers.  AR 1831.

I.N. observed Doe hugging students, grabbing students by the arm, using profanity -- including “shit“ and “fucking” -- and commenting on females’ appearances.  AR 1831.

On November 9, 2017, I.N. submitted a complaint alleging that Doe had engaged in unsolicited unprofessional behavior between September 28 and November 8, 2017.  Her complaint alleged verbal and physical sexual harassment and retaliation.  AR 1831.

            S.M.

Student S.M. is Black. She alleged that between November 2016 and November 2017, Doe made racist comments to her, including stating that her hair looked dirty when worn in an Afro, exhibiting a discriminatory preference for students of Latin descent, and speaking inappropriately about non-school related topics in program meetings, including telling students that Doe married his wife because she was a virgin.  AR 1832.

L.M.

Student L.M. alleged that between Doe’s hire date and July 2018, he made attempts to gather personal information about her and her boyfriend although there was no professional reason for Doe to obtain that information.  He hugged her in a way that was unwelcome, uncomfortable, and inappropriate, made inappropriate comments as to the appearance of various women, and improperly delegated work to male students.  AR 1832.

            Veronica Garcia

Garcia testified credibly at the hearing. Garcia has been employed at LACC for 12 years and served as the Guardian Scholars Counselor/Coordinator from 2009 until 2020.  At one point, her office and Doe’s office were next to each other.  AR 1832.

Garcia saw Doe hugging female students and heard him comment on female students’ appearances. She also heard Doe tell students that attendance at workshops was mandatory.  AR 1832.

At the end of Fall 2016, a student told Garcia that she and other female students felt uncomfortable with Doe hugging them.  Garcia immediately shared the student’s comments with Dean McGee.  AR 1832.

In the Spring of 2017, Doe confronted Garcia, accusing her of approaching students to ask them about his interactions with them. Garcia denied doing so.  Doe told Garcia he “would not ruin [his] career for some pussy” and insisted he “didn’t touch a woman’s pussy, grab her ass, or touch her tits.”  AR 1833.

On November 6, 2017, Doe told Garcia in a loud stern voice: “You need to tell them this needs to stop.” Garcia understood this as a direction to tell students to stop complaining to the dean about him.  AR 1833.

Garcia submitted a complaint dated January 12, 2018, alleging that Doe engaged in sex/gender discrimination and retaliation against her from February through November 2017.  Garcia felt threatened and bullied by Doe.  Garcia felt that his behavior towards female students was particularly inappropriate.  In her complaint, Garcia detailed how Doe retaliated against her.  AR 1833.

Efforts to Counsel Doe

President Gallagher, Dean McGee, and Dean of Student Services Yamanishi counseled Doe on numerous occasions about the complaints made against him and emphasized the need to maintain professional boundaries with students and staff.  AR 1834.

Doe received Title IX training, was spoken to repeatedly by Dean McGee about his conduct, was warned about his actions, had complaints filed against him, and was counseled via written memoranda. Nevertheless, Doe continued to engage in similar misconduct and inappropriate behavior.  AR 1834.

On August 16, 2017, President Gallagher and Dean Jeremy Villar met with Doe and LACC Counselor Mario Escalante regarding student complaints from the 2016-2017 academic year.  Doe admitted to using profanity around students but otherwise categorically denied every allegation against him, asserting that each of those accusations was a lie.  AR 1834.

Bases for Termination

The District concluded that Doe engaged in discrimination on the basis of race/ethnicity and sex/gender, and engaged in sexual harassment and retaliation, as alleged by students, student workers, and staff.  AR 1835.

Sexual Harassment

Students, student workers, and other staff testified credibly regarding acts by Doe of sexual harassment and retaliation.  AR 1835.

From May and November 2017 through the Winter of 2018, Doe frequently made suggestive comments about the appearance and bodies of female students and/or staff, either directly to students and student workers or in the presence of students and student workers, including that he would “try to get with” certain women if he were not married, commenting that females were “beautiful,” have “nice ass” or good-looking body, or commenting on how females looked while wearing certain clothing.  AR 1835.

He told Student A.B. that it was “mandatory” that she “look nice” every day and commented on her appearance, including stating how he thought she looked on a particular day, giving frequent “rundowns” regarding her hair and make-up, and critiquing the way she was dressed.  AR 1836.

Student L.M. often heard Doe talk about how other females looked, dressed, wore makeup, or would look better if they dressed or wore makeup in a certain way.  AR 1836.

Doe engaged in suggestive and lewd conduct towards females on campus while in the presence of students or student workers, including assessment of women’s’ looks by glancing up and down their bodies and openly staring at their behinds as they walked away.  AR 1836.

Doe made unsolicited critiques about the appearance of his students and student workers, either directly to them or in their presence.  He made unsolicited remarks in Fall 2017 about Student I.N.’s appearance, telling her she needed to look more “ladylike.” He would often tell I.N. she “looked like shit” when she was wearing sweatpants or other casual wear and advised her to wear makeup every day to cover her flaws.  Doe was aware that I.N. suffered from diagnosed depression, in part from her turbulent time in the foster care system.  Doe’s comments reduced I.N. to tears and made her feel “ugly.”  AR 1836.

