Judge Mitchell L. Beckloff, Case 21STCP00530 2022-09-07 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00530, Date: 2022-09-07 Tentative Ruling

Petitioner, Carol Muske-Dukes, seeks a writ of mandate directing Respondent, University of Southern California, to set aside its July 29, 2020 administrative decision finding she harassed university students. Respondent suspended Petitioner without pay, issued work restrictions, and required Petitioner to participate in psychological counseling. Respondent opposes the request.

Petitioner is a tenured Professor of English in Respondent’s Department of English (Petition ¶ 7; Answer ¶ 7.) Petitioner has worked for Respondent since 1984 and has been a full professor since 1993. (Ibid.)

In 2015, Student 3 submitted a complaint to Respondent’s Office of Equity and Diversity (OED) regarding Professor A. (AR 8.) Student 3 told Petitioner about the complaint. (Ibid.) The OED completed its investigation of the complaint without Student 3’s participation. (Ibid.)

In 2017, Respondent considered promoting Professor A. Petitioner asked Student 3 for more information about the OED complaint. Petitioner hoped to use the information about Student 3’s complaint to thwart Professor A’s promotional opportunity. (AR 8-9, 61-82, 738-759.)

On September 28, 2017, Student 3 wrote a letter to President Nikias regarding Professor A. (AR 83-84, 760-761.)

Shortly thereafter, Petitioner shared that letter with an alumna of Respondent. (AR 89, 766.) Student 3 learned Petitioner shared the letter and expressed her discomfort to Petitioner that Petitioner did so:

However, I must reiterate that the letter I wrote to President Nikias is private, and I shared it with you in strict confidence--and only because you insisted on seeing it. I am feeling very uncomfortable about the fact that you shared my letter with someone else, without my permission or knowledge.

Even though Bonnie is an ally, I have to be the one to decide to share my letter; I have to be the one to decide when to tell my story, and how. I know you must understand this.

Going forward, I am respectfully requesting that you keep your copy of my letter private, and I am asking that you not share it without my consent. Thank you for understanding.” (AR 89, 766.)

In 2018, Petitioner sent Student 3 many emails asking her to speak to the Los Angeles Times regarding her experience with the OED. Petitioner also asked Student 3 to allow Petitioner to quote the letter in an article. (AR 92-95.) Student 3 again express her discomfort:

“I really don’t feel comfortable having any excerpts of my private letter being published in such a public forum, even if my name will be withheld. I think the letter served its own purpose when it was written and I don’t want it to be shared or used for anything else.” (AR 95.)

Petitioner continued to send Student 3 emails asking for permission to use excerpts of the letter. (AR 95-99.) Student 3 expressed her discomfort with Petitioner’s continued efforts and her regret for interacting with Petitioner:

“I am feeling very uncomfortable with your insistence and as I’ve previously stated, don’t want to be further involved in this at all. I don’t give permission to use my letter, which I now think was a mistake, and I’m perturbed by the misuse of my letter by so many people.” (AR 99.)

Student 3 learned Petitioner shared the letter with another student. (AR 101, 778.) Student 3 sent an email to Petitioner notifying Petitioner that she requested Petitioner’s removal as the chair of Student 3’s dissertation committee. (AR 101, 778.)

Professor David St. John, who Student 3 copied on the email, reported the complaint and other complaints about Petitioner to Respondent’s Office of Professionalism and Ethics (OPE). (AR 665-678.)

On November 28, 2018, the OPE commenced an investigation through investigators Joseph Perry and Alexandra Mayhugh along with some participation by Mark Manley, the OPE’s Director. The OPE’s investigation concerned claims of “unprofessional behavior and harassment” by Petitioner. (AR 5-8.)

As part of the investigation, the OPE also investigated Petitioner’s conduct with Student 6, who reported Petitioner pressured her to accept a publishing deal with Daniel Halpern of HarperCollins, a close friend of Petitioner, using manipulative tactics and inappropriate communications. (AR 11-12.) More specifically, Petitioner suggested Student 6 should submit a book proposal to Halpern, and after doing so, Halpern contacted Student 6 to discuss an offer, but Student 6 did not immediately respond. (AR 11.) Petitioner contacted Student 6 multiple times about her unresponsiveness and pressured her through emails and text messages to accept the offer. (AR 11, 118-128, 844-854.) Ultimately, Student 6 accepted Halpern’s publishing offer, but she felt compelled to do so because of Petitioner’s conduct and Petitioner’s friendship with Halpern. (AR 11.)

On June 7, 2019, the OPE notified Petitioner it was investigating complaints Petitioner behaved unprofessionally toward graduate students in the creative writing program. The OPE’s investigation included possible violations of the faculty handbook, Section 6-AA (2):

“The Office of Professionalism and Ethics is investigating a series of incidents regarding your professional conduct towards various University graduate students, staff, and/or faculty. Specifically, our office has received complaints that you have harassed or otherwise behaved unprofessionally toward graduate students in the creative writing program at USC. The scope of our investigation is limited to whether any of the alleged actions you took were harassing, abusive, or intimidating against another member of the University community. Please refer to the Faculty Handbook at Section 6-AA (2) (see http://policy.usc.edu).

As part of this investigation, we would like to interview you in-person during business hours in our office which is located on the third floor of the Bovard Auditorium on University Park Campus. Please respond back with your upcoming availability next week or the following week so we may find a time that is mutually agreeable.” (AR 886.)

The notice did not provide Petitioner with the complaining students’ names. (Ibid.)

On June 12, 2019, Petitioner met with the OPE’s investigators. (AR 17-21.) Petitioner was not otherwise advised of the nature of the interview beforehand (AR 2630) and was not permitted to have counsel present (AR 537). (The record is unclear whether Petitioner wanted counsel present.) The investigators did not tell Petitioner the complaining students’ names, though Petitioner did know the identity of some complainants based on the circumstances involved in the complaints. (AR 402-403.)

