Judge Stephen I. Goorvitch, Case Number: 23STCP03371, Date: 2024-08-09 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP03371, Date: 2024-08-09 Tentative Ruling

Petitioner Joel W. Hay, Ph.D. (“Petitioner”), who is approximately 72 years old, was a tenured professor at the University of Southern California (“USC”) who was terminated after making numerous racist and abusive comments to students and colleagues. For example, Petitioner mocked a female South Asian student’s disability and sent her text messages stating:

· “I have come to the conclusion that Indians are the most fucked up mentally of anybody on the planet and they must also do a lot of fucking because there’s so many of them. They need birth control a hell of a lot more than the Chinese.”

· “As Winston Churchill said, in the morning I’ll Be [sic] sober, and you will still be fucking ugly!”

(Administrative Record (“AR”) 3.) On one occasion, Petitioner wrote: “Why are Justin Brooks Ruben Gutman and Steven Fox all from the cancel culture and all Jewish?” (AR 29.) Petitioner referred to someone as having a “nice nazi name.” (AR 3.) Petitioner repeatedly said or wrote “fuck you all” and “fuck off” to colleagues. (Ibid.) Petitioner left a voicemail for a student saying, “Fuck you asshole. Piece of shit.” (AR 27.) These are just a sampling of Petitioner’s comments.

Petitioner does not dispute that he made any of these comments, most of which were in writing. Nor does Petitioner dispute that he violated an order not to contact USC students, faculty, and staff while the investigation was ongoing, which led to a charge of retaliation. Instead, Petitioner argues that USC deprived him of due process; USC abused its discretion in terminating him; and the disciplinary proceedings stemmed from his views on COVID-19, which were protected by tenure. The petition is denied.

Petitioner was a tenured professor in USC’s Department of Pharmaceutical Economics and Policy. (AR 1294-96.) As a faculty member, Petitioner was subject to USC’s Faculty Handbook and Policy Against Discrimination, Harassment, and Retaliation (“DHR Policy”). (AR 62-88, 205, 208- 209.) The DHR Policy “applies to all … faculty” and states that “[a]ny individual found responsible for engaging in Prohibited Conduct in violation of this Policy will face disciplinary sanctions up to and including … termination from employment.” (AR 65.)

As relevant to the charges made against Petitioner, the DHR Policy defines “Harassment,” “Retaliation,” and “Violation of a University Directive” as follows:

· “Hostile Environment Harassment: Harassment occurs when verbal, physical, written, electronic, or other conduct based on an individual's Protected Characteristics is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or denies that individual's ability to participate in or benefit from the University's educational program or activity, … when viewed from both a subjective and objective perspective.” (AR 71-72.)

· “Retaliation: Retaliation means any adverse action, intimidation, threat, coercion, or discrimination against an individual taken for the purpose of interfering with any right or privilege secured by this Policy or federal, state, or local laws or ordinances, and their implementing regulations (e.g., protesting, making a report), or because the individual has made a report or Formal Complaint of Prohibited Conduct….” (AR 76-77.)

· “Violation of a University Directive: Any individual may be found in violation for failure to comply with a University directive regarding a restrictive supportive measure ( e.g., violating the terms of an Avoidance of Contact Directive).” (AR 77.)

The DHR Policy states that USC “is equally committed to maintaining academic freedom, as declared in Section 3-b(l)(a) of the Faculty Handbook, and free speech, consistent with Federal and state law” and that “allegations of harassment involving elements of speech that arise in the educational context will be considered in keeping with the University's commitment to academic freedom and free speech.” (AR 66.)

Between November 2019 and May 2021, USC’s Office of Equity, Equal Opportunity, and Title IX (“EEO-TIX”) received multiple reports that Petitioner violated the DHR Policy. These reports include, but are not limited to, the following:

· In or around November 2019, a graduate student in the School of Pharmacy, identified as “Student 11,” reported to USC that Petitioner had sent her abusive emails in response to her requests for advice on a research paper. According to the report, Petitioner emailed Student 11, “Have you ever had a High School English teacher grade your writing? Do you want me to get my Mom to help you? She’s a retired HS English teacher. I don't have time to fix high school writing.” The report states that Student 11 “received education through high school abroad and speaks English as a second language.” (AR 818-820.)