Doe instructed student employees to recruit younger, attractive female students to participate in EOPS and CAFYES.  Student L.M. heard Doe instruct male student employees to recruit young and beautiful females to work for him.  AR 1836.

Elias

Jonathan Elias (“Elias”) testified credibly at the hearing.  Elias was hired by Dean McGee as a student worker for the CAFYES program and worked there from Fall 2016 to June 2017. Elias continued to work at LACC after graduating but eventually left to attend California State Polytechnic University, Pomona.  AR 1837.

In 2017, Elias was the only male student worker in the CAFYES program office.  Doe walked across campus with Elias at least once or twice per week. During these walks, Doe often made inappropriate comments about the women he saw, stating that a particular woman was attractive or “has a nice ass.”  AR 1837.

Elias was present when Doe told Students A.B. and Ashley Perez that they “look beautiful.” Elias heard Doe tell women they were beautiful on more than ten occasions.  One time, a student walked into the office with a question.  Doe saw her and exclaimed: “You’re so beautiful. You should be our intern.”  AR 1837.

Doe spent significantly more time meeting and counseling female CAFYES participants than male participants and had a pattern of hiring primarily female students to work in the CAFYES office.  Doe also recruited female students to serve as his unpaid “interns” even though such a position did not officially exist.  AR 1837.

Unwanted Physical Contact With Students

Doe frequently called Student A.B. and other student staff while they were off duty.  During these telephone calls, he would sometimes comment on how A.B. had looked that day.  AR 1837.

Doe engaged in unsolicited and unwelcome contact with students and student workers, including touching them on the back and hugging women without first obtaining their consent. Student I.N. testified that Doe hugged her whenever he saw her on campus. These included side hugs and front hugs, with their chests touching and Doe’s arms wrapped around her. On one occasion, Doe grabbed I.N. forcefully by the elbow/upper arm, pulled her towards him, and would not let go while “berating” her that she needed to be grateful for all Doe did for her.  AR 1838.

Doe kissed Students A.B., Perez, and Sagrero on the forehead after a CAFYES/Guardian Scholars “Etiquette Dinner” at a restaurant off-campus.  AR 1838.  Doe kissed female student Claire Araujo on the forehead and hugged her after she assisted with an event, making her so uncomfortable that she stopped coming to the CAFYES office.  AR 1838.

            Multiple female witnesses testified that Doe placed his hand on their lower back.  Other witnesses testified that they saw Doe do so.

Doe placed his hand on Student I.N.’s back for several minutes. President Gallagher observed Doe walk up behind a female student and place his hand on her lower back for an extended period while speaking to her.  AR 1839.

Doe came up behind I.N. and began squeezing and massaging her shoulders, which startled her.  On another occasion, President Gallagher was concerned when she observed Doe rubbing the shoulders of a young female student. Several witnesses observed Doe rubbing female students’ shoulders.  President Gallagher observed that Doe had his hand on a female student’s back for some time while he was speaking to her.  Gallagher found this to be very unusual conduct for a male in a counseling position.  President Gallagher was concerned about the manner in which Doe interacted with young female students in CAFYES and ultimately gave the direction to move him of the CAFYES program.  AR 1839.

Student A.B. complained that Doe engaged in inappropriate physical conduct with her. Doe hugged A.B. and other female students with his “arms wrapped around [them]” which made A.B. feel awkward and unsettled.  She felt shocked and disgusted when Doe gave her a full contact, enclosed hug and then kissed her on the forehead.  AR 1839.

Multiple witnesses testified that Doe hugged female students in full contact, enclosed hugs, often without the women’s consent or any indication of consent.  Doe initiated unwelcome physical contact with Student L.M. which involved placing and keeping his hand on her lower back for an extended period and caused her to feel uncomfortable.  Doe also hugged L.M. by surprise as they were passing each other in a hallway, without her consent, in a full forward-facing hug with their torsos touching.  L.M. testified that the hug was “his chest to my chest” using “two hands” to hug her “long enough to make me feel uncomfortable.”  AR 1839.

Doe initiated unwelcome physical contact with Student I.N. almost every time he saw her, giving her front or side hugs and not letting go right away, touching her arm, standing close to her while grabbing her arm, holding her lower back while speaking, squeezing her shoulder, using physicality to get her attention, and/or coming up from behind and touching her when she did not know he was there.  AR 1840.

Doe hugged I.N. at least four times per week during Fall 2017.  On one occasion during that period, I.N. and a male friend, Chris, were together on-campus, away from the CAFYES office.  Doe came up to I.N. and gave her an unwelcome side hug.  He held on to I.N. for so long that Chris could see she was uncomfortable and asked Doe to let go of her.  Doe asked whether Chris was her boyfriend.  AR 1840.

On October 12, 2017, I.N. attended a workshop held by Doe.  She cancelled her pre-existing plans because Doe informed her that she must attend to retrieve a gift card he had in his possession that she had already earned from Guardian Scholars. Following the workshop, Doe finally handed the gift card to her.  As she turned to leave, Doe grabbed I.N.’s arm and turned her around to face him, stating that he is patient with her because she is his “favorite,” and that she needs to be more grateful to him.  His conduct intimidated I.N. and made her feel uncomfortable.  AR 1840.