Regarding Student 3, the investigators advised Petitioner the complaint involved Petitioner’s sharing with another student the private letter addressed to President Nikias. (AR 19-20.) Petitioner explained she sent the letter to the student in response to the student’s desire to take a class with Professor A. Petitioner reported she believed sharing the letter would “do more good.” (Ibid.) Petitioner acknowledged Student 3 considered the letter private, but Petitioner claimed the letter belonged to Respondent, so she felt entitled to share the letter with other students. (Ibid.)

As to Student 6, Petitioner believed her language, including the use of “ ‘WTF,’ ” was justified. Petitioner also mentioned a specific health issue to Student 6 because the two “ ‘were very close.’ ” (AR 21.)

The investigators also spoke to Petitioner about other students’ complaints.[1]

Following Petitioner’s interview, Petitioner submitted additional evidence and emails to support her position. She also identified potential witnesses for investigators. (AR 135-275, 930-934, 961, 967, 974, 977, 982, 984, 996, 1001-1003.)

The OPE offered Petitioner a second meeting with investigators. Petitioner declined the offer. (AR 1018-1020.)

Petitioner requested that OPE interview the publisher’s representative, Dan Halpern, and certain students. The OPE investigators did so albeit several months later shortly before preparing its report. (One student did not respond to the OPE’s request for an interview.) (AR 5.) Notably, Halpern told the OPE that Student 6 was normally responsive to his communication, and Halpern did not tell Petitioner he was going to rescind his publishing offer if Student 6 did not respond. (AR 13-14.) Other students’ interviews reflected positive experiences with Petitioner. (AR 14-17.)

The Report concluded Petitioner violated Section 6-AA (2) of Respondent’s faculty handbook, which prohibits conduct that is harassing, abusive, and intimidating. (AR 48; see also AR 2828 [2018 Faculty Handbook provision], 2970 [2019 Faculty Handbook provision].)

According to the Report, Petitioner’s sharing of Student 3’s private letter to others and Petitioner’s communications to Student 6 regarding Halpern’s offer were objectively offensive, harassing, abusive and intimidating. The Report therefore concluded Petitioner violated the faculty handbook. (AR 22-39.)

On October 25, 2019, Perry sent Petitioner a letter advising her the OPE’s investigation had been concluded. (AR 1-4.) Perry reported the OPE found “sufficient evidence” Petitioner violated section 6-AA (2) of the faculty handbook by: “(1) violating the privacy and confidentiality of a student, (2) pressuring a student regarding a professional opportunity, and (3) engaging in inappropriate and excessive communications with students.” (AR 1.)

Perry advised Petitioner about possible discipline based on its investigation and Petitioner’s rights to appeal:

“The findings and conclusions of this investigation will now be shared with a faculty Sanctioning Panel of the Committee on Professional Responsibility (CoPR) (see Faculty Handbook 6-AA (3)). The Faculty Handbook provides that the panel will not re-evaluate the investigation or its factual findings or conclusions, but the current practice of the committee is to allow both reporting and responding parties to submit a two-page statement of mitigating or aggravating circumstances. . . .

After the Sanctioning Panel acts, an appeal may be filed by you pursuant to section 6-F (l) of the Faculty Handbook. . . . An appeal may deal with the findings and conclusions of the investigation as well as any sanctions and corrective actions determined by the Panel. At appeal, you will be given an opportunity to review the Report of Investigation (ROI) by scheduling an appointment with OPE . . . .” (AR 4.)

Perry did not include a copy of the Report with her letter to Petitioner. Petitioner did not see the Report until April 10, 2020, the date of her grievance hearing. (AR 2626.)

The OPE forwarded its Report and exhibits to the Committee on Professional Responsibility (CPR) to consider sanctions. (AR 4, AR 2826 [2018 Faculty Handbook], 2971 [2019 Faculty Handbook].) Respondent’s process did not permit Petitioner to appear before it, but Petitioner could submit a two-page statement of mitigating circumstances. (See AR 4.)

Consistent with Respondent’s rules, the CPR reached a decision without a hearing. (AR 2826 [2018 Faculty Handbook], 2971 [2019 Faculty Handbook].)

On December 2, 2019, the CPR issued the following sanctions: (1) Petitioner should no longer advise students, serve on doctoral committees, or conduct graduate courses; (2) Petitioner should be suspended without pay for one semester;[2] (3) Petitioner should not communicate with Respondent’s students, other than those she was currently teaching, until the completion of her suspension; and (4) Petitioner should arrange for counseling, which could be done through the Center for Work and Family Life. (AR 298-299.)

Brigid Balcom, Assistant Vice Provost, informed Petitioner of the sanctions imposed by the CPR. (AR 299.) In her letter, Balcom informed Petitioner she had the option of appealing the “findings of fact, the conclusion of a policy violation, or the decision on sanctions or corrective actions.” (Ibid.) Balcom also informed Petitioner she could review the Report by scheduling an appointment with the OPE. (Ibid.)

On January 10, 2020, Petitioner appealed the discipline imposed by the CPR. (AR 305-324.) As to the OPE’s findings, Petitioner argued the students’ complaints were taken out of context and explained why students sought to punish her. (AR 313-319.) Pursuant to Respondent’s rules, Respondent “conducted [the appeal] on the basis of the information before the [CPR’s Sanctioning Panel] without a hearing.” (AR 2841 [2018 Faculty Handbook], 2989 [2019 Faculty Handbook].)

Executive Vice Provost Elizabeth Graddy reviewed Petitioner’s appeal. Graddy considered the record evidence that was the basis of the CPR’s recommendation, which was over 300 pages.[3] (AR 325-326.)

