Thornbrough v. Western Placer Unified School District , 167 Cal. Rptr. 3d 24 ( 2013 )

Filed 12/23/13 Thornbrough v. Western Placer U. Sch. Dist. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
MICHAEL THORNBROUGH, C068317
Plaintiff and Appellant, (Super. Ct. No. SCV25444)
v.
WESTERN PLACER UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
Michael Thornbrough appeals from a judgment denying his mandamus petition,
which sought to overturn his dismissal as an Assistant Director of Maintenance for the
Western Placer Unified School District (District). On appeal, Thornbrough raises a
number of issues, including principally claims of notice violations at the underlying
administrative hearing, bias by the hearing officer, and the improper use of legally-
protected expressive conduct (protected speech) to support discipline.
1
The record shows that Thornbrough was involved in raising public awareness of
problems arising from District construction projects. However, the record also shows he
displayed blatant insubordination to a newly-appointed female supervisor, Cathy Allen,
used a District computer for private purposes--including storing pornography--in
violation of District rules, and retaliated against employees who had filed a prior sexual
harassment claim against him. Three witnesses, District Superintendent Scott Leaman,
Allen, and a management psychologist, opined he should be terminated.
We conclude Thornbrough has not established any due process notice violations,
because the record supports the trial court’s finding that he was offered continuances to
meet amended charges as they arose and, contrary to Thornbrough’s view, no statute or
rule precluded the filing of amended charges.
We also agree with the trial court that the record shows Thornbrough’s challenge
to the neutrality of the hearing officer was both untimely and meritless.
We sustain the trial court’s finding that even if any of the disciplinary charges
arose from Thornbrough’s protected speech, the separate and extensive evidence of his
wrongdoing amply justified termination.
We reject Thornbrough’s subsidiary contentions of error, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Procedure
The original disciplinary charges against Thornbrough were filed on June 16,
2008. After a 15-day administrative hearing, the hearing officer issued a 22-page
decision on April 26, 2009, recommending that the District terminate Thornbrough.
The District adopted the recommendation.1
________________________________________________________________
1 Although the hearing officer merely recommended findings to the District, for
convenience we refer to those “findings” as those of the hearing officer, as do the parties.
2
Thornbrough then filed the instant mandamus petition. On January 25, 2011,
the trial court issued a 57-page statement of decision rejecting his arguments.
Thornbrough appealed from the ensuing judgment. 2
Facts
The trial court confirmed the bulk of the hearing officer’s factual findings.
We provide a brief summary of relevant facts here.3
The District hired Thornbrough in 1997, and his day-to-day work was competent.
As Assistant Director of Maintenance, he supervised some employees and was required
to “maintain effective working relationships” with other staff, and obey “all district
requirements and Board of Trustee policies.”
In 2006, Thornbrough and his immediate supervisor, Director of Maintenance
Frank Nichols, reported suspected wrongdoing in connection with District construction
projects, and Leaman testified the District had to engage in litigation involving past
projects, which is why he reorganized the administration and chose Allen to oversee
construction projects.
In August 2007, Thornbrough and the District settled a prior disciplinary action.
In part, the prior action accused Thornbrough of referring to David Zinzun, Jr. (David),4
________________________________________________________________
2 By minute order, we previously denied the District’s motion to dismiss the appeal as
untimely. Because the point is not renewed in the briefs, we do not address it.
3 Thornbrough’s briefing omits salient facts found true both by the hearing officer and by
the trial court, and where he describes evidence, he paints it in the light most favorable to
himself. By doing so, he has forfeited any evidentiary claims he may have raised. (See
Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881; Overaa Construction v.
California Occupational Safety & Health Appeals Bd. (2007) 147 Cal. App. 4th 235, 251;
Estate of Palmer (1956) 145 Cal. App. 2d 428, 431.) Further, he makes factual assertions
unsupported by record citations, which we disregard. (See Duarte v. Chino Community
Hospital (1999) 72 Cal. App. 4th 849, 856.)
4 Because David Zinzun, Jr., and his wife Rhia share a common surname, we refer to
them hereafter by their respective first names.
3
a subordinate of Mexican ancestry, as “Paco” and “Pepe,” in a derisive manner. The
prior action also accused Thornbrough of making an offensive comment about the breasts
of David’s wife, District employee Rhia, the daughter of former District employee
Richard Noyes, in the presence of David and Noyes, conduct Thornbrough admitted in
his testimony in this case. The settlement called for Thornbrough to be placed on unpaid
leave for 15 days and undergo sexual harassment prevention training.