Discrimination Based on Gender

Doe engaged in discriminatory conduct against women in favor of men. He told student workers working at the EOPS front desk to seek out young, beautiful female students to work for him.  He openly subscribed to stereotypes about women.  Doe instructed student workers to target potential female participants for CAFYES, asserting that females are more receptive and listen better than men do.  He also expressed his belief that women need more guidance than men.  As a result, significantly more women than men were in the CAFYES program, which did not reflect the overall student population.  AR 1841.

Multiple witnesses confirmed that Doe exhibited a generally sexist attitude towards women, especially when their behavior did not conform to his views on gender roles.  AR 1841.

Harassment Based on Race

Doe engaged in unprofessional and discriminatory conduct toward Blacks.  When Doe and CAFYES student workers Elias, Perez, and A.B., were walking across campus, Doe asked Perez and A.B. whether they had boyfriends. Doe stated to A.B: “I bet you like those niggas, huh?”  AR 1842.

Another incident occurred in the CAFYES office during a conversation about A.B.’s boyfriend.  When Doe saw a photograph of A.B.’s boyfriend, he told her: “I had a feeling you would date a nigga before you even showed [your friend] that picture.”  AR 1842.

Doe told A.B.: “Comb your nappy hair for once” and “don’t come to work with your hair looking all nappy.” Doe also described A.B. as having “nappy hair” in conversations with other people. Student I.N. confirmed that she heard Doe describe people’s hair as “nappy.”  On one occasion, Elias heard Doe tell A.B. that her hair looked “nice, not nappy as usual.”  Elias heard Doe use the term “nappy” to describe A.B.’s hair on more than one occasion.   AR 1842.

Retaliation

Doe threatened A.B.’s job on campus if she continued objecting to demands she felt were unethical or inappropriate, such as when Doe directed her to review applications for a scholarship for which she herself was a candidate.  AR 1843.

Doe retaliated against Student I.N.  In late September 2017, Doe questioned I.N.’s eligibility to be in the CAFYES program because she had been adopted by her foster parents.  After I.N. explained she was eligible through her number of years in the foster system and her age and explained that she receives a Chafee grant (a state grant for foster youth), Doe seemed to accept her eligibility for the CAFYES program.  AR 8143.

However, on October 3, 2017, Doe sent a text message to I.N. stating that she needed to bring to his office a Foster Care Verification Document certifying that she had been in foster care.  I.N. emailed the requested document, which contained the seal of the County of Los Angeles.  Doe assured I.N. that the paperwork was sufficient.  AR 1843.

Later that same week, Doe informed I.N. that he needed foster care verification paperwork with the State seal, not the County seal.  I.N. explained that foster care is run by the County, not the State, but she would look in her file for the State document.  I.N. was unable to find the requested documentation because it appears the State does not issue such a document.  AR 1843.

On October 12, 2017, Doe grabbed I.N.’s arm and told her that she needed to be more grateful to him because she was his “favorite.” Shortly thereafter, I.N. contacted Dean McGee to make a complaint against Doe.  Dean McGee told I.N. that she would speak to Doe and I.N. consented to the use of her name.  AR 1844.

On October 26, 2017, Doe sent a text message to I.N. that she had to come to his office as soon as possible to turn in her State Foster Care Verification form or she would jeopardize the meal and book vouchers provided by CAFYES.  Minutes later, Doe emailed I.N. that she had to bring her form or she would jeopardize her meal and book vouchers and her grants.  Student I.N. contacted adoption and foster care professionals at the Children’s Bureau who confirmed that the document Doe requested did not exist.  AR 1844.

On October 29, 2017, I.N. asked Doe to provide her with a blank form of the document he was requesting.  Doe replied that he had such a form but could not email it, and he insisted that I.N. come to his office to pick it up.  I.N. felt intimidated by Doe’s actions and did not want to be in the same space as him.  This back and forth over the form continued.  After I.N. stated: “I wish for you to respect my boundaries otherwise I will consider this harassment”, Doe replied “noted” and provided her with a telephone number to call the Ombudsman’s Office to receive the verification form.  AR 1845.

Shortly thereafter, Doe approached I.N. while she was in the office area for Guardian Scholars and insisted that she come with him into his office to handle the documentation issue.  I.N. no longer felt comfortable going to the CAFYES or Guardian Scholars area to receive services and benefits, and even avoided entering the building where Doe worked.  AR 1845-46.

Confidential Student Information

Doe received District documents containing confidential student information after he had been placed on administrative leave. The documents were records, reports, and emails containing confidential student information, student counseling records for students in the EOPS and CAFYES programs, documents with students’ full names, student identification numbers, and their recorded contacts with the EOPS and CAFYES program.  AR 1846.

Novoa, the Senior Office Assistant in EOPS and CAFYES, testified credibly at the hearing. After Doe was placed on leave, he telephoned Novoa at work and asked her to print out the student documents and provide them to him.  Doe told Novoa which documents he needed and directed her to bring the documents to him.  Novoa understood that Doe did not want to come onto campus to get the documents and wanted to meet her off-campus.  AR 1847.