On January 28, 2020, Graddy ruled on Petitioner’s appeal, reporting the findings supported the conclusion by the OPE that Petitioner had violated Respondent’s policies. (AR 325.) Graddy affirmed most of the imposed sanctions, except for the prohibition on Petitioner teaching or advising students because it did not allow for the possibility that counseling might change Petitioner’s behavior. (AR 326.) Therefore, Graddy referred the decision as to whether Petitioner was ready to resume advising and teaching students to Petitioner’s dean or her delegate. (Ibid.)

Respondent’s rules provide for a grievance “on a claim that the decision on appeal violated the grievant’s rights, rather than a disagreement-with the findings, conclusions, sanction or corrective action.” (AR 2842, 2990-2991.) A grievance may be filed only as to “the decision on appeal.” (AR 2842, 2991.) The grievance may be filed “for a violation of rights provided by law, or by established University policies including those contained in the Faculty Handbook, or by the faculty member’s contract.” (AR 2224, 2849.)

On February 19, 2020, Petitioner’s counsel requested a grievance hearing. (AR 1403-1407, 2216.)

On March 3, 2020, Respondent asked Petitioner’s counsel to propose dates for a grievance hearing. (AR 1408.)

On March 5, 2020, Petitioner informed Respondent that her handling attorney was no longer able to work on her matter and she was considering proceeding without counsel. (AR 1409.)

Petitioner ultimately elected to represent herself and the parties chose a mutually agreeable date for the grievance hearing on April 10, 2020. (AR 1417, 1425, 1447, 1535.)

On April 8, 2020, Petitioner submitted a statement with exhibits. (AR 1892-2032.)

On April 10, 2020, the Faculty Tenure and Privileges Appeals Committee (Grievance Panel) conducted a hearing on Petitioner’s grievance. (AR 375-613 [hearing transcript].) The Grievance Panel considered “whether any rights have been violated . . . in the decision on appeal.” (AR 386.) The Grievance Panel did not consider whether Petitioner’s rights were violated before the appeal, i.e., during the underlying investigation. (AR 386-387; see also AR 2842 [2018 Faculty Handbook], 2990-2991 [2018 Faculty Handbook].)

Petitioner testified and had four witnesses testified on her behalf, while Respondent had two witnesses testify. Respondent’s witnesses were Manley and Graddy. Manley testified about how the OPE conducted its investigation (AR 521-538), and Graddy testified about how she evaluated Petitioner’s appeal and made her decision. (AR 552-556, 565-566.)

After the grievance hearing, Petitioner submitted a writing criticizing the Report. Respondent submitted a response. (AR 2392-2415, 2556-2559.)

On April 21, 2020, the Grievance Panel issued its decision. (AR 614-619.) The Grievance Panel agreed with Graddy’s conclusions that the OPE investigation did not violate Petitioner’s rights and found Graddy’s evaluation of Petitioner’s appeal did not violate her rights. (Ibid.) The Grievance Panel found persuasive the emails and texts Petitioner sent to Student 3 and Student 6. (AR 617-618.) The Grievance Panel recommended sustaining the sanctions except for the suspension of Petitioner without pay. (AR 618.)

Petitioner also filed a response to the Grievance Panel’s decision. (AR 623-655.) Among other things, Petitioner argued she was unaware she had an opportunity to review the Report during the appeal process. (AR 625-626.)

On July 29, 2020, Respondent’s President, Carol L. Folt, considered the Grievance Panel’s recommendation and the parties’ arguments in response to the Grievance Panel’s recommendation. Through Charles F. Zukoski, Provost and Senior Vice President for Academic Affairs, Folt issued a final decision denying Petitioner’s grievance. (AR 656-660.) Folt concluded there was no basis to modify the sanctions Graddy had affirmed, and Petitioner’s rights were not violated in the investigation by the OPE or in Petitioner’s appeal. (AR 675-676.)

Petitioner seeks relief in this proceeding through Code of Civil Procedure section 1094.5. (Opening Brief 12:10.)

Code of Civil Procedure section 1094.5, subdivision (b) provides the issues for review of an administrative decision 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 respondent 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. (Code Civ. Proc. § 1094.5, subd. (b).)

There are two possible forms of review: (1) independent judgment; or (2) substantial evidence. (Id., subd. (c).) Code of Civil Procedure section 1094.5 does not specify which cases are subject to independent review, leaving that issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 (Fukuda).) In cases reviewing decisions which affect a vested, fundamental right, the trial court exercises independent judgment on the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) In all other cases, the court determines whether the findings are supported by substantial evidence in light of the whole record. (See Code Civ. Proc., § 1094.5, subd. (c).)

The fair trial requirement “is equivalent to a prescription that there be a fair administrative hearing.” (Pomona College v. Superior Court (1997) 45 Cal.App.4th 1716, 1730.) “Issues related to bias of the hearing officer or agency, the admission or exclusion of witnesses and evidence, and hearing procedures have all given rise to fair trial claims.” (CEB, Cal. Administrative Mandamus (3rd ed. 2018) § 6.35 p. 6-30.)

Where the issue is whether a fair administrative hearing was conducted, a petitioner is entitled to an independent judicial determination of the issue. (Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1141; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Therefore, the court must independently review the fairness of the administrative proceedings as a question of law. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1438.)

Finally, Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda, supra, 20 Cal.4th at p. 819.)

Petitioner requests the court apply its independent judgment to review the underlying administrative decision because the decision affects a fundamental vested right. (Opening Brief 12:27-13:6.) Respondent argues the court should use the substantial evidence test because the decision did not affect a fundamental vested right. (Opposition 22:3-15.) Petitioner fails to address this issue in her Reply. (See Reply 12:16-22 [focusing solely on whether the independent judgment test applies to the review of fairness of the hearing, not in the evaluation of the evidence].)

