Judge: Mary H. Strobel, Case: 21STCP02031, Date: 2023-02-02 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02031    Hearing Date: February 2, 2023    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.)  At the October 13, 2022, hearing, Petitioner’s counsel clarified that Petitioner is challenging the termination decision (the final decision after the appeal) made by Hearing Officer Dougherty.  (Minute Order dated 10/13/22.)  The court will deny the petition for the reasons discussed below. 

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.)

            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.”  (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’s employment was subject to The Regents’ Personnel Policies for Staff Members (“PPSM”). (See AR 2250-2284.) PPSM-64 permits termination due to “misconduct or failure to maintain appropriate work performance standards.”  (AR 2277.)  PPSM-62 discusses types of corrective action and states that immediate termination may be permissible “in situations of serious misconduct or failure to maintain acceptable work performance standards.”  (AR 12; 2287.)

            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 (hereafter “Hearing Officer”).  (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.

            On October 13, 2022, the petition came for hearing before the court.  The court continued the hearing so the parties could address issues related to the redaction of student names from the record.  The court ordered no further briefing for the writ petition.

            On December 23, 2022, Respondent filed its motion to seal.  The court received Petitioner’s opposition, Respondent’s reply, and the unredacted record filed conditionally under seal. 

            On January 19, 2023, the court granted in part and denied in part Respondent’s motion to seal.  Respondent subsequently lodged a redacted record on USB flash drive. 

Standard of Review

The petition is pleaded as a petition for administrative mandate pursuant to CCP section 1094.5.  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 applies to all administrative findings of Regents in this case, including those of hearing officer Daugherty.  (See AR 1-23; 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].) 

To the extent Petitioner argues to the contrary, his arguments are not persuasive.   (See Opening Brief (“OB”) 18; but see Reply OB 19 and 13:2-9 [discussing substantial evidence standard].)  Petitioner does not address Do v. Regents, which held that the substantial evidence test applies “for an employee's challenge of the administrative decisions of a constitutional agency that were rendered in a quasi-judicial forum.” (Do v. Regents, supra, 216 Cal.App.4th at 1486-1487.)  Petitioner cites no conflicting authority on this issue.  Nor has Petitioner disputed that Respondent is a constitutional agency subject to the standard of review discussed in Do v. Regents.  Accordingly, the court applies the substantial evidence test to the Hearing Officer’s fact findings. 

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.)  Under the substantial evidence test, “[c]ourts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.”  (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)   

A public agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)  “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.”  (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)   The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support his contentions.  (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.)  A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) 

When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)  “[T]he challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging …. And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board …. Rather, the challenger must explain why that evidence is insufficient to support that finding.”  (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law subject to independent review.”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)  “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.”  (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) 

Analysis  

Scope of Petition: Petitioner Challenges the Termination Decision of Hearing Officer Dougherty

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, but may also challenge the final termination decision made by Hearing Officer Daugherty.  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.)  Petitioner also argued that Respondent’s arguments concerning PPSM-62 and PPSM-64, the policies upon which the termination decision were based, were “irrelevant.”  (Reply 10.)  Thus, the reply strongly suggested Petitioner challenged only the investigation decision of Ovalle-Stevenson.  However, at the October 13, 2022, hearing, Petitioner’s counsel clarified that Petitioner is challenging the termination decision (the final decision after the appeal) made by Hearing Officer Dougherty.  (Minute Order dated 10/13/22.)

Substantial Evidence Support the Hearing Officer’s Findings that Petitioner Engaged in Misconduct

On May 21, 2021, the Hearing Officer issued a lengthy decision finding that the termination of Petitioner did not violate university policies related to termination of employment (PPSM-62 and PPSM-64) and denying Petitioner’s appeal.  (AR 1-24.)

In concluding that the termination of Petitioner’s employment was consistent with university policy, the Hearing Officer considered several allegations against Petitioner.  The Hearing Officer found that Petitioner’s actions related to the “Absinthe” show in Las Vegas violated the SVSH policy.  (AR 15-21.)  He found that Petitioner violated the Squad's participation requirements and the University's financial aid requirements when she allowed Catbagan to join the squad when he was an “ineligible student.”  (AR 21-22.)  He also found that, in connection with the Absinthe show, Petitioner did not comply with a directive of Sina not to allow Squad members to have contact with Robbins.  (AR 15-16, 22.)  Finally, the Hearing Officer found that “[e]ven assuming for purposes of analysis that the Complainant's role in the ‘Absinthe’ Show incident was not violative of the SVSH Policy, it amounted to misconduct as it allowed members of the Squad to be placed in a situation that was for at least two members extremely traumatic and in which no student should be subjected.”  (AR 23.)