When Thornbrough returned to work on August 15, 2007, Leaman ordered him
not to contact Rhia and not to go to the District office without explicit permission from
specified employees. Leaman viewed this order as part of his management powers, not
as discipline. Thornbrough sent an e-mail from his District computer to a former District
employee, Jay Stewart, discussing this order, showing that he understood it.5
Nonetheless, the next day, August 16, 2007, Thornbrough went to the District
office without proper permission and spoke with Rhia, claimed he shut the door at her
request, and claimed he apologized to her. Her testimony was less benign: She testified
he sent her an e-mail asking to meet and she agreed, expecting him to apologize. Instead,
he came in, the door shut and accidentally locked, and Thornbrough tried to justify his
________________________________________________________________
5 Thornbrough used his District computer to send other e-mails to Stewart about District
matters, specifically regarding Allen’s fitness for office--including accusing her of “lack
of brightness” and stating Stewart would not believe how much she “destroyed our
department”--and regarding a forged contract issue. (See fn. 6, post.) He also used his
District computer on District time to draft some of the documents in which he accused
Allen and others of misconduct.
In the reply brief, Thornbrough asserts that his communications with Stewart were
“private” and therefore could not be used to support discipline. He did not head and
argue this “privacy” claim in the opening brief, therefore we deem this belated contention
to be forfeited. (See Utz v. Aureguy (1952) 109 Cal. App. 2d 803, 808 (Utz).) Further, he
does not show where he raised this issue at the administrative hearing or in the trial court,
another basis for our finding the issue forfeited. (See Woodland Joint Unified School
Dist. v. Commission on Professional Competence (1992) 2 Cal. App. 4th 1429, 1449.)
4
comment about her breasts, said “negative things” about David and Noyes, suggested he
had been instrumental in having her hired, and mentioned favors he had done for her and
her mother, to make her feel guilty about having filed a complaint, which made her so
upset that she cried. She later learned Thornbrough claimed she had falsified personnel
records of David, when in reality all she had done was mistakenly place a document
pertaining to David in the personnel file for David Zinzun, Sr. (David Sr.), David’s father
and Rhia’s father-in-law.
Thornbrough testified he referred to Rhia’s breasts to show David and Noyes the
inappropriateness of comments they had made, and claimed he met her to apologize to
her, at David’s suggestion and with the approval of another employee, albeit not one with
authority to approve the meeting. He was found to lack credibility.
Also on August 16, 2007, Thornbrough and Nichols submitted a “binder” to the
District’s Board, a copy of which was given to the Grand Jury, raising purported
improprieties regarding District construction projects.
At a meeting on September 18, 2007, the District’s Board promoted Allen to
Assistant Superintendent of Facilities and Maintenance Services, an action openly
opposed at the meeting by Thornbrough, who accused Allen of “intentionally
deceiv[ing]” the Superintendent and the Board and the community, and claimed a current
Grand Jury investigation was partly due to Allen’s “intentional sabotage” of the
relationship between the maintenance department and the District. Thornbrough later
stated he did not need Allen to tell him his job, called her a “fucking bitch,” accused her
of a “lack of brightness,” and in a letter to her dated December 15, 2007, he criticized her
abilities, claimed she was sending “our department backwards,” and that “we do not need
more bureaucrats[,]” among other insubordinate comments and actions, leading the trial
court to find Thornbrough “simply did not respect lines of authority in the workplace and,
apparently, he did not care who knew that.”
5
Allen testified her promotion to assistant superintendent was effective October 1,
2007, and she previously had been the District’s director of site development as of July 1,
2006. Essentially, “from day one” she had problems with Thornbrough and Nichols,
which she documented. They questioned her competence and authority, resisted change,
and forced her to enlist Leaman to support her on “small things” that were otherwise
unworthy of his time. Thornbrough was routinely discourteous and insubordinate to her.
Thornbrough lacked the ability to lead and work with other people and would never
change. Allen testified “the way” Thornbrough raised claims with the District Board and
Grand Jury--including using lies and half-truths--“more than deserves termination[,]”
though she agreed it would be improper to punish him for protected speech itself.
David testified that after he had complained about Thornbrough’s comments about
Rhia’s breasts, Thornbrough treated him differently, did not talk to him, and then falsely
accused him of workers’ compensation fraud, the inquiry into which upset him and
caused him to be placed on medication. David’s working conditions had improved since
Thornbrough had been placed on administrative leave, but he anticipated retaliation for
his testimony at the administrative hearing against Thornbrough.6
On or about January 7, 2008, Thornbrough filed a written report claiming David
had filed a false workers’ compensation report. He later accused Rhia of improperly
recording absences for David, accused Leaman of failure to properly investigate claims
of misconduct, and accused Allen of incompetence, claims replicated in new complaints
to the District Board and the Grand Jury in April and May, 2008.7 In an e-mail to Noyes,
________________________________________________________________
6 There were other disturbing references to witness intimidation at the administrative
hearing stage of this case.
7 A great deal of hearing evidence revolved around a supply contract Thornbrough
implied Allen forged or improperly condoned. The evidence showed Allen did not forge
the contract, and the District was not harmed because the contract was deemed void. But
6
Thornbrough referred to Allen and her assistant as “girls” who had a plan to get him and
Nichols out of their way.