· In December 2019, a female Indian student identified as “Student 1” reported that Petitioner was “overworking students” and threatening her with retaliation. (AR 463.) In or about January 2021, Student 1 submitted to USC copies of text messages from Petitioner that read: “When are you going to become interested in being honest with me? And explaining to me why you totally freaked out and mentally?;” “I have come to the conclusion that Indians are the most fucked up mentally of anybody on the planet and they must also do a lot of fucking because there’s so many of them;” “They need birth control a hell of a lot more than the Chinese;” “I have no clue why you wanted a kid you’re too fucked up;” “Fuck you 2 bitch;” and “As Winston Churchill said, in the morning I’ll Be [sic] sober, and you will still be fucking ugly!” (AR 3, 461-467.)

· In September 2020, an anonymous alumnus of USC reported that Petitioner posted the following on LinkedIn: “56% of Vietnamese rats have C19 [Covid 19], no Vietnamese deaths, explain? The Vietnamese love to eat rats! They lick and rub them all over their faces and mouths! ZERO DEATHS!” (AR 795-98.)

· In or about May 2021, it was reported to USC that Petitioner wrote the following, among other things, in an email exchange with other USC faculty members regarding the Covid-19 pandemic: “Every fucking one of you is too stupid??? You do realize that you’re on the hook to explain this fucking mess. And none of you can do so? Not even the genius Dana Goldman?” and “Why are Justin Brooks Ruben Gutman [sic] and Steven Fox all from the cancel culture and all Jewish?” (AR 583-585.)

On May 13, 2021, USC placed Petitioner on paid administrative leave. (AR 273.) Respondents later determined that Petitioner violated the terms of his administrative leave by contacting students about a final exam and calling and texting a USC colleague. (See Opposition (“Oppo.”) 12:2-19, citing record; see also AR 37-40.)

On May 19, 2021, the Vice President of EEO-TIX issued a Formal Complaint against Petitioner on behalf the individuals who submitted reports. (AR 94, 275-278.) EEO-TIX issued Petitioner a Notice of Investigation listing the allegations that were to be investigated, and appointed Respondent David Reyes (“Investigator Reyes”) to conduct the investigation. (AR 279-284.)

On several occasions, USC instructed Petitioner that he should notify EEO-TIX (i) “if [he was] an individual with a disability and need[ed] a reasonable accommodation;” and/or (ii) if he needed “assistance with access to supportive measures.” (See AR 281-283, 314, 312, 300-302.) Petitioner never informed Investigator Reyes of any disability or need for reasonable accommodation. (AR 1073-1074.)

Investigator Reyes interviewed Petitioner twice, with his attorney present, on July 20, 2021, and October 7, 2021. (AR 317-319, 2737-40.) During his interviews, Petitioner admitted to, among other things, making the LinkedIn post and the emails to other faculty members regarding the COVID-19 pandemic. (AR 317-319.) Petitioner did not recall sending the text messages to Student 1 quoted above. (Ibid.) With respect to Student 11’s report, Petitioner admitted that the “general theme” of what was stated in the Notice of Investigation was correct, but he did not know if the “verbiage” was as stated. (Ibid.)

Investigator Reyes also interviewed multiple witnesses, including the student that made the formal complaint against Petitioner (“Reporting Party”), Student 1, several other students, and several USC faculty members or other “colleagues.” (AR 6-7.) Among other things, these witnesses reported the following in their interviews:

· Reporting Party told Investigator Reyes that Petitioner asked if Reporting Party believed the New York travel ban was constitutional. When Reporting Party said he was unsure, Petitioner began “five minutes of impassioned yelling” at Reporting Party. Petitioner yelled “so forcefully that he was “yelling himself hoarse” and “was losing his voice while he was yelling.” (AR 35, 398-399.) When asked by Investigator Reyes, Petitioner did not recall the conversation. (AR 337.)

· Student 4 told Investigator Reyes that he became concerned that Petitioner had hit his grandson and felt obligated to call the police on June 11, 2021. (AR 26, 724-730.) According to Student 4, he received later that day an email from Petitioner with the subject line, “Hey [Student 4] are you piece of shit [sic] don’t call cops” and a body of: “Last Time I ever talk to you piece of shit.” Petitioner copied ten people on the email, including four of Student 4’s classmates. (AR 715; 724-726, 728, 730.)

On June 17, 2021, EEO-TIX issued an avoidance-of-contact directive (“AOC Directive”) to Petitioner. (AR 40, 285-289.) The AOC Directive instructed Petitioner “not to approach, attempt to speak to, or otherwise have contact with University students, faculty, and staff” including “through third parties or through electronic means, including but not limited to email, text, or social media.” The AOC Directive stated that “failure to follow this directive could result in further University action, including disciplinary measures, for failure to follow a University directive or as prohibited retaliation.” (AR 40, 285-287.)