Doe also took with him numerous pages of year-end CAFYES reports that included students’ full names and information.  Doe was initially evasive as to his possession of these year-end reports. He subsequently testified he took the reports on his way out of the office after being informed that he had been placed on administrative leave.  AR 1847.  Doe also was initially evasive as to when, how, and why he obtained them. He later testified: “Whether it’s appropriate or not appropriate, I needed documentation to defend myself and prove that I did not do the things I was accused of.”  AR 1847.  Doe admitted that all the student counseling records he submitted in this proceeding were printed by Novoa at his request.  AR 1847.

Doe’s Evidence

The ALJ summarized Doe’s testimony concerning his background, job as Counselor/Coordinator, and the 2016 and 2017 evaluations by students.  AR 1847-48.

Doe denied the allegations that he engaged in sexually inappropriate, discriminatory, or intimidating conduct towards LACC students, student workers, or staff and disputed each of the District’s charges.  He contended that the District’s investigation and decision were replete with an obvious bias against him based on his gender and ethnicity.  Doe based this assertion on the fact that some of the complaining individuals used the term “macho” in describing his behavior.  AR 1849.

Doe claimed the District never brought to his attention that he was violating any rules or regulations. The ALJ noted, however, that the evidence established that he was counseled numerous times following complaints to the District.  AR 1849.

            Doe testified that he engaged in no blameworthy, wrongful, or inappropriate conduct at LACC and that there is nothing he would have done differently.  He described the charges against him as “utterly ridiculous” and stated he is simply “an outgoing person.” He blamed his dismissal on Students A.B., I.N., L.M., and Elias, Investigator Friedman, President Gallagher, Dean Yamanishi, and Garcia.  Doe insisted that these eight people were absolutely part of a conspiracy to get [him] fired” and he “could probably think of others.”  AR 1849. 

Doe asserted that Guardian Scholars counselor Garcia resented him because he was popular with students, had the biggest office, more grant money, and a tenure track position.  Doe contended that in 2018 Garcia and the students conspired to make false accusations against him. However, the evidence established that separate students raised complaints against Doe well before 2018.  Many of these students were unknown to each other and not aware that others had filed complaints.  AR 1850.

Doe also contended that each of the students who filed a complaint was either counseled by Garcia through the Guardian Scholars program or worked for her.  However, of the six student complainants, only Students I.N. and B.C. were affiliated with the Guardian Scholars program. The remaining four students were not affiliated with the Guardian Scholars program in any way.  AR 50.

Doe noted that there were students who did not cooperate with the investigation and/or did not testify at the hearing.  He also asserted that certain students interviewed by Investigator Friedman only supported some of the allegations made against him or stated that no one told them that Doe made them feel uncomfortable. This does not negate the direct, credible testimony of those individuals who did experience harassment, discrimination, or retaliation by Doe.  AR 1850.

Doe justified making physical contact with students by asserting that LACC had a “huggy culture.”  Several witnesses denied this, including Student Robles, who testified on behalf of Doe.  Robles opined that if a counselor engaged in “front hugs” with students or made comments about students’ appearances, such behavior would be unprofessional.  AR 1850-51.

Doe contended that no one accused him of engaging in any sexual behavior.  He did not concede that hugging is inappropriate without consent or if it makes the recipient uncomfortable.  Nor did Doe acknowledge he engaged in inappropriate touching other than hugging, such as grabbing a student’s elbow, placing his hand on a female student’s back or shoulders. AR 1851.

Doe’s testimony was inconsistent whether he hugged students.  He claimed that he is an affectionate person and would give hugs freely because LACC had a “huggy culture.”  He then claimed that he only engaged in high fives and fist bumps with students, except when a student asked for a hug, asserting that hugging is not something he would initiate.  Doe further claimed that he did hug students, but never hugged any of the complaining students.  Doe also testified that he only hugged students by giving them side hugs at graduation and award ceremonies.  He did not recall any other times he hugged students.  He later gave contradictory testimony: “I didn’t touch students in any way, appropriate or inappropriate.”  AR 1851.

Doe testified that it is appropriate for someone in his position to hug student workers, which contradicted his deposition testimony that it would not be appropriate for a counselor to hug students.  AR 1851. 

Doe fails to recognize the potential abuse of authority when a counselor and coordinator of a financial aid/supportive services program engages in physical contact with female students who need those services. The evidence established that Doe informed students they could jeopardize their access to vouchers for meals and books if they failed to show up for in-person meetings with him.  AR 1852.

In March 2017, Doe hired Student A.B. to be a student worker in the CAFYES program. The evidence established that he discussed A.B.’s appearance with Elias in selecting her as a CAFYES student worker.  AR 1852.  doe asserted that he hired A.B. at the recommendation of LACC bookstore manager Esther Sunday.  Sunday testified at the hearing and, while she recognized A.B.’s name, she did not recall anything else about her and did not confirm that she recommended to Doe that he hire A.B.  AR 1852.

Doe insisted that A.B. was rude, disrespectful, and a poor worker who was unproductive, inefficient, and had a negative attitude.  Her co-workers credibly disputed this description.  Doe contended that A.B. lodged a complaint against him after he informed her that he would dismiss her due to her poor job performance.  No documentation supports this assertion and Doe did not establish that he had the authority to dismiss student workers.  AR 1852.

