Judge: Mary H. Strobel, Case: 21STCP02031, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCP02031    Hearing Date: October 13, 2022    Dept: 82

Petitioner Mollie Vehling (“Petitioner”) petitions for a writ of administrative mandate directing Respondent the Regents of the University of California (“Respondent”) “to set aside the Title IX administrative findings and decision imposed against Petitioner.”  (Pet. Prayer ¶ 1.)  

Background

Petitioner, Alan Robbins, and the “Absinthe” Show

Petitioner was employed by the University of California, Los Angeles, from September 1999 until she was terminated effective May 16, 2019.  At all material times, Petitioner held the title of Director, UCLA Spirit Squad.  (AR 4.)  She was responsible for the overall management and direction of the Squad, and she also assisted UCLA Development Officers in managing donor relationships to raise money for the Squad.  (Ibid.) 

            Alan Robbins, a 76-year-old former state senator, was one of the high-profile donors with whom Petitioner worked.  Robbins had been indicted in the 1970s, and acquitted, for having sex with two underage minor females.   Some Spirit Squad members thought he was creepy and had informed Petitioner they felt uncomfortable in his presence.  (AR 4-5; Opening Brief (“OB”) 8, citing record.)

            In the administrative decision upholding Petitioner’s termination (see AR 2-23), a hearing officer found that Petitioner was instructed by Associate Vice Chancellor Julie Sina in June 2018 that “Squad members were not to have contact with Alan Robbins.”[1]  (AR 5.)  Petitioner contends that direction was not given, while Respondent contends that it was. (See OB 10-11; Oppo. 4, citing AR 454-455; 477-478; 487-488, 490-492.) 

            In October 2018, Robbins reached out to Petitioner to ask whether Spirit Squad members would be interested in attending a “burlesque” adult-nature show known as “Absinthe” while they were at the Las Vegas Invitational men’s basketball tournament held on November 22-23, 2018. (OB 9, citing AR 1095-1111.)  Petitioner did not accompany the Squad on this trip, but she helped arrange the Squad’s attendance at the show.  (AR 6.)  Some Squad members were uncomfortable at the show, both because of its content and the presence of Robbins, and left early.   (AR 6-8)

Title IX Investigation

Subsequent to the Las Vegas trip, the UCLA Title IX office was notified that Squad members had experienced harassing behavior during this trip.  Petitioner was placed on paid administrative leave while the matter was investigated.  (AR 8.)  The matter was referred to the Staff Diversity & Affirmative Action/EEO Compliance Office (“SD&C”) for an investigation of whether Petitioner violated UCLA’s Sexual Violence and Sexual Harassment Policy (“SVSH Policy”).  (AR 1055.)  Respondent Adriana Ovalle-Stevenson, Complaint Resolution Officer of SD&C, interviewed Petitioner and 16 witnesses and prepared a report.  On March 20, 2019, after receiving comments from Petitioner on the information obtained in the investigation, Ovalle-Stevenson issued a lengthy confidential memorandum concluding that there was sufficient evidence to find Petitioner responsible for a violation of the SVSH policy.  (AR 1054-1093.)

UCLA Campus Human Resources Investigates Other Alleged Misconduct of Petitioner

            UCLA Campus Human Resources (“CHR”) also conducted an investigation into eligibility and scholarship violations, as well as Petitioner’s alleged violation of Sina’s no contact directive. (AR 9-63-64; 1171-1209.)  On April 29, 2019, Kathleen Shiroma, Employee Relations Consultant CHR, issued her report finding that Petitioner had violated Spirit Squad participation requirements, violated financial aid requirements, and had violated the no-contact directive.  (AR 10, 1171-1209.) 

Termination, Administrative Appeal, and Decision Denying Appeal

            Following receipt of Ovalle-Stevenson’s report and CHR’s report, UCLA decided that it would terminate Petitioner’s employment and gave her a notice of intent to terminate on April 18, 2019.  Petitioner did not request to have an in-person Skelly hearing.  By letter dated May 16, 2019, Petitioner was notified that she was terminated effective May 17, 2019.  (AR 10-11, 1210-17.)

            Petitioner timely requested review of her termination pursuant to the provisions of the University of California Policy PPSM-70, which governs complaint resolution with respect to certain professional and managerial employees.  (AR 11, 2250.)  The matter was processed through several “steps” and eventually an administrative hearing was held on multiple dates before hearing officer Walter F. Daugherty.  (AR 11, 25-907.)  On May 21, 2021, the hearing officer issued a lengthy decision finding that the termination of Petitioner did not violate university policies and denying Petitioner’s appeal.  (AR 1-24.)

Writ Proceedings

            On June 25, 2021, Petitioner filed a petition for writ of administrative mandate against Respondent the Regents of the University of California, as well as UCLA Title IX Office and Adriana Ovalle-Stevenson, in her official capacity as Title IX Complaint Resolution Officer.

            Respondent has answered the petition.    