EEO-TIX received reports that Petitioner violated the AOC Directive, including, but not limited to, the following:

· Petitioner reportedly left Student 4 a voicemail on August 17, 2021 stating in part: “Fuck you asshole. Piece of shit.” (AR 27, 744.) At his interview, Petitioner did not recall having made the call or left the voicemail. Petitioner speculated that “maybe [he] had too much to drink.” (AR 27, 337.)

· On October 13, 2021, Petitioner sent an email to USC faculty, students, and alumni with subject line “Fwd: Federal Indictment Of Mark Ridley-Thomas Rocks LA City Council And Scand…” (AR 338.) That same date, Petitioner sent two emails to USC faculty, students, and alumni with subject line “USC Sucks.” (AR 339.) He also sent two emails to faculty and students, including Reporting Party, with subject line: “Seriously????” The first email stated, “I have to put up with this bullshit while you are dealing with federal indictments????? Seriously???? You fucking piece of shit.” (AR 340.)

On October 13, 2021, Petitioner sent four emails to Reporting Party and other students, which stated the following: “Maybe you should ask fuckhead [Reporting Party] tell you what’s going on.” “What a fucking back stabbers he [sic].” “Let’s see if USC supports him with all my shit!” “BecausIf [sic] they don’t he’s a pile of shit and he’s gonna have zero dollars the rest is fucking life.” (AR 43-44, 411-412.) Petitioner sent these emails days after his October 7, 2021, interview with Investigator Reyes at which Petitioner was asked about the alleged call with Reporting Party involving the New York pandemic travel ban. (AR 43, 337, 411-412.)

On October 22, 2021, Reporting Party filed a formal complaint of retaliation against Petitioner. (AR 290-291.) EEO-TIX issued an Amended Notice of Investigation to Petitioner on November 1, 2021, adding retaliation as a basis for the investigation. (AR 297-303.)

On November 1, 2021, Investigator Reyes asked Petitioner whether he would like to meet to address the new allegations in the Amended Notice of Investigation. (AR 342.) Investigator Reyes noted that “the new allegations are based on documentary evidence, i.e., email communications.” (Ibid.) Petitioner declined to be interviewed about these emails. On November 4, 2021, Petitioner wrote to Investigator Reyes: “I don’t feel the need to meet. That evening I was drunk and I sent some emails to the wrong addresses.” (AR 341-342.)

On May 6, 2022, Petitioner also emailed the following to USC faculty who were notified about Reporting Party’s upcoming dissertation defense: “NOT ACCEPTABLE!!!!! His thesis is a total fucking fraud. I will complain to Pres. Biden!!!!!” (AR 44-45, 2862-2863.) This May 2022 email was considered by Investigator Reyes in the investigation findings related to the charge of retaliation against Reporting Party. (AR 44-45.)

On November 11, 2021, EEO-TIX invited Petitioner and his attorney/advisor to review the evidence gathered during the investigation (“Evidence Review”). (AR 7, 2819.) At Petitioner’s request, EEO-TIX extended the Evidence Review period to December 2, 2021. (AR 7, 2819.)

On December 2, 2021, Petitioner submitted a written response to Evidence Review. (AR 2840.) Petitioner identified approximately 60 “exculpatory witnesses” to “testify to [his] credentials, behavior, and value [he] brings to the University and [his] area of specialty.” (AR 2838-2839.) Investigator Reyes exercised his discretion not to contact these individuals. (AR 5, 2857.)

G. EEO-TIX Concludes that Petitioner Violated the DHR Policy; and USC Denies Petitioner’s Appeals of the Investigation Findings

On June 2, 2022, EEO-TIX completed its investigation and concluded there was sufficient evidence that Petitioner had violated the DHR Policy, and that Petitioner was responsible for: (i) harassment based on race, national origin, ethnicity, religion, disability; (ii) harassment based on non-protected classifications, (iii) retaliation against Reporting Party, and (iv) multiple violations of university directives. (AR 1-54.)

On July 6, 2022, Petitioner appealed EEO-TIX’s findings on the ground that EEO-TIX failed to interview all the witnesses he identified and failed to keep him apprised of the process. (AR 832, 834.) On July 20, 2022, Elizabeth Graddy (the Provost’s delegate) denied Petitioner’s appeal. (AR 3180-3182.)