Doe asserted that he never hugged A.B., kissed her on the forehead, or commented on her appearance.  He “absolutely never” told A.B. to “comb her nappy hair” because that would be “out of line and disrespectful.”  Doe also “never used the “N” word towards [A.B.] or anybody.”  AR 1853.

            Doe’s closing brief asserts that his comments to female students about their clothing, hair and makeup were justified because he was enforcing the LACC Employee Handbook dress code.  AR 1853.  However, a comment that a female student has a “nice ass,” assessing female students’ looks, staring at their bodies, or telling them they are gorgeous (or alternatively, “look like shit”) does not constitute enforcement of a dress code.  AR 1853.

Doe argued that his workplace comments were acceptable because they were “compliments and pleasantries” rather than negative remarks.  Numerous witnesses testified credibly that Doe used profanity, called women “bitches,” and made other inappropriate comments that were neither complimentary nor pleasant, including telling Student I.N. that she “looked like shit” and needed to dress better and wear makeup.  AR 1853.

Doe told A.B. that he had cropped certain female students out of a photograph because they are “ugly bitches.”  He also told A.B. that her hair was “nappy.” Doe disparaged the appearance of female students, threatened them into complying, and insulted them, while at the same time openly admiring other women’s bodies and commenting on their attractiveness.  AR 1853.

Doe’s insistence that he never referred to any woman as a “bitch” lacks credibility. There was substantial evidence from multiple sources that he did use the term in reference to more than one female.  AR 1854.

Doe testified that it would “absolutely” be okay to use the words “ass,” “bitch,” and “fuck” around students.  During cross-examination, Doe refused to confirm that he never used these words with student workers.  Doe attempted to justify his use of these words by asserting he did not use them with sexual intent or to refer to a sexual act.  AR 1854.

Doe testified that he had infrequent contact with Student I.N., only saw her approximately once a month, and never met with her alone.  He insisted that he was not retaliating against I.N. by insisting that she come to his office with a State Foster Care Verification form.  He continued to insist that a State-issued form is required by the CAFYES program because it is state-funded.  The evidence does not support that contention.  AR 1854.

Doe asserted that the District violated his due process rights by charging him with dishonesty for, among other things, lying in response to the complaints against him.  Dishonesty is an explicit statutory ground for dismissal. Doe cited no authority that he may not be deemed dishonest if the evidence establishes that he lied during the investigation, deposition, or at hearing.  AR 1854.

Doe characterized himself as a victim and argued that he was being unfairly targeted by the District because he is a whistleblower.  “I spoke up so they came to get me,” asserting that the LACC administration sought to discredit and then dismiss him because he questioned LACC’s expenditure of CAYFES program funds.  AR 1856.

On January 11, 2018, Doe asserted to EOPS/CAFYES Counselor Dovlatyan, Vice-President of Student Services Smith, and Dean Yamanishi that the CAFYES program was out of compliance with the Chancellor’s Office’s rules and regulations and students in the CAFYES program were not receiving all the services to which they were entitled by law.  AR 1856.

            Doe’s contentions appear to be based upon documents that state various services may be provided by the CAFYES program but do not state they are required.  Some of these items may be provided by CAFYES only “if budget permits” and/or “if approved by the Chancellor’s Office.”  AR 1856. 

            Doe asserted that he shared his concerns about the CAFYES program at the January 12, 2018 EOPS/CARE Region 7 meeting at Pasadena City College, and reiterated these points to Dean Yamanishi on January 16, 2018 and to Dovlatyan on January 25, 2018.  Doe testified that the student complaints against him “were simultaneously filed” after that date.  AR 1857.

Doe’s claim that he was dismissed in retaliation for being a whistleblower lacks credibility and is not persuasive. The student complaints were not simultaneously filed, and they also were lodged well before January 2018.  The students had no motive to retaliate against Doe for being a supposed whistleblower.  In addition, the students’ allegations describe a pattern of inappropriate behavior over an extensive period.  Their claims have added credibility because many of the students did not know each other or were unaware that others were making similar complaints against Doe.  AR 1857.

            Effective February 12, 2018, President Gallagher reassigned Doe.  He was directed to split his time between the CAFYES and EOPS programs as counselor and his duties as CAFYES Coordinator were terminated.  All CAFYES leadership responsibilities, including recruiting, staff supervision, drafting reports, and budgeting, were turned over to Dovlatyan.  AR 1858.

            The ALJ analyzed the Morrison factors.  AR 1859-60.   The ALJ also made credibility findings.  She found the testifying complaining witnesses to be credible and convincing, with no discernible motivation to fabricate their testimony, and that Doe’s testimony was implausible and inconsistent with his own testimony and that of other witnesses.  AR 1863. 

The ALJ found Doe guilty of immoral conduct (AR 1864-65), dishonesty (AR 1866), evident unfitness for service (AR 1867-69) persistent violation of laws or regulations (AR 1869-70), and willful refusal to obey laws and reasonable regulations (AR 1879-71).  She found cause to dismiss him for these charges under the Morrison factors.   The ALJ noted Doe’s lack of remorse and candor and found him unsuited to continue as a counselor.  Dismissal was the only appropriate remedy and the District’s decision to terminate his employment was sustained.  AR 1872.