Dr. Larry Fogli testified as an expert in organizational psychology. After
reviewing letters and e-mails Thornbrough wrote, and interviewing Leaman, Allen, and
others, he reached the conclusion that no one trusted Thornbrough, he was disruptive, and
he had no willingness to change his behavior, making him ineffective as a manager,
therefore he should be terminated.
Leaman had been the District’s superintendent since July 2006, and previously
was an assistant superintendent, principal, and teacher. Since Leaman became the
superintendent, Thornbrough had been a “drain” on his time, and it became clear he was
retaliating against the employees who reported him for sexual harassment, by making
claims against David and Rhia that were investigated and proved baseless. Keeping
Thornbrough on would be detrimental, inasmuch as he ignored the chain of command
and was insubordinate, spread rumors and made false statements, and refused to let issues
go or conform to proper management practices. Based on everything he had seen and
heard at the administrative hearing which he had attended, Leaman’s view that
Thornbrough should be terminated was “only . . . reinforced further[.]”
Massive amounts of downloaded pornographic and otherwise inappropriate
material were found on Thornbrough’s District computer, and a computer forensic expert
testified that the material’s download and storage was not inadvertent. Some of the
images used the word “bitch” or otherwise denigrated women, one mocked Mexicans,
and one mocked sexual harassment. Two of Thornbrough’s own witnesses, and
Thornbrough himself, agreed some of the images were inappropriate, although
the hearing officer found Thornbrough acted merely with poor judgment, not dishonesty,
in raising claims about that contract.
7
Thornbrough--a managerial employee--claimed he was unaware of the District’s written
computer policy, which clearly barred such material.
Nichols testified Thornbrough admitted surreptitiously tape-recording a meeting
with Allen and another employee.8
The hearing officer sustained most--but not all--of the charges against
Thornbrough. Thornbrough was insubordinate toward Allen, and the incident involving
going to Rhia’s office after a clear order not to do so was particularly egregious, a finding
explicitly endorsed and emphasized by the trial court. The hearing officer found
Thornbrough willfully misused District computer equipment both to store pornography
and other inappropriate material, and to communicate confidential information to a
former District employee. The hearing officer found Thornbrough engaged in retaliation
by confronting Rhia, by claiming she mishandled time records for her husband, and by
claiming her husband filed a false workers’ compensation report. The hearing officer
found Thornbrough violated professional standards by surreptitiously tape-recording a
meeting with Allen. The hearing officer rejected Thornbrough’s claim that he was the
victim of retaliation for engaging in protected speech, finding that was not the motivating
cause of the charges, and in any event, the evidence apart from any alleged retaliation
amply supported termination. 9
The trial court found Thornbrough’s reports of wrongdoing were not legally
protected speech, but separately found his termination was justified based on misconduct
unrelated to claimed protected speech.
________________________________________________________________
8 Thornbrough invoked the Fifth Amendment when he was questioned at the hearing
about this alleged tape-recording. (See Pen. Code, § 632.)
9 The hearing officer’s findings were made under the rubrics of insubordination,
incompetence, discourtesy, willful disobedience, and violation of professional standards,
but it is not important now to detail under which particular rubric(s) each incident fell.
Other findings will be discussed post where relevant.
8
DISCUSSION
I
Standard of Review
We have summarized the standard a trial court applies in mandamus proceedings
arising from public employment administrative hearings as follows:
“The trial court was required to exercise its independent judgment of the
evidence before the [District]. [Citation.] In so acting the trial court had the
power to make credibility findings....
“. . . . . .
“The trial court should have begun with a strong presumption that the
[District]’s decision was correct, and placed on [appellant] the burden of proof to
show that the decision was against the weight of the evidence. [Citation.] As
explained by the California Supreme Court, ‘“[R]arely, if ever, will a board
determination be disturbed unless the petitioner is able to show a jurisdictional
excess, a serious error of law, or an abuse of discretion on the facts.”’” (Sager v.
County of Yuba (2007) 156 Cal. App. 4th 1049, 1053; see Fukuda v. City of Angels
(1999) 20 Cal. 4th 805, 816-824 (Fukuda); Davis v. Los Angeles Unified School
Dist. Personnel Com. (2007) 152 Cal. App. 4th 1122, 1130-1131.)
On appeal we apply the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p.
824.) We must view the “evidence in the light most favorable to the trial court, indulging
in every reasonable inference in favor of the trial court's findings and resolving all
conflicts in its favor.” (Breslin v. City and County of San Francisco (2007) 146
Cal. App. 4th 1064, 1078.) However, “we make an independent review of any questions
of law necessary to the resolution of this matter on appeal[,]” (id. at p. 1077) including
the interpretation of rules of law, and whether the procedures comported with due process
(Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal. App. 4th 95, 107-108).