Respondent argues it is a private employer and Petitioner’s employment is presumed at-will and can be terminated without cause. (Labor Code, § 2922.) Therefore, according to Respondent, Petitioner could have no fundamental vested right in her employment other than where her tenure status is at issue—a disciplinary decision does not implicate a fundamental vested right.

To the extent Petitioner’s claim involves a fundamental vested right, judicial review of Respondent’s factual determinations considers whether the weight of the evidence supports those factual determinations. In considering the weight of the evidence, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)

Substantial evidence, on the other hand, 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.) “Courts may reverse an [administrative] decision only if, based on the evidence before the agency, 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.) This perspective is deferential to the agency. (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1074 [“[The court] must accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision].”].)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the evidence does not support the administrative findings. (See Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal.App.2d 129, 137; Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.)

Petitioner seeks a writ of mandate on three grounds: (1) Respondent did not provide Petitioner with a fair hearing; (2) Respondent did not provide Petitioner with a fair grievance process; and (3) the decision to impose the sanctions is not supported by the evidence.

Petitioner challenges the administrative proceeding as unfair on three separate grounds: (1) notice; (2) access to evidence; and (3) the hearing did not allow her to present evidence to challenge the findings and sanctions, but instead was a sham, precluding reconsideration of the underlying adverse findings and sanctions.

“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.)

“Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’ ” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062. Disciplinary hearings “need not include all the safeguards and formalities of a criminal trial.” (Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1078.) “[T]o comport with due process, the university’s procedures should be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard, . . . to insure that they are given a meaningful opportunity to present their case.” (Ibid. [Cleaned up.])

Petitioner argues Respondent provided inadequate notice to her because she was unaware of the investigation into her conduct or of the specific charges. (Opening Brief 4:10-11, 5:20-21.) Petitioner’s argument is brief and cursory. Nonetheless, the court considers the merits of Petitioner’s inadequate notice claim.

“Notice of the charges sufficient to provide a reasonable opportunity to respond is basic to the constitutional right to due process and the common law right to a fair procedure.” (Rosenblit v. Superior Court, supra, 231 Cal.App.3d at 1445.) “If notice is to be meaningful, it must include information about the basis of the accusation—not just a list of Student Conduct Code sections that can be interpreted to encompass any activity [the decision-maker] finds to be inappropriate.” (Doe v. University of Southern California, supra, 246 Cal.App.4th at 244.)

The faculty handbook at Section 6-E (2) states: “In the conduct of the investigation, the Designated Investigator shall present the responding party with sufficient information so that he or she can meaningfully respond.” (AR 2839 [2018 Faculty Handbook], 2986 [2018 Faculty Handbook].)

Based on the whole record, the court finds under its independent judgment Respondent provided Petitioner with sufficient notice of the allegations. Respondent advised Petitioner on June 7, 2019 that it had started an investigation through the OPE “into allegations [Petitioner] engaged in actions that were harassing, abusive, or intimidating against another member of the University community.” (AR 886.) The notice specified the investigation was focused on behavior toward graduate students in the creative writing program and Petitioner’s conduct in the context of the faculty handbook at Section 6-AA (2). (Ibid.) During the OPE’s investigation, the OPE met with Petitioner and spoke about the specific allegations (except for complaining students’ names). (AR 17-21.)

Given the evidence, the court finds Respondent sufficiently advised Petitioner of the nature of the allegations. Based on Respondent’s disclosures, Petitioner had an adequate opportunity to prepare her defense and raise her objections. The student encounters leading to the allegations were all within Petitioner’s knowledge.

Accordingly, the court finds Petitioner failed to demonstrate Respondent deprived her of notice such that the administrative proceedings were unfair and must be set aside.

Petitioner argues Respondent withheld evidence in a way that deprived her of a fair hearing. Specifically, Respondent precluded Petitioner from reviewing and responding to evidence in a meaningful way. Petitioner contends once the OPE issued the Report, Petitioner could not contest the findings or offer evidence in response to the Report’s findings and conclusions. (Opening Brief 4:12, 7:10-12. 13:20-15:13.) That is, Petitioner never had an opportunity to respond to the OPE’s findings prior to those findings being made.

“[C]ommon law requirements for a fair hearing under [Code of Civil Procedure] section 1094.5 do not allow an administrative board to rely on evidence that has never been revealed to the accused.” (Doe v. University of Southern California, supra, 246 Cal.App.4th 221, 247; accord Doe v. Regents of University of California (2018) 28 Cal.App.5th 44, 57. [“The accused must be permitted to see the evidence against him. Need we say more?”])

Respondent argues Petitioner had several opportunities to respond to the allegations against her. Respondent identifies many acts involved in the investigation before the OPE issued the Report. For example, Petitioner met with the OPE’s investigators to speak about the incident, and she was aware of the allegations, including most of the complaining students’ names. (AR 17-21, 402-403). Petitioner’s interview lasted five hours. (AR 529.) Petitioner also declined a second meeting with the OPE’s investigators where she had the ability to respond further to the OPE. (AR 1018-1020.)

Respondent reports at the time of Petitioner’s interview, “There was a binder of evidence that [the OPE investigators] provided to [Petitioner] for review.” (AR 530.) The investigation binder contains the evidence in a case “emails, documents, copies of text messages . . . .” (AR 531.) The OPE organizes the binder by separating the evidence “by witness or by incident or allegation.” (AR 531.) The purpose of the binder and its review “is to provide the interviewee with an opportunity to refresh her recollection, better understand the nature of the allegation, the specificity of what [the OPE] is going to be asking.” (AR 531.) The OPE “provide[s] that information for review, [giving] people as much opportunity as they need to review to give [the OPE] a good, honest, fresh recollection of whatever it is [the OPE] is taking about.” (AR 531.) If the OPE investigators discuss a particular witness, the investigators will refer to a tab in the binder with the information to “make sure the respondent has plenty of time to review that prior to giving their answer.” (AR 531.) The OPE investigators will “extend the opportunity to come back and review” evidence if an interviewee “feels like they didn’t have enough time to review something.” (AR 532.)