On May 23, 2023, OAH served Doe notice that the ALJ had issued a decision upholding the District’s decision to terminate his employment.  AR 1874.

            E. Analysis

Petitioner Doe contends that the ALJ’s decision must be set aside because (1) it is not supported by the weight of the evidence, (2) the District improperly denied him the opportunity to cross-examine adverse witnesses and the ALJ improperly relied on hearsay summaries of the testimony of non-appearing witnesses, , and (3) the Morrison factors do not support his dismissal in light of the positive feedback he received on his student evaluations.

1. The Weight of the Evidence

Doe argues that the District’s presentation during the 18-day hearing was largely a repeat of Friedman’s one-sided investigation, but this time there was an opportunity for cross-examination and the presentation of new witnesses -- other students and staff who interacted with Doe on a daily basis and never heard so much as rumor that Petitioner had ever engaged in misconduct, let alone witnessed misconduct.  Accordingly, the ALJ committed an abuse of discretion by ignoring exculpatory evidence that eviscerated the false allegations against Doe.  This abuse of discretion was extremely prejudicial to Doe in that no rational person (or hearing officer) could conclude that he violated any applicable rule or policy.  Pet. Op. Br. at 18-19.

Petitioner Doe has the burden of proof.  Afford v. Pierno, supra, 27 Cal.App.3d at 691.  A reviewing court starts with a presumption that the record contains sufficient evidence to sustain every finding of fact.  Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881.  When a petitioner challenges an administrative decision as unsupported by the evidence, the petitioner must set forth all material evidence on the point and not merely their own evidence.  Id.  The burden to provide a fair summary “grows with the complexity of the record.”  Myers v. Trendwest Resorts, Inc., (2009) 178 Cal.App.4th 735, 739.  Unless this is done, the error is deemed to be waived.  Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at 881; Oak Valley Hosp. Dist. v. State Dept. of Health Care Services, (2020) 53 Cal.App.5th 212, 237. 

The administrative record covers 18 days of testimony and the ALJ issued a 51-page decision.  AR 1820-73.  The ALJ discussed the evidence in some detail, assessed the credibility of the various witnesses, including Doe, and issued a well-reasoned decision upholding the District’s intention to terminate him.  The court’s only criticism of the ALJ’s decision is that it does not identify the witnesses who testified and discuss their specific testimony, and it does not explain when the ALJ is relying on investigative witness interviews and their content.  The court can glean who testified from some of the credibility findings, but the court and parties would have been better served by a decision that provided this information.

Despite this criticism, Doe has the burden to present this information to the court in arguing that the weight of the evidence does not support the ALJ’s decision.  He fails to do so.  His argument does not set forth a full and fair statement of facts from the administrative record, and almost exclusively discusses the favorable testimony of his witnesses: LACC employees Lee, Sunday, Florese, Novoa, and Del Campo, intern Robles, and student worker Pitts.  Doe specifically fails to materially discuss the District’s evidence and how its witnesses impact the weight of evidence.

Doe inadvertently admits his failure in reply.  He acknowledges that he was accused by former student-employees A.B. and Elias, former CAFYES student I.N., CAFYES intern Sagrero, and EOPS student worker Medrano.  Reply at 4.  All these witnesses testified.  Garcia and President Gallagher also testified to their observations of his misconduct.  Yet, Doe failed to present any testimony of these seven witnesses, only noting that A.B. made a complaint and that Elias backed her allegations.  See Pet. Op. Br. at 12-13.[7]  This is woefully inadequate.

Because neither Doe nor the District has significantly discussed the evidence, the court deliberately has set forth the ALJ’s findings in considerable detail.  These findings reflect the witness testimony unless shown otherwise.

With this in mind, Doe’s reliance on his witnesses does not meet his burden of proof on the weight of the evidence.  The court acknowledges that it is difficult to prove a negative – in this case that Doe did not sexually harass or racially harass, female students.  In defending such an accusation, the court also acknowledges that it is useful to present testimony from witnesses who did not observe anything that was untoward.  Yet, Doe’s witnesses cannot carry the day.  All of Lee, Sunday, Flores, Novoa, and Del Campo were LACC employees.  In their roles, they may or may not have been in a position to observe Doe’s physical contact with female students.  Intern Robles and student worker Pitts may have been in a better position to observe such contact, but their testimony does not overcome the detailed observations set forth by the ALJ.  As the District argues, Doe’s witnesses only establish that there are employees and student workers within his orbit with whom he did not have problematic interactions. These witnesses do not refute the misconduct charged.  Opp. at 15.[8]

In reply, Doe argues that the ALJ’s decision is essentially a substantial evidence review that did not weigh the evidence and considered only evidence that supported Friedman’s Report.  Reply at 8.  The short answer to this argument is “how would the court know that from Doe’s presentation of evidence?” 

Doe also argues that “zero favorable witnesses were required here because the District and ALJ relied nearly solely on the hearsay ’evidence’ which as LACC admits, cannot support the findings and decision of the ALJ.”  Reply at 9.  There are two answers to this argument.  First, again how would the court know that the ALJ relied on hearsay?  Doe does not even identify or cite the hearsay evidence that he contends is “mountainous”.  Second, his argument ignores the testimony of A.B., Elias, I.N., Sagrero, Medrano, Garcia, and President Gallagher, which is not hearsay.