We address Thornbrough’s claims largely in the order in which he briefs them.
9
II
Notice of Charges
Thornbrough contends the several amendments to the District’s charges against
him violated Education Code section 45113, subdivision (c) (§ 45113(c)) and due process
of law. We agree with the trial court that section 45113(c) did not prohibit amending the
charges, and that because Thornbrough was offered continuances after each amendment
to meet any new charges, no due process violation occurred.
A. Section 45113
The pertinent portion of section 45113(c) provides as follows:
“The governing board shall adopt rules of procedure for disciplinary
proceedings which shall contain a provision for informing the employee by written
notice of the specific charges against him or her, a statement of the employee’s
right to a hearing on those charges, and the time within which the hearing may be
requested which shall be not less than five days after service of the notice to the
employee, and a card or paper, the signing and filing of which shall constitute a
demand for hearing, and a denial of all charges.”
Pursuant to this section, the District adopted what is referred to in the record as
“Regulation 4218(6),” providing as follows:
“At any time before an employee’s appeal is finally submitted to the Board
or to a hearing officer for decision, the complainant may, with the consent of the
Board or hearing officer, serve on the employee and file with the Board an
amended or supplemental recommendation of personnel action.
“If the amended or supplemental recommendation presents new causes or
allegations, the employee shall be afforded a reasonable opportunity to prepare
[his or her] defense. Any new causes or allegations shall be deemed controverted
and any objections to the amended or supplemental causes or allegations may be
made orally at the hearing and shall be noted on the record.”
Regulation 4218(6) is consistent with formal administrative hearing practice.10
“In a formal hearing, the accusation or statement of issues may be amended before the
________________________________________________________________
10 Government Code section 11507, part of the Administrative Procedures Act, partly
10
case is submitted. [I]f new charges are presented, the respondent must be afforded a
reasonable opportunity to prepare a defense to them. New charges are considered
controverted, and objections to the amended pleading may be made orally. [Citation.]
Authorities seem to agree that amendments to administrative pleadings should be freely
allowed during as well as before the hearing, subject to the qualification that if new
issues are raised or a party is surprised, the aggrieved party should have an opportunity
to prepare a defense.” (Cal. Admin. Hearing Practice (Cont.Ed.Bar 2d ed. 2011) The
Hearing Process, § 7.119, p. 420, emphasis added; see Taylor v. City of Los Angeles
(1997) 60 Cal. App. 4th 611, 617 [applying “the general rule that amendments to conform
to proof are within the broad discretion of the presiding officer of administrative
bodies”].) Whether to grant a continuance, and the proper length of a continuance, are
entrusted to the discretion of the hearing officer. (See Rudolph v. Athletic Com. of CA
(1960) 177 Cal. App. 2d 1, 12-14 (Rudolph); Cal. Admin. Hearing Practice, supra, § 6.65,
p. 305.)
Thornbrough interprets section 45113(c) to entitle him to “at least five days to
request a hearing on the newly filed charges” each time an amended statement of charges
was filed. But the statute required the District to adopt rules providing for “written notice
of the specific charges against [the employee], a statement of the employee’s right to a
hearing on those charges, and the time within which the hearing may be requested which
shall be not less than five days after service of the notice to the employee[.]” (§
provides: “At any time before the matter is submitted for decision the agency may file or
permit the filing of an amended or supplemental accusation. . . . If the amended or
supplemental accusation presents new charges the agency shall afford respondent a
reasonable opportunity to prepare his defense thereto, but he shall not be entitled to file a
further pleading unless the agency in its discretion so orders. Any new charges shall be
deemed controverted, and any objections to the amended or supplemental accusation may
be made orally and shall be noted in the record.” (Stats. 1945, ch. 867, § 1, p. 1629.)
This statute clearly permits multiple amendments. (See 20 Ops.Cal.Atty.Gen. 192, 193
(1952).)
11
45113(c).) The five-day period referenced in the statute plainly pertains to and only to
the minimum time an employee must be given to request a hearing. Here, the proposed
action against Thornbrough was termination, he had notice of that proposed action on
June 16, 2008, and he evidently promptly requested a hearing to contest that proposed
action. Thereafter, amendments to the charges were governed by Regulation 4218(6), not
by section 45113(c).11
Accordingly, we reject Thornbrough’s contention that section 45113 was violated.
B. Due Process
Thornbrough also contends the various amendments thwarted his ability to prepare
and present an adequate defense to the charges, thereby violating due process. To assess
Thornbrough’s claim, we first outline the procedural history regarding the different
charging documents in this case.
1. The Charging Documents
The original charges were filed on June 16, 2008.
Amended charges were filed on September 8, 2008.