On June 24, 2022, the Sanctioning Panel, comprised of tenured faculty members, issued a written letter unanimously recommending that USC initiate dismissal proceedings against Petitioner. (AR 828-830.) Petitioner received the Sanctioning Panel’s “Written Notice of Outcome” on June 29, 2022. (AR 3077.) On July 6, 2022, Petitioner responded to the Notice of Outcome on the same grounds as his appeal of the EEO-TIX findings. (AR 3141-42.) EEO-TIX determined that Petitioner’s response did not constitute an appeal within the terms of USC’s policies. (AR 3141.)

On July 8, 2022, the Sanctioning Panel’s recommendation was sent to University Provost Charles Zukoski. (AR 111, 3144-3147.) Provost Zukowski agreed that dismissal proceedings should commence. On August 12, 2022, the Provost sent Petitioner a Statement of Charges listing, in detail, the conduct being considered as the basis for his termination. (AR 845-849.) The charges included instances of harassment, retaliation, and failure to follow university directives based on the communications summarized above, among others. The charges also included alleged interactions between Petitioner and faculty members dating to 2015. However, the charges did not include Petitioner’s post on LinkedIn about the Covid-19 pandemic in Vietnam, summarized above and in the parties’ writ briefs. (See Ibid.)

The dismissal hearing was held on January 27, 2023, before a three-member Faculty Grievance Panel (the “panel”). (AR 882-883.) USC called four witnesses: Professors Vassili Papadopolous, William Padula, and Geoffrey Joyce, and Investigator Reyes. (See AR 885.) Petitioner had the opportunity to cross-examine those witnesses. (Ibid.) Petitioner also called three witnesses and testified in his own defense. (AR 886.) The panel also considered extensive documentary evidence, including the investigation report, statements of the parties, and evidence presented by Petitioner. (AR 2638.)

At the dismissal hearing, Petitioner did not deny he engaged in the conduct alleged in the Statement of Charges. Nor did Petitioner take full responsibility for his misconduct. As an example, Petitioner did not deny sending inappropriate text messages to Student 1 (e.g., “Indians are the most fucked up mentally of anybody on the planet and they must also do a lot of fucking because there’s so many of them;” “fuck you 2 bitch”). When asked why he sent the text messages, Petitioner testified: “I think I was angry. I think I was frustrated. I think she had let me down, just along with everybody else at the University of Southern California. And so I was upset.” (AR 1156.) He also attributed the text messages to alcohol, stating: “[i]f I was not drunk, I never would have said those thing[s] to her or anyone.” (AR1156.)

As another example, with respect to a voicemail to Student 4 (“fuck you asshole. Piece of shit”), Petitioner testified that he regretted leaving the voicemail, explaining, “I was under the influence of alcohol.” (AR 1162-63.) Petitioner also explained that “[Student 4] was another backstabber.” (AR 1162-63; see also AR 744 [recording of the voicemail].)

On February 1, 2023, after reviewing all the materials submitted by Petitioner and USC, the panel issued a written decision unanimously recommending that President Folt dismiss Petitioner from the University. (AR 2638-2639.) Petitioner provided a post-hearing statement to President Folt on February 16, 2023. (AR 1246-55.)

On June 16, 2023, President Folt issued a detailed, nine-page letter explaining her decision to accept the recommendation of the panel and to dismiss Petitioner from the USC faculty and from his employment with USC. (AR 4533-41; see also AR 243 [“All grievance panel decisions are recommendations to the President of the University.”]) President Folt determined that “the investigation process and the hearing were fair,” that “clear and convincing evidence” established that Petitioner violated USC policies, and none of Petitioner’s “arguments provide a defense, nor a substantial basis for mitigation.” (AR4541.) President Folt agreed that Petitioner’s “pattern of language toward students and faculty was aggressive, profane, disrespectful and offensive” and Petitioner “created an abusive and hostile education and learning environment and failed to uphold the most basic standards for our faculty.” (AR4541.) Notably, President Folt found that “[e]ach of the bullet points in the Provost’s letter and each of these policy violations provides independent and adequate grounds for your dismissal.” (Ibid.)

Under Code of Civil Procedure 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. (Code Civ. Proc. § 1094.5(b).)

Petitioner contends that he has a fundamental vested right in his employment with USC, a private university, and the court is therefore required to apply the independent judgment test to any administrative findings challenged in this writ action. (See Opening Brief (“OB”) 9-10.) The court need not decide this issue. Petitioner has not advanced any argument that USC’s decision is not supported by its findings, or that the findings are not supported by the evidence. Further, even if he had advanced such argument, the court would reach the same result on the writ petition regardless of whether the independent judgment test or the substantial evidence test applies to the court’s review of the administrative findings.

Petitioner is correct that the independent judgment test applies to legal questions raised by the petition, including about the fairness of the administrative process used by USC. “On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “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.)