Termination Decision Was Not Contingent Upon Violation of SVSH Policy

Petitioner challenges the finding she violated the SVSH Policy in her actions related to the Absinthe show.  (OB 19-20.)  However, under CCP section 1094.5, the court reviews the entire administrative decision, and the petitioner is only entitled to relief if a prejudicial abuse of discretion is shown.  (See Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 [In a mandate proceeding, “error of law is not reversible unless, on an examination of the record, it appears to have resulted in a miscarriage of justice.”].) 

The Hearing Officer expressly concluded that Petitioner was subject to termination under PPSM-62 and PPSM-64 even if her “role in the ‘Absinthe’ Show incident was not violative of the SVSH Policy.”  (AR 23.)  Petitioner fails to directly address that finding, as framed by the Hearing Officer, in her writ briefs.  Since the administrative decision was not contingent upon a finding of a violation of the SVSH Policy, Petitioner’s arguments about the SVSH Policy cannot establish a prejudicial abuse of discretion in the decision.  As discussed below, the court concludes that the Hearing Officer’s other findings are supported by substantial evidence.  

Substantial Evidence Supports the Findings that Petitioner Knew of Squad Members’ Concerns about Robbins, and Disobeyed a Directive of Vice Chancellor Sina that Squad Members Were Not to Have Contact with Robbins

Before analyzing whether Petitioner violated the SHSH Policy, the Hearing Officer first found as “lynchpin” issues that Petitioner (1) knew of concerns regarding donor Robbins before the Absinthe show; and (2) disobeyed a directive of Vice Chancellor Sina that Squad members were not to have contact with Robbins.  (AR 15-17.)  Petitioner does not address those findings in the “Argument” section of her opening brief or contend they are not supported by substantial evidence.  (OB 19-20.)  She does provide some discussion of relevant evidence for these findings in the “Factual Summary” of the opening brief and in a reply argument about the SVSH Policy.  (OB 7-11; Reply 5-9.) 

Substantial evidence supports the finding that Petitioner knew of the concerns of Squad members about Robbins prior to the Absinthe show.  Sina testified that Petitioner told her at a meeting in June 2018 that Squad members were uncomfortable with Robbins, including because they felt he would invade their personal space and put his arms around them.  (AR 454-455.)  Witness C, a former captain of the Squad, also testified that it was well known that certain Squad members thought Robbins was “creepy.”  Witness C told Petitioner that one Squad member (Witness E) thought Robbins was creepy and did not like interacting with him.  (AR 599-600; see also AR 1054-1170 [summary of witness statements from Title IX investigation].)  Sina’s and Witness C’s testimonies are substantial evidence that, prior to November 2018, Petitioner knew some Squad members had concerns about interactions with Robbins. 

Substantial evidence also supports the findings that Sina gave Petitioner a directive that Squad members were not to have contact with Robbins, and that Petitioner disobeyed that directive.  In June 2018, Petitioner had a conversation with Sina, regarding Dr. Bill Dorfman, a UCLA donor, regarding inappropriate interactions with the UCLA Student Alumni Association (SAA). (AR 477-479.) Sina testified that, at that meeting in June 2018, she asked Petitioner whether there were any concerns about other donors. (AR 454-455; 487-488.) Petitioner said “yes,” the Squad members had concerns about Robbins. (Ibid.; AR 488-489.) Sina testified that she then instructed Petitioner not to allow interactions between Squad members and Robbins. (Ibid.) Sina testified she then told another employee, Melanie Burzynski, that she had told Petitioner “that the Spirit Squad was no longer to have any contact or interaction with Mr. Robbins.” (AR 490-491; 492:5-17; 920-921 [identifying Burzynski as Witness 3]; 1067-68 [summary of Witness 3’s interview].)  In violation of this directive, Petitioner allowed the Absinthe event with Robbins to occur and placed the event on the official trip schedule for the Squad.  (AR 6-7, 15-20, 774-775.) 

Petitioner cites to her own testimony that Sina did not give a directive to ensure no contact between Squad members and Robbins.  (OB 10, citing AR 536, 619-623.)  Petitioner also cites evidence that Sina did not request a written report concerning interactions with Robbins or call Robbins to discuss the complaints, as she did for Dr. Dorfman.  She also cites evidence that Sina observed Robbins at UCLA events attended by the Squad after June 2018.  (OB 10-11, citing AR 479-480, 1312-1315, 574-576, 583, 623.) 