________________________________________________________________
11 Contrary to Thornbrough’s view, Coburn v. State Personnel Bd. (1978) 83 Cal. App. 3d
801 (Coburn), did not hold that due process requires a five-day continuance after every
amendment to a charging document. It construed an administrative regulation in light of
due process principles to require a minimum of five days of notice before the effective
date of “‘any punitive action’” against an employee, to give the employee at least five
days to respond to the “‘proposed action’” against the employee. (Coburn, supra, 83
Cal.App.3d at pp. 805-806 & fn. 2.) Similarly, California School Employees Assn. v.
Livingston Union School Dist. (2007) 149 Cal. App. 4th 391 (CSEA), involved the time
period for requesting a hearing on a proposed punitive action, and held such period could
not run from the date a vague notice was mailed to the employee, because that deprived
the employee of adequate time to request a hearing under section 45113. (CSEA, supra,
149 Cal.App.4th at pp. 396-400.) Neither of these cases involved the amendment of
charges after a hearing has already been initiated by timely request of the employee.
Cases are not authority for propositions not considered. (Hart v. Burnett (1860) 15 Cal.
530, 598.)
12
On the first day of the administrative hearing, November 18, 2008, Thornbrough’s
counsel objected that some exhibits referenced in the District’s hearing brief pertained to
allegations not embraced by the charges. He initially asked for a three-week continuance
to secure witnesses and review exhibits. In response, the District suggested a two-week
continuance, and asked for an order that Thornbrough not be paid during any continuance
he requested. The parties discussed the issue off the record, then agreed that by
November 21, they would present objections to evidence, responses would be filed by
November 26, and the hearing would resume December 8, 2008, after a second
telephonic prehearing conference on December 3, 2008. They agreed Thornbrough’s pay
would not be stopped during the continuance.12 Thus, as the trial court found,
Thornbrough received a three-week continuance, from November 18 to December 8, as
he had requested.
On December 5, 2008, after the telephonic conference, the hearing officer granted
the District’s motion to file a second amended accusation, consolidating issues referenced
in the District’s hearing briefs of November 17 and 26, 2008 into “a single document[.]”
The order finds Thornbrough was not prejudiced because he had had “over two weeks” to
prepare to meet the issues, had stipulated to continue the hearing until December 8, 2008,
and although the hearing officer invited Thornbrough’s counsel to “set forth with
specificity further actions necessary to prepare a defense and a reasonable estimate of the
time necessary to do so[,]” counsel had not done so, accordingly, the amendment was
granted.
________________________________________________________________
12 It appears Thornbrough’s pay was stopped once the District adopted the hearing
officer’s recommendation and terminated him.
13
On Monday, December 8, 2008, the second amended charges were filed.
Thornbrough agreed on a 24-hour continuance, but reserved the right “to request a
specific continuance based on the lack of discovery.”13
The next day, Thornbrough’s counsel claimed a due process violation, based on
new charges, vague charges, time-barred charges and lack of disclosure of evidence. But
he agreed to proceed, claiming it would be financially prohibitive to seek a continuance,
but he did not offer any evidence or offer of proof to support this claim.
During the fifth hearing day, Thursday, December 11, 2008, Thornbrough’s
counsel became disruptive, but declined the hearing officer’s offer of a break, claiming a
break would cause expense to his client. Counsel again offered no evidence or offer of
proof to support the claim of financial hardship.
On December 17, 2008, after the District rested, Thornbrough’s counsel claimed
the various charging allegations and purported new evidence had surprised him, but that
Thornbrough’s finances had precluded asking for a continuance. However, once again
counsel presented no evidence or offer of proof to show financial hardship.
On December 19, 2008, the parties discussed scheduling over the holidays and the
need to serve certain subpoenas, and ultimately the hearing resumed on January 12, 2009,
after a three-week break.
On Thursday, January 15, 2009, the District moved to amend to conform to proof,
to add claims based on alleged perjured testimony by Thornbrough regarding e-mails
purporting to be to and from the Governor’s office, and based on evidence of the tape
recording. Thornbrough’s counsel again claimed Thornbrough could not afford the legal
fees caused by requesting a continuance. Again he offered no evidence and made no
detailed offer of proof to support his claim.
________________________________________________________________
13 In his briefing, Thornbrough inaccurately states the hearing officer denied his motion
to continue.
14
The third requested amendment was granted, and Thornbrough’s request for a
week’s continuance to meet the new charges was granted.
2. Analysis
“The essence of procedural due process is notice and an opportunity to respond.
[Citation.] ‘The purpose of notice under the Due Process Clause is to apprise the affected
individual of, and permit adequate preparation for, an impending “hearing.”’” (Gilbert v.
City of Sunnyvale (2005) 130 Cal. App. 4th 1264, 1279.)