After Petitioner’s interview, Petitioner identified witnesses for the OPE to interview, and the OPE did so (with one exception). (AR 5, 13-17, 135-275, 930-934, 961, 967, 974, 977, 982, 984, 996, 1001-1003.)

Petitioner contends she was entitled to a live hearing to defend the allegations against her. The court disagrees.

“Fair hearing requirements are flexible and entail no rigid procedure. To comport with due process, the university's procedures should be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard, [] to insure that they are given a meaningful opportunity to present their case. Even when recognizing a right to administrative cross-examination in certain circumstances, we have rejected the notion that as a matter of law every administrative appeal [] must afford the [accused] an opportunity to confront and cross-examine witnesses. We have also recognized that an administrative procedure in which a single individual or body investigates and adjudicates does not, without more, violate due process.” (Alpha Nu Assn. of Theta XI v. University of Southern California, supra, 62 Cal.App.5th at 418-419 [cleaned up].)[4]

Petitioner had an opportunity to review the evidence against her. During her five-hour interview, she reviewed the documentary evidence. Petitioner also had a full opportunity to provide evidence in her defense. She suggested witnesses who were then interviewed by the OPE (save one) and provided documents to investigators. The court finds Respondent’s process through the OPE provided Petitioner with a full and fair opportunity to review the evidence and present her defense.

Petitioner also contends she had no ability to challenge the findings reached by the OPE under Respondent’s rules. (Opening Brief 14:13-15.) Petitioner contends her rights to appeal were limited. For example, under Respondent’s policy, the appeal process of the CPR’s decision allowed Petitioner to challenge the CPR’s decision, not the conclusions reached in the Report.

Respondent’s rules allowed Petitioner to challenge whether the CPR’s conclusions were supported by the findings, whether the findings were supported by the information considered by the panel, whether there were procedural errors that had a material impact on the fairness of the investigation, or whether the sanctions and corrective action are grossly disproportionate to the violation found. (AR 2841 [2018 Faculty Handbook], 2989 [2019 Faculty Handbook].) An appeal of the CPR’s decision did not provide for a challenge in the factual determinations made by the OPE—that is, under Respodent’s rules there is no de novo review by the CPR.

While Petitioner is correct about Respondent’s rules as written, here Petitioner obtained a de novo review. At every step of the administrative process after the OPE issued its Report, the reviewing body or individual considered the underlying evidence and Petitioner’s explanation despite Respondent’s written rules.[5] That is, Respondent did not adhere to its written rules and provided Petitioner with full review on several occasions.

For example, Graddy noted Petitioner “assert[ed] that the findings are not supported by the evidence in the record.” (AR 325.) Graddy responded: “However, based on a careful reading of the investigative record, I have determined that the findings support the conclusion by OPE that you violated University policies, as delineated in the opening paragraph of this letter.” (AR 325.) Graddy continued, “[t]he behavior documented in the record is clearly inconsistent with your own perception of your behavior.” (AR 325.) Graddy indicated she reviewed “the over 300 pages of record that were the basis of the [CPR’s] recommendations.” (AR 325.) Graddy noted the ”extensive documentation of [] text messages, email and other communications.” (AR 325.) Graddy’s review, despite Respondent’s written rules, amounts to full and complete consideration of the entire record, including Petitioner’s evidence and defense argument.

Similarly, the Grievance Panel, despite Respondent’s written rules, considered the facts supporting the Report. (AR 618.) Folt’s office acknowledged the Grievance Panel had exceeded the review required under Respondent’s written rules. (AR 657.) The Grievance Panel considered the charges and the evidence supporting those charges. (See AR 615 [email, text correspondence and interviews].) The Grievance Panel considered Petitioner’s defenses. (See AR 616.) The Grievance Panel made its own findings of fact on the charges. (AR 617.) Ultimately, the Grievance Panel found “the three charges are upheld.” (AR 618.) The Grievance Panel noted Petitioner’s “testimony, witness testimonies and exhibits do not provide adequate evidence to counter these charges.” (AR 618.)

Finally, Folt’s decision (conveyed through Zukoski) demonstrates further consideration of the underlying facts and evidence. (AR 656-657.) Folt concluded the charges should be upheld. (AR 658.)

On the whole of the administrative record, under the court’s independent judgment, the court cannot find Respondent deprived Petitioner of a fair hearing based on her inability to review the Report prior to its issuance. Petitioner had an opportunity to review the evidence against her and present her defense (witnesses and exhibits). Despite Respondent’s written rules to the contrary, Petitioner’s claims concerning the evidence supporting the Report received multiple reviews in a de novo-like fashion.

Petitioner argues a single investigator did not conduct all of the interviews. (Opening Brief 14:13-17.) It is irrelevant Perry did not conduct every interview by himself—the OPE assigned two investigators for the process. (AR 5-17.) The OPE considered the entirety of the evidence before it.

Petitioner argues the Report includes only summaries of witness interviews instead of transcriptions of interviews or investigators’ notes. (Opening Brief 14:18-15:9.) Petitioner contends OPE credibility determinations of witnesses without preserving the ability of a reviewing body to evaluate that determination. In this case, the credibility determinations were not a critical component for the findings because the findings were primarily based on the undisputed written communications—text messages and emails. The CPR, Graddy and Folt all considered the written documentation. The written communications are extensive and speak for themselves.