Petitioner bears the burden of proof and persuasion under Code of Civil Procedure section 1094.5. (See e.g. Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137; Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) 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.)

Petitioner contends that Respondents “failed to ensure promised basic due process safeguards: USC denied him the ability to cross-examine witnesses, curtailed his ability to testify, and staffed his dismissal hearing with inexperienced and biased faculty.” (Opening Brief (“OB”) 1:16-18.) Under Code of Civil Procedure section 1094.5(b), the pertinent issues include 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.) “‘The common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial ... nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for [the respondent] to present his position....’” (Goodstein v. Cedars-Sinai Med. Ctr. (1998) 66 Cal.App.4th 1257, 1265-66.) Due process principles, as applied to administrative proceedings, are similar. (Gross v. Lopez (1975) 419 U.S. 565.)

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928; see Doe v. Regents of University of California (2021) 70 Cal. App. 5th 521, 539– 40 [rejecting a fair procedure claim where the petitioner did not show prejudice].)

In this case, Petitioner received notice of the charges. (See AR 846-849.) Petitioner also had the opportunity to respond to the evidence against him at two interviews with Investigator Reyes. (AR 5, 317-319, 334-337.) Investigator Reyes offered Petitioner a third interview to discuss the allegations of retaliation in the Amended Notice of Investigation, but Petitioner declined. (AR 341-342.) Petitioner had the opportunity to provide exculpatory evidence and to identify witnesses during the fact-gathering stage of investigation. (AR 5-7, 317-319, 334-337, 341-342.) Following the fact-gathering stage of the investigation, Petitioner and his counsel participated in the “Evidence Review,” and Petitioner submitted a written response to the evidence against him. (AR 2837-2846.)

After Investigator Reyes issued the investigation report, Petitioner had the opportunity to appeal the investigation findings to the Provost. (AR 832-834.) After the Sanctioning Panel recommended that USC initiate dismissal proceedings, Petitioner received a formal Statement of Charges outlining the specific “abusive messages” and “statements,” instances in which Petitioner failed to comply with university directives, and alleged acts of retaliation. (AR 846-849.) At the live hearing before the panel, Petitioner had an opportunity to cross-examine USC’s witnesses; to present his own witnesses and testimony; to present documentary evidence, including a declaration of his treating psychiatrist (AR 2628); and to present pre- and post-hearing statements. (See AR 942-1168, 858-869, 2638-39.)

As shown by the investigation report, the Statement of Charges, the panel’s recommended decision, and President Folt’s final decision, the charges and findings against Petitioner were based almost entirely on Petitioner’s own emails, text messages, voicemails, telephonic, or in-person communications. (See 846-849, 4533-41.) In his interviews, correspondence with Investigator Reyes, and at the administrative hearing, Petitioner admitted to making many of the communications or claimed that he did not recall making them because he was “drunk.” (See e.g. AR 341-342, 1156-58, 1160-63.) Petitioner has not shown, with record citation, that he ever disputed the authenticity of the emails, text messages, and other recorded messages upon which the charges were based.

Petitioner contends that he was denied a fair process because the panel limited the hearing to one day. (OB 14-15.) The court disagrees. As an initial matter, tribunals may set reasonable time limits on proceedings:

Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. . . . This view is not only contrary to law but undermines a trial judge’s obligation to be protective of the court’s time and resources as well as the time and interests of . . . other litigants waiting in line to have their cases [tried].

(California Crane School, Inc. v. National Com. For Certification of Crane Operators (2014) 226 Cal.App.4th 12, 20.) The one-day time limit is generally sufficient for “most hearings” at USC. (See AR 3282-83 [Rule 32].)

In this case, Petitioner does not identify any evidence that he was unable to present at the hearing. (See OB 15:1-23, citing record.) To the contrary, Petitioner had sufficient time to present his defense. Petitioner acknowledges that nine witnesses testified during the hearing. (See OB 15:1.) The transcript demonstrates that Petitioner called five witnesses, including himself, and USC called the remaining four witnesses. (See AR 885-886.) Petitioner does not identify any witness he was unable to call. The record shows that Petitioner gave a lengthy statement to the Grievance Panel, both at the hearing and in writing. (See AR 1128-1168, 878-879, 2638-39.) Petitioner also submitted a written statement that was considered by President Folt. (See AR 4534.) Petitioner argues that the panel “cut short” his testimony, and that there was no time for closing arguments, but he does not identify any information he was unable to provide during his testimony or in his post-trial submissions.