The record shows Thornbrough effectively stipulated to a continuance after the
first amendment to the charging document, agreed to a 24-hour continuance after the
second amendment, and was granted the one-week continuance he requested after the
third amendment. Although his briefing complains about the multiple amendments, he
presents no coherent explanation of how any particular amendment compelled an
additional continuance or otherwise prejudiced him. Yet the time necessary to respond to
an amendment is necessarily fact-specific to the particular proceeding, taking into
account “all of the circumstances[.]” (Rudolph, supra, 177 Cal.App.2d at pp. 12-14.)
We see nothing in the timeline of relevant procedures that violated due process.
In Raab v. Dept. of Alcoholic Beverage Control (1960) 177 Cal. App. 2d 333
(Raab), applying Government Code section 11507 (quoted ante), the court rejected a due
process claim, finding that, despite several amendments to the accusation, “although
objection was made, no continuance was sought and the parties proceeded with the
hearing.” (Raab, supra, 177 Cal.App.2d at p. 334; see also Anserv Ins. Services, Inc. v.
Kelso (2000) 83 Cal. App. 4th 197, 208-209.) Here, when Thornbrough objected (through
counsel) he received continuances, and although he claimed inability to seek further
continuances because he could not afford it, he never provided evidence or even a clear
offer of proof about his financial condition. At one point he claimed no income except
for his salary, but there was never any offer of proof of his financial resources, nor the
probable cost of any continuance. The mere assertions of counsel did not amount to
15
evidence of financial hardship. (See Beagle v. Vasold (1966) 65 Cal. 2d 166, 176; Estate
of Pittman (1980) 104 Cal. App. 3d 288, 295.)
Accordingly, having failed to demonstrate why the given continuances were not
adequate, and having failed to excuse his failure to seek further continuances if needed,
Thornbrough has failed to establish any due process violation based on inadequate notice
of the various amended disciplinary charges.
III
Impartial Hearing Officer
Thornbrough next contends he “was denied due process and an impartial decision
maker after the hearing officer refused to disclose potential conflicts of interest based on
his past and present associations with counsel for the District and the contract by which
he was retained by the District.” We agree with the hearing officer and the trial court that
Thornbrough’s requests were untimely, and agree with the trial court that no financial-
incentive bias is shown by this record.
A. Procedural Background
On January 13, 2009, the twelfth day of the hearing, when asked if Thornbrough
had told him that he had recorded conversations, Nichols refused to answer. The hearing
officer directed him to answer, and Thornbrough’s counsel lectured the hearing officer
about his purported duties to protect witnesses from potential criminal liability, and went
so far as to “admonish” the hearing officer as a member of the State Bar. Nichols then
answered that Thornbrough told him he taped a conversation, once, in September 2007,
involving Allen and her assistant. Nichols suspected this was illegal, but did not
reprimand Thornbrough.
At the end of that hearing day, Thornbrough’s counsel stated “it’s been noted that
I think on two occasions that the hearing officer represents school districts. Would you
divulge which school districts your office represents?” The hearing officer suggested the
query was belated, but asked for a written motion.
16
On January 14, 2009, Thornbrough filed a written motion to have the hearing
officer disclose “potential” conflicts of interest. The motion acknowledged counsel had
learned the hearing officer’s identity on November 8, 2008, 10 days before the first
hearing date, and two days before the first prehearing teleconference, but claimed there
had been “no adequate opportunity to determine [the hearing officer’s] relationship to
opposing counsel and the school district” before the hearing began. Counsel did not
explain why he could not have asked for this information at the prehearing conferences,
or on the first day of the administrative hearing. The motion alleged that counsel had
learned the hearing officer “represents school districts[,]” works for a law firm that has
represented school districts, and that law firm “has an office” “essentially across the
street from 555 University Avenue, Sacramento,” where trial counsel for the District
maintains offices. No evidence was attached to support these claims. The motion asked
the hearing officer to disclose (1) “[p]ast or present representation of school districts[,]”
(2) “[p]ast or present associations” with the District’s lawyers, and (3) the “contractual
arrangement” with the District.
The hearing officer directed the District to file a written response to the motion,
but also stated on the record that he had been hired “as an independent hearing officer”
by the District, had never previously performed any services for the District or any of its
principals, and had never met any District Board members.
The District’s response emphasized 12 days of hearings had taken place, and
surmised the hearing officer’s rulings had inspired the disclosure request. Supporting
declarations showed the hearing officer’s office was in Folsom, and Thornbrough’s
counsel had been so advised on November 7, 2008.14 The District’s lead trial counsel
declared that he had not met the hearing officer before November 2008, had spoken with
________________________________________________________________
14 Two prehearing orders made by the hearing officer before Thornbrough raised this
issue also state the hearing officer’s office address was in Folsom.
17
him “years ago,” but had “no recollection” of that conversation. The District’s general
counsel overseeing this case declared she advised Thornbrough’s counsel of the hearing
officer’s identity on November 7, 2008, and gave him the hearing officer’s law office
contact information.