Doe has not shown that the ALJ’s findings are not supported by the weight of the evidence.

2. Doe Fails to Show that the ALJ’s Decision Improperly Relied on Hearsay

Doe notes that, in an administrative proceeding where a hearing officer “makes a decision based on a party’s testimony, the adversary is entitled to question his or her opponent.” Manufactured Home Communities, Inc. v. County of San Luis Obispo, (2008) 167 Cal.App.4th 705, 711 (cross-examination “essential” where the findings rely on witness testimony); Denny H. v. Superior Court, (2005) 131 Cal.App.4th 1501, 1513-14 (“In a contested hearing, the precise words and demeanor of a witness during direct as well as cross-examination bears on the credibility and weight the trier of fact accords the witness’s testimony.”).  Doe further notes that, while reasonable persons often rely on statements and reports, in the conduct of serious affairs a reasonable adjudicator “will not rely solely on written statements but will demand that witnesses be produced so that their credibility may be tested and their testimony weighed against conflicting evidence when their testimony appears readily available and there is no substantial reason why their testimony may not be produced.”  John A. v. San Bernardino City Unified School Dist., (1982) 33 Cal.3d 301, 307-08.  Pet. Op. Br. at 19-20.

Doe argues that the witness statements in Friedman’s Report (see AR 984) are all hearsay evidence.  Evid. Code §1200(a).[9]   The Report does not include original or firsthand statements from any of the witnesses but is comprised of summaries prepared by Friedman that consist of multiple levels of hearsay.  Mere uncorroborated hearsay does not constitute even substantial evidence, much less a preponderance of evidence.  In re Lucero L., (2000) 22 Cal.4th 1227, 1244-1245.  Reliance by the ALJ on hearsay evidence was insufficient to support the termination decision.  It was unfair for the District to rely on the unchallenged, unverified, unauthenticated written summaries of witness accounts rather than testimony.  AR 980-1346.  Doe was denied due process because he was not allowed to cross examine witnesses and the ALJ relied to excess upon stale, written testimony from witnesses who could appear and testify.  Pet. Op. Br. at 20-21.

As the District argues, while Doe repeatedly complains about the ALJ’s recourse to the investigative report, he fails to specify where this occurred.  Doe is obliged to cite to the hearsay and where the ALJ relied on it specifically.  Guthrey v. State of California, (1998) 63 Cal.App.4th 1108, 1115 (“It is the duty of counsel to refer the reviewing court to the portion of the record…”).  Doe’s generalized complaint, merely citing the existence of the Report is insufficient to discharge his obligation.  Opp. at 17-18.

Friedman’s Report obviously contains witness interviews, which would be hearsay.  However, Doe’s general statements that the District (and the ALJ) relied on witness summaries is insufficient for any inferences to be drawn.  What witness summaries?  Did the witnesses testify?  What did the witnesses say that differed from, or supplemented, witness testimony at the hearing?  Was the interview admissible as a party admission or other form of hearsay exception?  Doe does not say, and his arguments about hearsay fail for lack of specificity.

The District also acknowledges that there are hearsay witness statements in the Report,[10] but that does not make them inadmissible.  The Administrative Procedures Act (“APA”) prescribes the somewhat relaxed evidentiary standards of administrative adjudications to formal hearings, permitting admission and consideration of relevant evidence notwithstanding the “technical rules” of evidence.  Govt. Code §11513(c); see also Webster v. Board of Dental Examiners, (1941) 17 Cal.2d 534, 538.  Instead, evidence must be “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” Govt. Code §11513(c).  This standard permits flexible consideration of germane evidence by the administrative tribunal, including matter such as unsworn official reports containing percipient observations.  Hildebrand v. Department of Motor Vehicles, (2007) 152 Cal.App.4th 1562, 1570-72.  Hearsay also is treated in a flexible manner.  By itself, hearsay cannot be the sole evidence supporting a fact.  Govt. Code §11513(d).  But it can be considered to support and explain other admissible evidence.  Id.

To some extent at least, the Report’s witness statements supplement facts from other evidence. The ALJ considered testimony from complaining students, percipient witnesses, Friedman, LACC officials, cross-examination of Doe’s witnesses, and documentary evidence.     This blend of documentary sources and testimony satisfies the requirement for consideration of hearsay under Govt. Code section 11513(d).  

Moreover, the District points out that Doe had the broad discovery rights available for Tier I hearings, which authorize administrative litigants to conduct full civil discovery, call their own witnesses, and cross examine the witnesses of opposing parties.  Govt. Code §11513.  He had the right to call and cross-examine witnesses.  §87679; Govt. Code §11513(b).  Given the availability of discovery and witness cross-examination, it is difficult to imagine how Doe’s due process rights were substantively injured.  The ALJ expressly observed that, whatever the validity of Doe’s arguments about Friedman’s investigation, he suffered no lasting injury because he received due process at the hearing.  AR 1855.  Opp. at 16-17.