Regardless, Petitioner forfeited this issue by not making a formal request for additional time. Chairperson Apostolos explained that she wanted the hearing to be concluded in one day because if they continued to another day, it may be necessary to convene a new panel and “start over,” and she wished to timely complete the process. (AR 903-904, 1065-1066.)[1] After this explanation, Petitioner’s counsel stated: “Great. I'm not criticizing your timing either way. I'm just trying to understand the process you expect to take.” (AR 1066.) Although Petitioner’s counsel objected to the limitation of just one day at the start of the hearing (AR 904), he did not make a formal motion at the end of the hearing to continue for a second day or to convene a new panel. (See AR 1066-67.) Petitioner’s counsel also did not make an offer of proof of the additional testimony he would have elicited at a second hearing. (See AR 4540.)

Finally, even if the time limit constituted a procedural error and Petitioner preserved this issue for review, the court finds that the error was harmless. Petitioner does not demonstrate that the outcome would have been different had he received a longer hearing. (See Doe v. Regents of University of California (2021) 70 Cal. App. 5th 521, 539– 40 [rejecting a fair procedure claim where the petitioner did not show prejudice].)

Petitioner contends that “USC overlooked … due process safeguards [when] [i]t refused to interview any of his identified witnesses during the investigation.” (OB 11.) Pursuant to the applicable Resolution Process, Investigator Reyes “ha[d] the discretion to determine which of those potential witnesses, or other persons, [identified by the respondent] may have relevant information about the alleged conduct.” (AR 107.) Investigator Reyes exercised his discretion not to contact the 60 “exculpatory witnesses” proposed by Petitioner. (AR 5, 2857.)

Petitioner does not demonstrate that this was an abuse of discretion. In his request, Petitioner indicated that the 60 witnesses would “testify to [his] credentials, behavior, and value [he] brings to the University and [his] area of specialty.” (AR 2838-2839.) Petitioner’s credentials and academic value to USC were not in dispute. Although Petitioner stated that the witnesses would testify to his “behavior,” he did not represent that any of the witnesses had observed the “acts in question” or could provide “contextual information” about such acts. (Ibid.) Further, there was no prejudice to Petitioner; he could have called any of these witnesses at the administrative hearing.

Petitioner contends two members of the panel—Chairperson Margo Apostolos and Professor Devin Griffiths—were biased against him because: (1) “the committee chair, Prof. Apostolos, used first names multiple times to communicate with USC’s counsel”; (2) “she interrupted counsel various times expressing opinions against Dr. Hay and supporting USC”; and (3) Professor Griffiths “exhibited a similar tone in USC’s favor” and asked leading questions during the hearing. (OB 15-16.)

“Absent a financial interest, adjudicators are presumed impartial.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219.) “Bias and prejudice are never implied and must be established by clear averments.” (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.) Petitioner must show “‘an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.’” (Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483.)

Although Chairperson Apostolos sometimes referred to Respondent’s counsel by his first name, she also sometimes referred to Petitioner’s attorney and other hearing participants by their first names. (See AR 909, 941-942 [referring to court reporter “Catherine”], 1067:4 [referring to Petitioner’s counsel as “Bret”].) There is no evidence that the Chairperson had a relationship with Respondent’s counsel that required disclosure or disqualification. Mere informality does not establish bias by “clear averments.”

The procedural rules for the panel authorize faculty members on the panel to ask questions and also authorize the chairperson to rule on the relevance of evidence or arguments. (AR 3282 [Rules 31(f) and 32.) Petitioner does not show that Chairperson Apostolos’ rulings on the relevance of certain topics, or the questions asked by Professor Griffiths, exceeded the scope of such authority or reflect an unacceptable risk of actual bias. (See AR 968-970, 973-975, 1037-38.) Commenting on the proceedings or evidence does not constitute bias. “Expressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are not evidence of bias or prejudice.” (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031.)

Petitioner also contends that Chairperson Apostolos, a professor of dance, was “unrelenting and inexperienced” in how she conducted the hearing and that her statements “demonstrated her lack of respect for the hearing.” (See OB 15:5-12 and Reply 3:27-28.) Petitioner highlights the following statement of Chairperson Apostolos:

I’m not an attorney. I am a professor of dance, so the timeline is something I establish. It is the way I run it, this is the way you keep your dance shows on point, you know…. I want to remind everyone, this is a one-day hearing, and we have a lot of material to cover.

(AR 898.) The court disagrees with Petitioner’s interpretation. Taken in context, Chairperson Apostolos simply explained, from her perspective, how she intended to conduct the hearing. Chairperson Apostolos’ reasons for limiting the hearing to one day do not reflect bias, but rather a desire to complete the process in a timely manner. Based on the foregoing, Petitioner has not proven by “clear averments” that any of the panel members were biased.