In a written order, the hearing officer found the motion was untimely, because it
was made after 12 days of hearings and more than two months after he had been selected.
The order also states the hearing officer was “aware of no potential or actual conflicts of
interest that require disclosure in this matter.”
The trial court found Thornbrough’s motion to disclose was untimely, but also
found no due process violation based on financial incentive bias.15
B. Analysis
Our Supreme Court has stated the general rule regarding impartial administrative
adjudicators as follows:
“When, as here, an administrative agency conducts adjudicative
proceedings, the constitutional guarantee of due process of law requires a fair
tribunal. [Citation.] A fair tribunal is one in which the judge or other decision
maker is free of bias for or against a party. [Citations.] Violation of this due
process guarantee can be demonstrated not only by proof of actual bias, but also
by showing a situation ‘in which experience teaches that the probability of actual
________________________________________________________________
15 The trial court also expressed its view that the hearing officer should have responded
more explicitly to Thornbrough’s counsel’s questions, or “elaborate[d] better in
disclosing his past or future relationship with the District[.]” We agree in at least one
respect: Thornbrough asked for the “contractual arrangement” with the District, and we
do not see why the hearing officer did not simply disclose to the parties whatever
document memorialized that arrangement. But as we explain, post, we agree with the
trial court that the disclosure made was adequate, and in any event, the purported contract
Thornbrough points to on appeal does not provide any incentive to favor the District.
For the first time in the reply brief, Thornbrough complains that not all of the
attorneys representing the District filed declarations denying conflicts with the hearing
officer. This claim comes too late. (See Utz, supra, 109 Cal.App.2d at p. 808.)
18
bias on the part of the judge or decisionmaker is too high to be constitutionally
tolerable.’ [Citation.]
“Unless they have a financial interest in the outcome [citation], adjudicators
are presumed to be impartial [citation].” (Morongo Band of Mission Indians v.
State Water Resources Control Bd. (2009) 45 Cal. 4th 731, 737.)
1. Timeliness
We agree with the trial court that Thornbrough’s disclosure motion was untimely.
(See Horsford v. Board of Trustees of California State University (2005) 132 Cal. App. 4th
359, 384-385 [“once plaintiffs were provided with information sufficient to permit
inquiry, they had a duty to exercise reasonable diligence to determine the facts and act
upon them”]; Cal. Admin. Hearing Practice, supra, § 6.28, p. 284 [“Failure to raise the
issue in a timely manner precludes judicial review of bias”].) Thornbrough failed to
adequately explain to the trial court why he did not raise the issue earlier.16
2. Neutrality of Hearing Officer
On the merits of Thornbrough’s claim, we agree with the trial court that there is
nothing in the record to rebut the presumption that the hearing officer was “a ‘reasonably
impartial, noninvolved reviewer’” as required by due process. (Linney v. Turpen (1996)
42 Cal. App. 4th 763, 775-777.)
Haas v. County of San Bernardino (2002) 27 Cal. 4th 1017 (Haas), emphasized by
Thornbrough, does not support his claims. In Haas, the relationship between the county
and the hearing officer was “‘open-ended’” and the county anticipated employing her in
________________________________________________________________
16 As the trial court noted, a prior hearing officer “bowed out after objection” by
Thornbrough’s counsel, after the parties had exchanged pre-hearing letters with that prior
officer regarding an evidentiary matter. This demonstrates Thornbrough’s counsel knew
how to properly disqualify a hearing officer. It also lends support to the view that
Thornbrough’s counsel used disqualification as a litigation tactic. Indeed, in his opening
brief, Thornbrough’s counsel asserts the motion was made “After it became apparent that
the hearing officer was working hand in hand with the counsel for the District[.]” No
citation supports this unsupported claim against the hearing officer, but it does illuminate
the basis for counsel’s actions. (See fn. 18, post.)
19
the future. (Haas, supra, 27 Cal.4th at p. 1022.) This incentivized her to rule in favor of
the county, to secure future appointments. (Haas, supra, at pp. 1027-1031.) Haas
summarized its holding as follows: “The question presented is whether a temporary
administrative hearing officer has a pecuniary interest requiring disqualification when the
government unilaterally selects and pays the officer on an ad hoc basis and the officer’s
income from future adjudicative work depends entirely on the government's goodwill.
We conclude the answer is yes.” (Id. at p. 1024; see Yaqub v. Salinas Valley Memorial
Healthcare System (2004) 122 Cal. App. 4th 474, 483-486 [hearing officer in physician
hospital privileges case recently had been on a the board of hospital foundation, and had
presided over three other hearings, facts “sufficient to create a ‘possible temptation’ to
favor the hospital”].)