In reply, Doe argues that, while the technical rules of evidence are loosened in an administrative forum, the guarantees of the Education and Evidence Codes cannot be entirely disregarded where the ALJ parroted the Report and relied on hearsay while entirely disregarding Doe’s favorable witnesses.  He contends that the ALJ’s decision refers to the Report’s hearsay in paragraphs 7, 8, 10, 11, 12, 23, 35, 43, 44, 50, 51, 52, 54, 58, 59, 60, 61, 62, 63, and 67, and only nine paragraphs cite to the hearing transcript -- ¶¶ ¶ 42, 77, 78, 96, 107, 113, 114, 121, and 123.  This is true even though both parties cited to the hearing transcript extensively in their closing briefs.  AR 696-57, 772-803, 807-62.  Often the ALJ’s findings paragraphs are a mixture of hearsay from the Report (without citation) and references to testimony (without citation), so it is impossible to verify whether the conclusion is supported by the evidence.  Reply at 9-10.[11] 

As stated ante, the court agrees that the ALJ’s decision would have been better if it identified witness testimony and separated it from witness interviews and documentary evidence.  However, Doe cannot cure the defect of a generalized objection in his opening brief by citing specific paragraphs in reply.  New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded.  Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.  Nor does he adequately do so anyway.  His citation to purported reliance on hearsay in the ALJ’s decision does not make such reliance wrong.  Doe was obligated to show that the ALJ’s finding(s) were improperly based solely on hearsay in violation of Govt. Code §11513(d).  He has not done so.

3. The Morrison Factors

In Morrison, supra, 1 Cal.3d at 229-30, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Not every Morrison factor must be considered; a trier of fact may consider all of the factors that are relevant to the respective case.  Ibid.; West Valley-Mission College v. Concepcion, supra, 16 Cal.App.4th at 1777.

Doe argues that the only alleged conduct within the four years under section 87680 concerns I.N.  Despite I.N.’s frustration with Doe, he was evaluated by all students in the CAFYES Program in 2016 and 2017 and received 100% positive evaluations in 2016 and 99% positive evaluations in 2017.  AR 781.  Pet. Op. Br. at 21; Reply at 11-12.

Doe’s assertion about his positive student evaluations is insufficient to overcome the ALJ’s Morrison evaluation.  AR 1859-62.  This evidence relates mostly to Doe’s guilt and was considered by the ALJ.  See AR 1848.  To the extent that it bears on the Morrison factor of adverse effect on students or co-workers, the lack of an adverse effect on students in 2016 and 2017 does not affect the ALJ’s conclusion that Doe’s misconduct had a significant adverse impact on the complaining students, other students in the CAFYES program, student workers, and staff members.  AR 1860.

Although it also bears on guilt and not the Morrison analysis, Doe’s claim about section 87680 is not adequately shown.  Section 87680 provides that no decision of dismissal or suspension shall be made based on charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice.  The written notice delivered to the employee pursuant to section 87672 shall be deemed an accusation.  §87679.   The Statement of Charges was served on May 10, 2021.   AR 917.  Thus, any charges or evidence prior to May 10, 2017 were subject to exclusion at the hearing.  

Doe fails to demonstrate that he objected at the hearing to any evidence before May 10, 2017.  The exhaustion of administrative remedies doctrine includes issue exhaustion.  The agency must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which it has jurisdiction to act before it is raised in a judicial forum.  Hill RHF Housing Partners, L.P. v. City of Los Angeles, (2021), 12 Cal.5th 458, 479 (citation omitted).  The exact issue raised in the lawsuit must have been presented to the administrative agency.  Tahoe Vista Concerned Citizens v. County of Placer, (2000) 81 Cal.App.4^th 577, 594.  Doe’s failure to demonstrate exhaustion of the section 87679 issue at the hearing is a waiver of that claim.

Doe’s argument that only I.N.’s complaint fell within the four-year period also is incorrect.   The six student complaints were made in April, late May, and November 2017, and in January, July, and August 2018.  AR 1824.  Student I.N.’s complaint alleged misconduct between September 28, 2017 and November 8, 2017.  AR 1831.  A.B.’s informal complaint was made on May 25, 2017, and formally on June 1, 2017.   AR 1829.  S.M. alleged misconduct between November 2016 and July 2018.  AR 1832.  L.M. complained of misconduct between Doe’s hire date and July 2018.  AR 1832.  B.C. alleged misconduct between November 2016 and November 2017.  AR 1830-31.  Some of each complainant’s allegations were within the four-year period.

Additionally, Garcia observed misconduct on unstated dates and alleged personal discrimination and retaliation by Doe between February through November 2017.  AR 1833.  President Gallagher observed Doe’s flirtatious conduct in the Spring 2018.   AR 1826.  Elias worked with Doe until June 2017 and observed his misconduct.  AR 1837.  Doe further misappropriated student information during his administrative leave in 2018.  See AR 1848.  Some or all of this evidence was within the four-year period.[12]

To the extent that some of the charges and/or evidence fell outside the four-year period, Doe had the obligation to raise it before the ALJ and to show the same to the court.  He fails to do so.

            F. Conclusion

The Petition is denied.  The District’s counsel is ordered to prepare a proposed judgment, serve it on Doe’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for October 10, 2024 at 9:30 a.m.