Petitioner argues that USC’s Faculty Handbook granted him a right to cross-examine the witnesses against him, which included the students who provided information to Investigator Reyes but did not testify. Petitioner focuses on Students 1, 4, and 11. Petitioner has not identified any other witnesses who he contends should have been subject to cross-examination.

Respondents’ counsel argues that private universities need only provide “notice of the charges and a meaningful opportunity to be heard,” and are not required to provide “the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing.” (Oppo. 30:9-14, citing Boermeester v. Carry (2023) 15 Cal.5th 72, 79.) Nevertheless, a university must comply with its own policies and procedures in disciplinary proceedings. (See Teacher v. California Western School of Law (2022) 77 Cal.App.5th 111, 116, citing Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239.)

Each party shall have the opportunity to present its evidence, including witnesses, and to make an argument to the grievance panel. Each party shall have the right to confront and question the witnesses of the other. Each party shall have the right to inspect and respond to all written and documentary evidence offered. Technical rules of evidence, voir dire proceedings, and pretrial discovery proceedings are not applicable.

(AR 241 [bold italics added].) It is unclear whether this rule applies only to the witnesses who testified at the disciplinary hearing or extends to witnesses who provided information to USC’s investigator. The court need not resolve this issue. Even if the latter, there was no due process violation. Petitioner was afforded a hearing at which he could call witnesses; Petitioner never sought to call these witnesses in order to cross-examine them on their statements to Investigator Reyes (i.e., by calling them as adverse witnesses).

Petitioner cites Teacher v. California Western School of Law, but that case is distinguishable. In Teacher, the petitioner had no opportunity to call any witnesses because the proceeding did not involve live testimony. (Teacher, supra, 77 Cal.App.5th at 128-129.) The District Court of Appeal found that the respondent “affirmatively discouraged” the petitioner from exercising his right of cross-examination by informing him that the hearing would “not be a trial” and that there would not be any live witnesses. (Ibid.) By contrast, in the instant case, USC did nothing to prevent Petitioner from calling any students to cross-examine them on their statements to Investigator Reyes.

USC also agreed to make these students available to Petitioner, notwithstanding the “no contact” order. The AOC Directive states that “should you believe that any communication is necessary with respect to the ongoing investigation under the Resolution Process for Discrimination, Harassment, and Retaliation … involving you … , please let me know, and I will assist with making an exception to this directive, as appropriate.” (AR 287.) There is no record that Petitioner ever asked Respondents to contact the students or make them available. (See AR 3366, 4431.)

In the alternative, Petitioner has not persuasively shown that the interview statements of Students 1, 4, and 11, or any other students, were necessary to the final administrative decision. (See OB 16-18, citing record.) The EEO-TIX findings and the panel’s recommendation relied substantially on Petitioner’s own admissions that he sent the emails, texts, and voicemail messages at issue or that he did not remember sending them due to being drunk. (See AR 13, 18, 21, 22, 25, 31, 34, 40, 341-342, 1156-1158, 1160-1163.) These facts were undisputed. Indeed, President Folt informed Petitioner: “You did not deny any of the behavior charged against you, though you testified you did not remember some of it.” (AR 4533.) To establish that he was prejudiced by the lack of cross-examination, Petitioner would need to explain how the interview statements or summaries were actually relied upon and material to each of the policy violations that, independently, supported his dismissal, separate and apart from his admissions of misconduct. Petitioner has not made that showing. The court has no obligation to “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.)

In his opening brief and reply, Petitioner has not advanced any argument that the administrative findings are not supported by the evidence or that the findings do not support the decision. (See Code Civ. Proc. § 1094.5(b).) Accordingly, Petitioner has forfeited that issue. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].) Further, exercising its independent judgment on the record, the court also concludes that the administrative findings in the panel’s letter and President Folt’s final decision are supported both by the weight of the evidence and by substantial evidence. As discussed, the charges and findings are based primarily on Petitioner’s own emails, text messages, or other communications. Petitioner did not dispute the authenticity of these communications. Nor did Petitioner dispute that he engaged in the conduct at issue.

Petitioner contends that Respondents abused their discussion by failing to evaluate “exculpatory evidence,” specifically Petitioner’s “deteriorating mental health” and alcoholism. (See OB 1-2 and 10-13.) That is not correct; the panel and the president considered these issues.