While it is true the Report summarizes witness statements, it is the written documentation that is critical; it corroborates witness statements. The Report emphasizes the written documentation and quotes many at length. (AR 19-34.) Petitioner’s communications are the critical facts—not how the parties ultimately may have perceived the communications. The communications speak for themselves and demonstrate violations of the Faculty Handbook. (E.g., AR 99 [“I don’t give permission to use my letter . . .”].)

Petitioner argues the length of time necessary to complete the investigation and the timing of the witness interviews affected the fairness of the investigation. (Opening Brief 15:14-17:12.) Petitioner correctly reports the faculty handbook required the completion of an investigation and preparation of a written report “as efficiently and promptly as possible,” preferably within 90 days, with reports taking longer subject to explanation for the delay to the responding party and others. (AR 2840-2841 [2018 Faculty Handbook], 2988-2989 [2019 Faculty Handbook].) Nonetheless, Petitioner does not persuasively identify prejudice and explain how the necessity for an explanation for delay demonstrates Respondent’s process was inherently unfair. Nor does Petitioner persuasively explain there is an inherent prejudice in delay itself, especially here given the written records of communications.

Instead, Petitioner’s more plausible argument is the timing of the witness interviews for those witnesses identified by Petitioner. The record shows the OPE interviewed Petitioner on June 12, 2019. (AR 17-21.) Petitioner thereafter submitted additional evidence and emails and identified potential witnesses. (AR 135-275, 930-934, 961, 967, 974, 977, 982, 984, 996, 1001-1003.) The OPE began interviewing the additional identified eight witnesses in October 2019 in a compact 10-day timeframe. (AR 13-17.) The OPE interviewed the witnesses immediately before issuing the Report a week later.

Petitioner’s claims these circumstances are suspicious and sound in bias. They demonstrate a non-neutral fact finder providing short shrift to defense evidence.

Without question, a fair trial requires a neutral adjudicator. “The standard of impartiality required at an administrative hearing is less exacting than that required in a judicial proceeding. [Citation.]” (Gai v. City of Selma (1998) 68 Cal.App.4th 213, 219-220.) “[A] party seeking to show bias or prejudice on the part of an administrative decision maker [must] prove the same with concrete facts: ‘ “Bias and prejudice are never implied and must be established by clear averments.” [Citation.]’ ” (Id. at 220.) In the administrative hearing context, in situations where there is an absence of evidence of financial or personal interest, a petitioner seeking “to prevail on a claim of bias violating fair hearing requirements . . . must establish ‘an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims,” “with concrete facts.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483.)

Here, the information necessary to provide an investigative report and the evaluation of that information, including the weight or importance of that information, necessarily require the exercise of some discretion. The Report included Petitioner’s explanation for certain events and denials of statements made by certain witnesses. That the Report may have included more information or valued the submitted information more in Petitioner’s favor does not demonstrate bias. That the Report was produced quickly after the completion of additional interviews is not material evidence of bias, especially when considering the facts of the investigation were straightforward and the additional interviews were mostly irrelevant to the allegations of Student 3 and Student 6.

Petitioner has not demonstrated bias. Petitioner has also not demonstrated error based on the nature of the investigation or its use of witness statement summaries. This is especially true here where the documentary evidence establishes in large measure the faculty handbook violation.

Petitioner also argues Respondent did not provide Petitioner with a fair grievance process.

First, Petitioner argues Respondent dissuaded her from being represented by counsel at the grievance hearing. (Opening Brief 9:17-10:3.) The argument is unsupported by the record. Petitioner, through counsel, requested a grievance hearing date. (AR 1403-1407, 2216.) When Respondent asked for proposed dates (AR 1408), Petitioner informed Respondent her attorney no longer was representing her, and she was considering proceeding without counsel. (AR 1409.)

At that time, no hearing date had yet been selected. Petitioner ultimately decided to represent herself and the parties chose a mutually agreeable hearing date. (AR 1417, 1425, 1447, 1535.) Petitioner’s argument focuses on Respondent not advising Petitioner of her right to request a continuance and that a continuance would delay the process. (AR 2633.)

The argument is unpersuasive. Petitioner has not identified any authority suggesting Respondent has an obligation to inform Petitioner of her rights to request a continuance.

Second, Petitioner argues Respondent’s counsel misrepresented evidence at the grievance hearing. (Opening Brief 10:4-11:10.) As a preliminary matter, Petitioner made an appearance at the hearing and had an opportunity to challenge any misrepresentation of the evidence at the grievance hearing. Petitioner’s arguments are unavailing. Petitioner cites questionable statements made during Respondent’s counsel’s opening and closing statements, which themselves are not evidence. The Grievance Panel understood its obligation to rely on the evidence before it, not unsupported argument.

Third, Petitioner argues Respondent relied on improper hearsay evidence at the grievance hearing. (Opening Brief 11:11-23.) More specifically, Petitioner argues that Manley and Graddy should not have been allowed to testify regarding the accusations purportedly made by the student complainants against Petitioner. As a preliminary matter, Petitioner made an appearance at the hearing and had an opportunity to object to any inadmissible evidence at the grievance hearing. In any event, Respondent’s rules do not prohibit presentation of hearsay evidence at the grievance hearing: “Each party shall have the opportunity to present its evidence, including witnesses, and to make an argument to the grievance panel. . . . Technical rules of evidence, voir dire proceedings. and pre-trial discovery proceedings are not applicable.” (AR 2231 [2018 Faculty Handbook], 3006 [2019 Faculty Handbook]. Cf. Gov. Code, § 11513, subd. (c).)