The Hearing Officer explained why he credited Sina’s testimony about the directive over that of Petitioner’s, noting a lack of evidence that Sina had any motivation to fabricate her account while Petitioner “had the greater interest in the outcome of this hearing.”  (AR 16-17.)  While the Hearing Officer was not required to credit Sina’s testimony over that of Petitioner, the evidence summarized above, including Sina’s testimony and corroborating witness summaries, is substantial evidence in support of his credibility determination.  (See People v. Barnwell (2007) 41 Cal.4th 1038, 1054 [testimony of a single witness may constitute substantial evidence, even if there is countervailing evidence].) The court cannot reweigh the evidence under the substantial evidence standard of review. 

Substantial evidence supports the Hearing Officer’s findings that Petitioner knew of concerns regarding donor Robbins before the Absinthe show; and disobeyed a directive of Vice Chancellor Sina that Squad members were not to have contact with Robbins.  (AR 15-17.)  Disobeying a superior’s directive reasonably qualifies as misconduct and failure to maintain appropriate work performance standards under PPSM-62 and PPSM-64.  Petitioner develops no argument to the contrary. 

Substantial Evidence Supports the Finding that Petitioner’s Actions Related to the Absinthe Show Were Misconduct

The Hearing Officer found that “[e]ven assuming for purposes of analysis that the Complainant's role in the ‘Absinthe’ Show incident was not violative of the SVSH Policy, it amounted to misconduct as it allowed members of the Squad to be placed in a situation that was for at least two members extremely traumatic and in which no student should be subjected.”  (AR 23.)  Petitioner has not addressed that finding in her legal briefs. 

The court concludes that substantial evidence supports the finding that Petitioner’s actions related to the Absinthe show amounted to misconduct.  (AR 23.)  PPSM-64 permits termination due to “misconduct or failure to maintain appropriate work performance standards.”  (AR 2277.)  As discussed, substantial evidence supports the finding that Petitioner disobeyed a directive from Vice Chancellor Sina when she allowed Squad members to attend the Absinthe show.  That finding, in itself, shows Petitioner committed misconduct in her actions related to the Absinthe show. 

Furthermore, substantial evidence shows the following.  Petitioner was the Squad director and had responsibility for the Squad members and for coordinating the Las Vegas trip.  Petitioner encouraged Squad members to attend the Absinthe show and put the show on the official trip schedule.  (AR 270, 415-418, 548-549, 774-775, 1054-1170.)   Some Squad members felt they had no choice but to attend the show.  (AR 273-274, 416.) The emcee directed jokes at Squad members, calling them lesbians and “pussy-eaters” and making them uncomfortable. (AR 277-279.) Some routines involved a woman dancing in a Gorilla suit, and who stripped down to just pasties and a G-string.  (AR 279-287, 434, 2498-99.)  Despite Sina’s directive, Robbins was sitting next to the Squad members during the show. (AR 279:5-22; 320-321.)  In subsequent discussions with the Squad members about the Absinthe show, Petitioner focused on Robbins’ feelings and failed to recognize or pay attention to the students’ feelings, even though Petitioner knew Squad members felt uncomfortable at the Absinthe show and with Robbins present.  (AR 283-284, 383, 792, 1139-40.) 

The hearing officer could reasonably conclude disobeying a directive of a supervisor and placing students in a situation whether they felt uncomfortable because of the presence of Robbins and the sexual content of the Absinthe show constitutes misconduct given Petitioner’s responsibility for the Squad members.

Petitioner contends that Robbins “is a 76- year-old germaphobe who has a service dog to detect chemicals and does not touch people unnecessarily, if ever.”  (OB 7-8; Reply 8:5-7.)  However, substantial evidence supports that Squad members were uncomfortable with Robbins, including because they felt he would invade their personal space and put his arms around them.  (AR 454-455, 282; see also AR 262-263, 298-299.)  Under substantial evidence review, Petitioner’s cited evidence does not undermine the findings. 

Substantial evidence supports the findings that Petitioner engaged in misconduct under University policy when she knew of the students’ concerns with Robbins and still chose to put them in an uncomfortable and vulnerable situation by encouraging them to attend the Absinthe show, and when she disobeyed Sina’s directive to ensure no interactions between the Squad members and Robbins. 