The Resolution Process states that “[t]he investigation report will include all relevant information provided by either party, including inculpatory and exculpatory information, that will be used in the determination of responsibility or sanction.” (AR 104; see also AR 107-109.) Petitioner had the opportunity to present exculpatory information to Investigator Reyes at his interviews. (AR 5, 317-319, 334-337.) The report includes details of Petitioner’s explanations of his conduct, including his “general frustration” about his colleagues’ views on the COVID-19 pandemic (AR 29), his “frustration” about the investigation itself (AR 40), and that “he may have had ‘too much to drink.’” (AR 42.)

The panel’s recommendation and President Folt’s dismissal decision further demonstrate that Respondents considered Petitioner’s arguments for mitigation, including based on his alleged alcoholism and mental health issues and isolation during the COVID-19 pandemic. (AR 4535-38.) As examples, President Folt found that Petitioner’s psychiatrist “offered no opinion connecting your alcohol abuse disorder to your emails or your in-person interactions.” (AR 4536-37.) President Folt found:

Your lawyer claims it should have been obvious to the school that you had a mental disorder, but that cannot be so. Even the psychiatrist who saw you for 16 sessions provided no evidence of a mental condition other than alcohol abuse disorder during the first four months of 2022.

Neither a claim for alcoholism over the long period of your misbehavior, nor the claim about your mental and emotional condition, were established. And your attempts to blame your purported conditions on the actions or inactions of your colleagues have no merit. In any case, those purported conditions do not constitute a defense to your outrageous behavior as your behavior was widespread and long preceded the special circumstances which you contend led to your conditions.

(AR 4538.) Further, exercising its independent judgment on the record, the court concludes that President Folt’s findings regarding the alleged mitigating circumstances are supported both by the weight of the evidence and substantial evidence.

Petitioner argues that Respondents abused their discretion in failing to take sufficient action, short of dismissal, to “help” him with his mental health issues, feelings of isolation, and alleged alcoholism. Specifically, Petitioner contends that Respondents should have:

(1) “involve[d] professionals that could help Dr. Hay”; (2) placed Petitioner on a “Special Leave of Absence”; and (3) “ma[d]e reasonable accommodation for the known … mental disability” of Petitioner. (OB 10-13.) Petitioner also argues that USC should have offered him “supportive measures.” (OB 13-14.)

Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, or other similar measures.

(AR 85.) Among other evidence, Petitioner cites evidence that “at least 11 people at USC—administrators, deans, department chairs, investigators, and an associate general counsel, among others—knew about Dr. Hay’s deteriorating mental health.” (OB 11:7-11, citing AR 1-54, 461-462, 466-467, 481, 493-498, 517-519, 525-529, 538, 582-604, 617-619, 622, 709-710, 797-800, 2255.)

To the extent Petitioner’s argument is that Respondents were required to take certain action under the Fair Employment and Housing Act (“FEHA”) or the Americans with Disabilities Act (“ADA”), those issues are not before the court on this petition for writ of administrative mandate. Regardless, Petitioner is incorrect to the extent he suggests that Respondents could not dismiss his employment for alcohol-related misconduct. (See Labor Code § 1025.)

Instead, Petitioner seems to argue that USC abused its discretion in terminating him when there were less drastic options available. The court finds that USC did not abuse its discretion in imposing the penalty of termination. As discussed, USC considered all of the aggravating and mitigating factors. The decision to terminate Petitioner is supported by the findings, and the findings are supported by the evidence.

Finally, Petitioner alleges that Respondents violated his right to academic freedom “by initiating a drawn-out investigation and career-ruining disciplinary proceeding against him after he posted his theory about the effects of the Vietnamese diet on the COVID-19 mortality rate in Vietnam on LinkedIn.” (OB 18-19.) There is no evidence that these proceedings were retaliatory. The Statement of Charges, upon which the dismissal was based, did not include Petitioner’s post on LinkedIn regarding “the COVID-19 mortality rate in Vietnam.” (AR 845-849.) As phrased by President Folt, “Your COVID-related statements are not any part of the Provost's charges against you.” (AR 4535.) Petitioner has not identified any specific factual allegation in the Statement of Charges, or any factual finding in the panel’s letter or President Folt’s decision, that was based on Petitioner’s academic views or statements. To the contrary, the disciplinary proceedings were supported by ample evidence of racist and abusive comments by Petitioner.

2. Respondent’s counsel shall lodge a proposed judgment for the court’s signature.

[1] Chair Apostolos stated, “I’m pretty much not going to be available for a while, so that's why I would really like to get our committee with our statement today by 5:00 o’clock.” (AR 1066.)