            On June 6, 2022, Petitioner filed her opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

Standard of Review

While there is some lack of clarity as to what decision or action Petitioner challenges (see below), the petition is pleaded as a petition for administrative mandate pursuant to CCP section 1094.5.  A petition under section 1094.5 may be brought to inquire “into the validity of any final administrative order or decision.”  (§ 1094.5(a).) “[J]udicial review via administrative mandate is available ‘only if the decision[] resulted from a 'proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.’”  (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) 

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion.  An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)

“‘Article IX, section 9 [of the California Constitution] grants the [R]egents broad powers to organize and govern the university and limits the Legislature's power to regulate either the university or the [R]egents. This contrasts with the comprehensive power of regulation the Legislature possesses over other state agencies.’ [Citation.] This grant of constitutional power to the University includes the grant of quasi-judicial powers, a view that is generally accepted in our jurisprudence.”  (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 889.)  Based on this grant of self-governance to the Regents, the substantial evidence standard of review arguably applies to its administrative findings in this case.  (See Do v. Regents of the Univ. of Cal. (2013) 216 Cal.App.4th 1474, 1486-1487 [staff discipline matters fall within state university’s powers of autonomy in self-governance].)  However, the court does not decide that issue at this time because, as discussed below, an important threshold issue regarding the scope of the petition must first be addressed by the parties. 

Analysis  

            The court does not reach the merits of the petition at this time because there are threshold issues that must first be addressed by the parties. 

Record Redactions

The administrative record contains numerous redactions, including of witness names and other information.  Counsel should explain at the hearing whether all of the redactions to the record were made during the administrative proceedings.  If the parties made redactions to the administrative record in this civil court proceeding, Rules of Court, Rules 2.550 and 2.551 may apply. 

Further, the numerous redactions make it difficult for the court to review the parties’ legal arguments and the administrative findings.  The parties’ legal briefs refer to witnesses or other persons by actual names, but the names are redacted in the pages cited from the record.  The court cannot readily determine from the record which witness is testifying or what person is being discussed in certain relevant parts of the administrative record.

The parties may be able to address this issue by a stipulation that specifies the witnesses testifying or persons being discussed in the redactions.  The stipulation should include the redactions that are material to the parties’ arguments, including, but not limited to, the following cited pages from the record:

·         Record citations regarding alleged directive from Dr. Sina regarding Alan Robbins.  (See OB 10, citing AR 619-623, 78, 110, 491-493; Oppo. 4, citing AR 77-79; 454-455; 477-478; 487-488; 490-492, 920-921.) 

·         Testimony of or about Michael Catbagan.  (OB 11, citing 850-892; Oppo. 7:22-8:5, citing 64, 130, 853-855, 891-892.)

Scope of Petition 

In the petition, Petitioner seeks a writ directing Respondent Regents “to set aside the Title IX administrative findings and decision imposed against Petitioner.”  (Pet. Prayer ¶ 1.)  While not entirely clear, that prayer suggests that Petitioner challenges “Title IX” findings made by Ovalle-Stevenson, hearing officer Daugherty, or both. In the opening brief, Petitioner argued that the independent judgment test applies “[w]hen ‘discipline imposed on public employees affects their fundamental vested right in employment,’ such as by terminating employment as occurred here ….”  (OB 18:14-19.)  That statement implies that Petitioner challenged not only the Title IX findings, but also Respondent’s decision to terminate Petitioner.  The opening brief also discussed at length the Campus Human Resources investigation, suggesting that Petitioner may challenge the CHR investigation or related findings in the termination decision.  (OB 14.) 

In opposition, Respondent defends the decision to terminate Petitioner, which was upheld on appeal by hearing officer Daugherty after an administrative hearing.  (See Oppo. 8-15.)  Respondent argues that the findings of Daugherty are supported by substantial evidence.  Respondent does not specifically defend the findings made in the investigation report of Ovalle-Stevenson.

However, in reply, Petitioner states that she “seeks review of the decision by the UCLA Title IX Office, Title IX investigator/adjudicator Adriana Ovalle-Stevenson” and “[t]he administrative findings and decision under review by this Court is the final decision made by Title IX investigator/adjudicator Adriana Ovalle-Stevenson that Ms. Vehling sexually harassed several UCLA Spirit Squad members in Las Vegas, when she was in San Diego.”  (Reply 4.) 

Later, Petitioner states: “Instead of addressing the arguments raised by Ms. Vehling in her writ petition and Opening Brief regarding the Title IX investigation and adjudication under the SVSH Policy, Respondents argue that the Step III Hearing Officer in a separate Complaint Resolution process conducted by the University in accordance with PPSM-70 did not abuse discretion in determining Ms. Vehling’s employment was appropriately terminated. (Opp. pp. 10-15.) … Here, Ms. Vehling challenges the underlying SVSH Policy violation decision of the Title IX investigator/adjudicator Adriana Ovalle-Stevenson (AR 923), -- a decision from which no administrative appeal was available, and which was not reviewed by the Step III Hearing Officer.”  (Reply 10.)  By contrast, it appears Respondent may contend that the Hearing Officer did in fact review de novo the Title IX violation findings.  (Oppo. p. 11.)

Because the petition and opening brief discussed not only Ovalle-Stevenson’s findings, but also the CHR investigation and the termination decision, the court requires clarification from Petitioner’s counsel at the hearing what specific administrative action(s) she challenges in this writ action.  If Petitioner does not challenge Respondent’s decision to terminate her employment, including the findings made by hearing officer Daugherty (AR 2-24), Petitioner’s counsel should state so clearly on the record.  In that event, Petitioner should also clarify whether she is seeking to overturn this finding without contending it has a consequential effect on her termination.   

If the challenge is so limited, the court is inclined to authorize Respondent to file a supplemental opposition brief.  Petitioner may file a supplemental reply to the supplemental opposition.  In the parties’ supplemental brief, the parties should address, among any other relevant issues, whether the investigation findings of Ovalle-Stevenson are a final administrative decision subject to judicial review under CCP section 1094.5.

Conclusion

The hearing on the writ petition will be continued to a new date.