Substantial Evidence Supports the Findings that Petitioner Improperly Allowed Catbagan to Join the Squad

In the “Argument” section of her brief, Petitioner does not directly challenge the findings that she improperly allowed Catbagan to join the Squad, in violation of the Squad’s participation requirements and UCLA’s financial aid requirements.  (AR 21-22; OB 19-20.)  However, she does discuss evidence related to these findings in other parts of her briefs, which the court has considered.  (OB 11, 14; Reply 10-11.) 

Substantial evidence supports these findings.  A Squad member must be enrolled full-time, defined as a minimum load of 12 units, and maintain an overall 2.5 grade point average.  (AR 21, 130, 853, 1186.)  Petitioner was responsible for ensuring these requirements were met.  (AR 130-131.)  Catbagan testified that he was not a full-time student in Fall 2018 with 12 or more units.  (AR 853.)  Catbagan testified that Petitioner nonetheless told him if he enrolled in only one class, she could obtain full-time student status for him.  (AR 854-855; see also AR 157.)  Catbagan confirmed his testimony upon questioning from the Hearing Officer.  (AR 854-855.)  Catbagan testified that he stayed at UCLA based on Petitioner’s promises.  (AR 856-857, 891.)  Based on this evidence, the Hearing Officer could reasonably conclude that Petitioner violated the Squad participation requirements when she allowed Catbagain to join the Squad. 

Petitioner also awarded Catbagan a scholarship for Squad participation.  (AR 858-859, 895-896.)   Testimony of UCLA employees supports that Petitioner determined the amount of scholarship fund and submitted information about Catbagan to the financial aid office to obtain the scholarship for Catbagan.  (AR 138, 87; see also AR 1721.)  Catbagan was not eligible for the scholarship during the period of time he did not satisfy Squad participation requirements.  (AR 138.)  The Hearing Officer could reasonably conclude from the evidence that Petitioner violated UCLA financial aid requirements.  (AR 22.) 

The court has considered Petitioner’s record citations about these findings.  (See OB 11, 14; Reply 10-11.)  Petitioner cites her own testimony that she believed Catbagan was enrolled in sufficient classes at the start of Fall 2018 to meet the Squad participation requirements.  (AR 563, 570.)  Petitioner’s testimony conflicts with that of Catbagan, summarized above.  The Hearing Officer credited Catbagan, who had “no apparent interest in the outcome of this hearing.”  (AR 21.)  Catbagan’s testimony is substantial evidence in support of the decision.

Petitioner cites testimony of Kathleen Shiroma, UCLA Employee Relations Consultant, and a footnote in her investigation report stating that an exception to the financial aid requirement was not needed because Catbagan was waitlisted for an additional course, placing him above a six-unit eligibility requirement for scholarship eligibility.  (AR 105, 2089, fn. 4.)  However, that same evidence also supports that Catbagan was not eligible when Petitioner accepted Catbagan onto the Squad, and that Petitioner knew this.  (Ibid.)  Accordingly, this evidence does not undermine the Hearing Officer’s findings under substantial evidence review.

Petitioner argues that “[e]ven if, for some reason, Michael Catbagan did not meet the technical requirements for Spirit Squad eligibility, exceptions could be granted.”  (Reply 11:12-16, citing AR 173-174, 571, 1205, 2089.)  Petitioner has not cited any evidence that she, as the Squad director, had authority to grant exceptions to the Squad participation or financial aid requirements.  Evidence that Vice Chancellor Sina or Alumni Affairs have granted exceptions does not support Petitioner’s position.  (See e.g. AR 173-174 [discussing one-time exception granted by Vice Chancellor Sina for student with mental health challenges].) 

            Substantial evidence supports the findings that Petitioner improperly allowed Catbagan to join the Squad, in violation of the Squad’s participation requirements and UCLA’s financial aid requirements.  (AR 21-22.)  Petitioner does not argue that these actions do not qualify as misconduct under PPSM-62 and PPSM-64.

Substantial Evidence Does Not Support the Finding that Petitioner Violated the SVSH Policy

            The Hearing Officer found that Petitioner’s actions related to the “Absinthe” show in Las Vegas violated the SVSH Policy.  He found that “actions were severe in that they resulted in substantial trauma and upset to at least two members of the Squad.”  (AR 20.) 