Fourth, Petitioner argues the restoration of sanctions is unfair. (Opening Brief 11:24-12:8.) It is undisputed Folt overruled the Grievance Panel’s recommendation of the suspension with pay sanction issued by CPR. However, it is unclear why that action demonstrates the grievance process is unfair. Petitioner herself acknowledges that “President Folt noted that the hearing board did not have the right to substitute its judgment for that of the CoPR Sanctioning Panel.” (Opening Brief 12:5-7.) President Folt’s action was a valid exercise of her authority. That she exercised that authority does not demonstrate unfairness.

Fifth, Petitioner argues that there was no fair grievance process because Respondent violated its policy to initially offer mediation after Petitioner filed her grievance. (Opening Brief 17:13-18:7.) Petitioner’s argument misstates Respondent’s policy—mediation is “voluntary and goes forward only with the agreement of both sides.” (AR 2225 [2018 Faculty Handbook], 3000 [2019 Faculty Handbook].)

It is irrelevant whether Petitioner requested mediation[6] before the grievance process began because Respondent had to agree to participate, and nothing shows Respondent’s assent. It is also irrelevant Respondent issued a memorandum after Petitioner filed her grievance indicating that “Procedures for mediation should begin immediately unless mediation has already been attempted and proven futile.” (AR 1975.) The record does not reflect Petitioner requested mediation before beginning the grievance process. The only purported evidence is Petitioner’s citation of AR 340-341, which is a letter from her counsel generally requesting an “amicable solution” without reference to mediation. (AR 341. [“We believe it is in the best interest of both parties to reach an amicable resolution, and we strongly suggest you review the attached documentation thoughtfully.”]) Petitioner cannot otherwise reasonably claim that “amicable resolution” means mediation. (Reply 12:1-3.) That phrase is vague at best and can easily and more reasonably mean a settlement brokered directly between the parties.

Petitioner contends the evidence does not support the findings and Respondent’s disciplinary decision must be set aside. Even assuming this court is required to conduct its review pursuant to its independent judgment because Petitioner’s discipline implicates a fundamental vested right, the court finds the weight of the evidence supports Respondent’s decision.

Student 3: Manley and Mayhugh interviewed Student 3. (AR 8.) Student 3 is a graduate student, and Petitioner was her advisor. (AR 8.) Student 3 and Petitioner had somewhat of a social relationship. (AR 8.) Student 3 explained she would go out to lunch with Petitioner and Petitioner “would ‘spill confidential information’ about other students and faculty members.” (AR 8.)

In 2015, Student 3 complained to Respondent’s OED about another faculty member, Professor A. (AR 8.) Student 3 felt the faculty member “had made racist, sexist, and misogynistic comments to Student #3.” (AR 8.) At the time, Student 3 told Petitioner about her complaint. (AR 8.) Student 3 did not realize Petitioner “has tried to get the faculty member out of the program for a long time.” (AR 8.)

In 2017, the faculty member was being considered for tenure. (AR 8.) A week before Student 3’s qualifying exam, Petitioner began calling Student 3 “ ‘excessively’ to encourage [Student 3] to write a letter to then President Nikias about the faculty member.” (AR 8.) Petitioner sent multiple emails to Student 3. (AR 8.) Student 3 characterized the emails (sometimes as many as 4 to 5 a day) as “back-to-back” and “harassing.” (AR 8.) Petitioner also called Student 3 and “left voicemails multiple times in a row.”[7] (AR 8.)

Student 3 started to get nervous because “ ‘this woman was in charge of [her] educational future.’ ” (AR 8.) Student 3 felt pressured to send the letter “in order to do well and pass her qualifying exam.” (AR 9.) Student 3 felt “ ‘very bullied’ ” and uncomfortable. (AR 9 [peak discomfort for her].)

Student 3 finally agreed to write the letter. Petitioner “instructed Student #3 to send the letter to her first so that she could review and edit it before sending it on . . . .” (AR 9.)

Student 3 sent the letter and provided a copy of it to Petitioner. (AR 9.) Student 3 described providing Petitioner with the letter “as her ‘biggest regret.’ ” (AR 9.)

Student 3 later learned Petitioner shared the letter with another student. (AR 9.) Student 3 told Petitioner the letter was private, and she “shared it with [Petitioner] in strict confidence—and only because [Petitioner] insisted on seeing it.’ ” (AR 9.)

Thereafter Petitioner requested multiple times that Student 3 permit her to share “excerpts with the LA Times.” (AR 9.) Student 3 declined Petitioner’s repeated requests. (AR 9.) Petitioner thereafter sent “multiple follow-up emails ‘badgering and bullying’ her to share the letter.” (AR 9.) Student 3 described her interaction with Petitioner as “stressful and ‘insane’ – ‘absolute hell for [her].’ ” (AR 9.) Student 3 worried that Petitioner “would withhold a letter of recommendation for her if Student 3 did not agree to wider disclosure of the letter.” (AR 9.)

Petitioner shared the letter again with another student in November 2018. (AR 9.) Student 3 then wrote to the department requesting Petitioner be removed as her advisor and as the Chair of Student 3’s dissertation committee. (AR 9.) “After her removal, [Petitioner] called and left numerous voicemails for Student #3 and finally sent a letter to [Student 3’s] publisher trying to reach her.” (AR 9.)

Certain emails corroborate Student 3’s statements to investigators concerning Student 3’s interactions with Petitioner. (AR 23-24.)

Petitioner told investigators she did not ask Student 3 to write a letter to the President about Professor A. (AR 19.) Investigators then presented Petitioner with 14 emails to Student 3 requesting she write a letter. (AR 19, 79 [“ ‘if you could write a brief letter’ ”], 67 [“it might make sense for you to address a letter to USC’s President”], 81 [“the reason I’ve been asking about the note to the USC President”], 82 [“here are two mails for the Pres”].)

Petitioner understood Student 3 considered the letter private. (AR 19.) Petitioner “felt comfortable” sharing the letter because she believed the letter “ ‘belongs to the University.’ ” (AR 19.) Petitioner believed sharing the letter “ ‘because it could do more good.’ ” (AR 20.)