            The SVSH Policy defines “sexual harassment,” in relevant part, as follows:

a.    Sexual Harassment is unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature when:      

….¶

ii. Hostile Environment: such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person's participation in or benefit from the education, employment or other programs and services of the University and creates an environment that a reasonable person would find to be intimidating or offensive.

b. Consideration is given to the totality of the circumstances in which the conduct occurred. Sexual harassment may include incidents:

i.              between any members of the University community, including faculty and other academic appointees, staff, student employees, students, coaches, residents, interns, and non-student or non-employee participants in University programs (e.g., vendors, contractors, visitors, and patients);

ii.            in hierarchical relationships and between peers;

….¶

(AR 1030.) 

Petitioner argues that she “cannot be responsible for sexually harassing members of the Spirit Squad because [she] did not make unwelcome sexual advances or unwelcome requests for sexual favors toward members of the Spirit Squad, nor did she engage in other unwelcome verbal, nonverbal or physical conduct of a sexual nature toward members of the Spirit Squad.”  (OB 20.) 

As Petitioner acknowledges, the pertinent issue is whether prohibited conduct under the SVSH Policy could include arranging a Squad event at the Absinthe show and with Robbins present.  (OB 20:7-9.)  Relatedly, Petitioner argues: “The SVSH Policy provides no notice that Prohibited Conduct includes placing a person in a situation where they could possibly experience sexual harassment perpetrated by another person or people.  Mollie Vehling had no notice that merely extending an invitation for Spirit Squad members to attend the ‘Absinthe’ show at Caesar’s Palace could subject her to charges for sexual harassment and end her 19-year career with the UCLA Spirit Squad.”  (OB 20:20-24.)

Respondent has not directly addressed these arguments in opposition, which could be viewed as a concession.  (See Oppo. 13-14; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)  Respondent argues Petitioner engaged in misconduct under PPSM-64 “by organizing and encouraging the Squad members to attend the Absinthe show with Robbins.”  (Oppo. 13.)  However, Respondent does not develop an argument that the language of the SVSH Policy reasonably encompassed Petitioner’s actions related to the Absinthe show.  (See OB 13:13-20 and 13:21-14:18.) 

Petitioner notes that Administrative Vice Chancellor Michael Beck found “no evidence that indicates [Robbins] engaged in sexual harassment of the Spirt Squad.”  (AR 1547; see OB 20.)  While Beck found that Robbins used his influence as a donor to request that Squad members attend the Absinthe show, “where the stage performers were semi-nude,” Beck did not find that such conduct was sexual harassment.  (AR 1548.) 

Under these circumstances, substantial evidence does not support the Hearing Officer’s finding that Petitioner violated the sexual harassment policy.  The Hearing Officer did not identify any conduct of Petitioner which constituted “unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature” nor is there evidence in the record to support that finding.  The Hearing Officer did not find that Petitioner’s conduct violated the SVSH policy under an aiding and abetting theory – nor could he have considering the University found no evidence Robbins engaged in sexual harassment of the Spirit Squad.  Nonetheless, the Hearing Officer expressly found that termination was appropriate even if there was no violation of the SVSH Policy.  Substantial evidence supports this conclusion.  Thus the court’s finding of a lack of substantial evidence that Petitioner violated the SVSH policy does not mean the Hearing Officer’s decision upholding the termination should be overturned.  The Hearing Officer’s decision is supported by substantial evidence with respect to his other findings of misconduct, including those related to the Absinthe event.

Propriety of the Penalty

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.”  (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)  “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) 

In assessing the appropriate penalty, the Hearing Officer wrote: “Even assuming for purposes of analysis that the Complainant's role in the ‘Absinthe’ Show incident was not violative of the SVSH Policy, it amounted to misconduct as it allowed members of the Squad to be placed in a situation that was for at least two members extremely traumatic and in which no student should be subjected. When the three matters of the Complainant's sustained misconduct are viewed and weighed in their totality, it is concluded that the Complainant had engaged in misconduct for which it cannot be concluded that the University's decision to impose the penalty of termination was arbitrary, capricious or discriminatory such that its decision was unreasonable. On the contrary, the University's termination decision manifested a reasonable exercise of its right to impose the termination penalty consistent with PPSM-62 and PPSM-64.”  (AR 23.)

Based on the Hearing Officer’s findings discussed above, including that Petitioner disobeyed Sina’s directive, placed Squad members in an unnecessarily upsetting situation at the Absinthe show with Robbins, and violated participation requirements and  financial aid requirements when she allowed Catbagan to join the squad, the Hearing Officer could reasonably conclude that Petitioner engaged in “serious misconduct or failure to maintain acceptable work performance standards.”  (AR 12; 2287.)  Accordingly, termination was a reasonable penalty under UCLA policies. 