Petitioner admitted to sending the letter to a second student. (AR 20.) Petitioner also reported she told the student “to share the information with other students.” (AR 20.)

Petitioner’s assertions about California law and the elements of a breach of privacy claim do not inform on the faculty handbook and violations of Respondent’s policy. Moreover, nothing suggests Petitioner’s letter of complaint could be shared freely under Respondent’s policy. (AR 2983.)

Respondent’s conclusion Petitioner violated the faculty handbook is solid. (AR 24-25.) The weight of the evidence supports Respondent’s finding Petitioner’s acts with Student 3 were “objectively offensive, harassing, abusive and intimidating, . . . .” (AR 25.) This is especially true given Petitioner’s relationship with Student 3 as her faculty advisor and Chair of her dissertation committee.

Student 6: Student 6 had a relationship with Petitioner similar to that of Student 3—Petitioner served as Chair of Student 6’s dissertation committee. (AR 11.) Like Student 3, Student 6 requested Petitioner be removed from her dissertation committee. (AR 11.)

Student 6 described the volume of contact from Petitioner as “ ‘abusive and harassing.’ ” (AR 12.) Student 6 believed Petitioner uses intimidating and threatening language. (AR 12.) Student 6 told investigators:

“ . . . when [Petitioner] does contact Student #6, if Student #6 does not respond within a day, then Student #6 may receive ten text messages from [Petitioner] for each one of Student #6’s. Student #6 also stated that she may have two to three missed calls, one voicemail, and tow to three emails from [Petitioner] all within the span of four to five hours. According to Student #6, [Petitioner] ‘does this over and over again’; ‘she literally harasses people.’ ” (AR 12.)

Student 6 also described the circumstances of a publisher’s offer for a book. (AR 11.) Student 6 explained she received a number of emails from Petitioner inquiring why Student 6 had not responded to the publisher. (AR 11.) Student 6 felt pressured to accept the offer because Petitioner’s relationship with the publisher. (AR 11-12.)

Petitioner does not dispute she contacted Student 6 will the offer was outstanding. (AR 21.) Petitioner admitted she was “frantically trying to reach her.” (AR 21.)

Student 6 characterized Petitioner’s communications with her as manipulative. (AR 11.) Sample communications amply support Student 6’s characterization. (AR 26-27 [suggesting Petitioner would not write recommendation letters, confusion “by your lack of response”, “I have many other things to do & no more time to chase you”], 28 [“wait a minute – having a brilliant offer to publish your memoire is ‘nerve wracking’?”], 29-30 [“Just left you a VM – I’m losing it. Dan is ready to give up & so am I”], 31-36 [“become a real mess”].)

The weight of the evidence supports Respondent’s finding Petitioner violated the faculty handbook. Petitioner’s acts with Student 6 “were objectively offensive in that they were coercive and intimidating towards Student #6.” (AR 39.) As with Student 3, this is especially true given Petitioner’s relationship with Student 3 as Chair of her dissertation committee.

Finally, based on the foregoing, the weight of the evidence also supports Respondent’s finding Petitioner tends to send excessive and inappropriate emails.

[1] These other complaints did not lead to discipline and are not discussed herein. (See AR 2-3, 47.)

[2] The suspension was not to begin immediately because of Petitioner’s planned sabbatical. (AR 298.)

[3] Petitioner’s criticism of the limited universe of documents (Opening Brief 8:24-9:3) is misguided for the reasons stated in the Opposition (see Opposition 13:8-21), i.e., some of the “missing” documents post-date the appeal, are irrelevant scheduling or duplicative emails, and are policy documents not evidence.

[4] Division Four of this District’s Court of Appeal decided Alpha Nu Assn. of Theta XI v. University of Southern California, supra, 62 Cal.App.5th 383, 422, after another Court of Appeal decided Knight v. South Orange Community College Dist. (2021) 60 Cal.App.5th 854. Alpha Nu Assn. of Theta XI v. University of Southern California labeled Knight v. South Orange Community College Dist.’s statement some form of hearing and witness confrontation would be required if a student were suspended or expelled a dictum. Knight v. South Orange Community College Dist. discussed student discipline cases, not faculty discipline.

[5] While it is not entirely clear as to CPR, the CPR indicated it did consider the evidence supporting the Report: “The [CPR] reviewed the investigative report and attendant documentation, which included email and text communications with you. The [committee] noted that the investigation concluded you violated the privacy and confidentiality of a student, pressured a student regarding a professional opportunity, and engaged in inappropriate and excessive communications with students. The committee also gave full consideration to the statement you submitted to it.” (AR 298.)

[6] The court finds otherwise as explained in the remaining part of this paragraph.

[7] That Student 3 came to Petitioner in 2015 about Professor A and “was outraged at Professor [A’s] racist and misogynistic misconduct” has nothing to do with Petitioner disclosing Student 3’s private information after specifically being instructed not to do so. (Opposition 18:23-19:8.) As for pressure, even if Petitioner’s requests were couched as “if you could write a brief letter” as reported by investigators, Petitioner emailed Student 3 “at least 14 emails” in just over a month. (AR 19.) Petitioner served as Student 3’s faculty advisor and the chair of Student 3’s dissertation committee. (AR 19.) Under the circumstances, a graduate student’s concern Petitioner “ ‘was in charge of [her] educational future’ ” was objectively reasonable. (AR 8.) Petitioner’s claims the investigator provided no evidence of pressure “other than the student’s claim that she ‘felt pressured’ simply because Petitioner was professor,” ignores the reality of the relationship between Petitioner and Student 3. Petitioner was not someone Student 3 could avoid. As noted by Student 3, Petitioner had tremendous authority over her.