Petitioner Received Fair Hearing and Process

Under CCP section 1094.5(b), the court’s inquiry extends to “whether there was a fair trial.”  “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’”  (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.)  “A university is bound by its own policies and procedures.”  (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.)  “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062.) 

Here, Petitioner received a Notice of Intent to Terminate and an opportunity to provide her response in writing or in person. (AR 1211-1215.)  Petitioner submitted an extensive written response, through her counsel. (AR 1354-1545.) Her response was considered before a final decision was made. (AR 1217.) Under University policy, she was also afforded a full evidentiary hearing to challenge her termination in front of a neutral, third-party Hearing Officer who received testimony from witnesses, documentary evidence, and permitted examination and cross-examination of all witnesses and objections to evidence. (AR 1-907.)  The Hearing Officer conducted a de novo review of the termination decision.  (AR 14.)  This process is consistent with fair process principles.  Petitioner received notice and opportunity to respond to the charges against her at a full evidentiary hearing, and the termination decision was reviewed by a neutral adjudicator who made findings of fact.  

In the “Argument” section of her opening brief, Petitioner has not developed an argument about the fairness of the full administrative process, including the de novo hearing before the Hearing Officer.  (OB 19-20.)  In the “Factual Summary” of her opening brief, Petitioner seems to challenge the fairness of the Title IX investigation process.  (OB 11-16.)  However, at no point does Petitioner explain how her contentions could establish unfairness when the entire process is considered.  

Petitioner states that “throughout the UCLA Title IX investigation, [she] was denied access to her work emails, work phone, and work files so she could respond to the investigator, despite her requests for access.”  (OB 12, citing AR 1222-1224; AR 1358; AR 528; AR 531-532; AR 541.)  Petitioner contends that she “was only provided limited access to a redacted copy of evidence for three days, through an online portal that allowed for viewing one page at a time but no printing, copying, or downloading, in order to prepare a response to the evidence.”  (OB 12, citing AR 642-643; AR 953; AR 958.)  Petitioner contends that redactions were made to some evidence and witness names were redacted.  (OB 12.)  She also contends that Title IX investigator Ovalle-Stevenson did not speak to five of the witnesses proposed by Petitioner.  (OB 12-13.)  Petitioner argues that UCLA previously used a single investigator model for Title IX adjudications.  (OB 15-16.) 

“A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.”  (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)    Accordingly, the court is not bound by the Hearing Officer’s determination that the process was fair.  (See AR 13-14.)

Having considered Petitioner’s arguments and record citations de novo, the court reaches the same conclusion as the Hearing Officer.  Petitioner’s arguments about a single investigator model are inapposite, as she received a full evidentiary hearing before a neutral Hearing Officer, who was not the investigator.  In addition, Petitioner was not an accused student for Title IX purposes, but an employee whose misconduct was evaluated for possible discipline under the staff policy (here, PPSM 70).  Accordingly, fairness principles that may apply to students are not controlling.  Petitioner admittedly had three, paid work days to review and respond to the evidence in the Title IX investigation. (AR 777:7-13, 640-642; see also 201-204; 235:6-10.) Petitioner admitted she was “able to identify the names of a majority of the witnesses,” even though their names were redacted. (AR 1324; 777:14-20.) 

Even if there was some procedural irregularity in the Title IX investigation, Petitioner has not shown any prejudice.  Procedural errors, “even if proved, are subject to a harmless error analysis.”  (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)  “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.”  (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.) 

Here, as discussed, Petitioner received a lengthy evidentiary hearing before a neutral Hearing Officer.  Petitioner could call witnesses and submit documentary evidence for that hearing.  Petitioner has not identified any exculpatory evidence that she believed she was not able to access from her work email or phone and submit at the hearing.  Petitioner admits she was able to “review emails relating to Alan Robbins while being monitored during her interview with Title IX investigator Ovalle-Stevenson on December 13, 2018.”  (Reply 11, citing AR 617.)  Nor has Petitioner identified any prejudice from redactions in the record, as Petitioner refers to redactions in her own direction to Squad members to leave the Absinthe show.  (OB 12:20-22, citing AR 248, 2059-60.) 

To the extent Petitioner challenges the fairness of the proceedings, the court finds her arguments unpersuasive. 

Conclusion

            The petition is DENIED. 

            Respondent to prepare, lodge and serve a proposed form of judgment in accordance with LASC local rules, rule 3.231(n).