But, as the trial court in this case correctly found, Thornbrough did not ask the
hearing officer about future employment prospects with the District. The information
Thornbrough asked for was (1) “Past or present representation of school districts[,]” (2)
“[p]ast or present associations with owners or employees” of the District’s lawyers, and
(3) “[t]he contractual arrangement by which the hearing officer” was retained by the
District. The hearing officer responded to the last question on the record by stating he
had been hired “as an independent hearing officer” by the District. The order responding
to Thornbrough’s motion found the hearing officer knew “of no potential or actual
conflicts of interest that require disclosure in this matter.” Although the hearing officer
might have answered the question more explicitly (see fn. 15, ante), in context, the
answers given were sufficient to dispel the reasonable--as opposed to speculative--
concerns Thornbrough articulated. (See Imagistics Internat., Inc. v. Department of
General Services (2007) 150 Cal. App. 4th 581, 591-592 [“a perception of bias in an
adjudicator is reasonably present . . . only if the prospects of future employment with the
opponent can be seen as resting on decisions favorable to the opponent”]; Southern Cal.
Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal. App. 4th 533, 549
20
[bias not implied].) As the trial court found, both Thornbrough and the District cited
Haas in their written papers on this issue, in response to which, the hearing officer stated
he knew of no “potential or actual conflicts of interest[,]” which in context functions as a
denial of future employment prospects with the District, the problem described in Haas.17
Thornbrough contends the hearing officer’s failure to give more detailed responses
compels reversal. Thornbrough cites Nightlife Partners, Ltd. v. City of Beverly Hills
(2003) 108 Cal. App. 4th 81 (Nightlife Partners), in support of the proposition that the
failure by a hearing officer to respond to an allegation of a conflict of interest creates an
inference that a conflict exists. We read the holding of Nightlife Partners as narrower.
There, at a hearing to consider a use permit, the hearing officer stated that he was
inexperienced and would “be advised and assisted during the hearing by” a particular city
attorney. That same city attorney was simultaneously representing the city in federal
litigation against the use permit applicant, creating a clear conflict of interest. In
opposition to the applicant’s mandamus petition, the hearing officer declared he had
reached his decision without consulting any other city employee and that he was not
biased by his own status as a city employee, but he did not dispute that he had been
advised by that particular city attorney during the administrative hearing. (Nightline
Partners, supra, 108 Cal.App.4th at pp. 84-86, 87-88.) Nightlife Partners first held that
the hearing officer’s statement on the record that he would be advised and assisted by the
city attorney was itself sufficient to support the trial court’s finding that this had
occurred. (Nightline Partners, supra, at p. 88.) It then found the hearing officer’s failure
to address this point in his declaration “created an inference that, in fact, [the city
________________________________________________________________
17 Haas is also distinguishable for the same two reasons pointed out by Broden v. Marin
Humane Society (1999) 70 Cal. App. 4th 1212, 1220, fn. 7, namely, (1) Haas raised the
issue at the beginning of the administrative hearing, and (2) Haas presented an adequate
record demonstrating the tainted relationship between the hearing officer and the county.
21
attorney] actually did advise and assist [the hearing officer] during the hearing. (Ibid.)
We do not discern in Nightlife Partners a broad rule that if a hearing officer does not
respond explicitly to every claim, an inference of bias arises.
Thornbrough also refers to a document purporting to be the contract between the
District and the hearing officer, tendered by the District to the trial court in opposition to
Thornbrough’s mandamus petition. The trial court excluded this document because it
was not in the administrative record, lacked “proper foundation and constitutes
inadmissible hearsay.” Thornbrough fails to head or argue any attack on these grounds,
and therefore has forfeited the point. (See Loranger v. Jones (2010) 184 Cal. App. 4th
847, 858, fn. 9 (Loranger).)
More importantly, far from advancing Thornbrough’s claims, this document,
assuming it is the relevant contract, undermines his claims. Thornbrough correctly notes
that the document shows the hearing officer was to be paid an hourly rate. But nothing in
Haas criticized the use of an hourly rate as such, and the court emphasized that:
“Certainly due process does not forbid the government to pay an adjudicator when it must
provide someone with a hearing before taking away a protected liberty or property
interest. Indeed, the government must ordinarily pay the adjudicator in such cases to
avoid burdening the affected person’s right to a hearing.” (Haas, supra, 27 Cal.4th at p.
1031.) Nothing in the purported contract on its face suggests that the District was
holding out the promise of future employment, which is the problem identified by Haas.
Therefore, even if we accepted the excluded document as the relevant contract, it does
not bolster Thornbrough’s claim of bias.
Accordingly, we reject Thornbrough’s contention that the hearing was unfair
because the hearing officer was financially biased in favor of the District.18
________________________________________________________________
18 In a footnote bereft of authority or analysis, Thornbrough accuses the hearing officer
of actual bias because of rulings he made adverse to Thornbrough’s position. This claim
22
IV
Legally-Barred Charges Used to Increase Discipline
Thornbrough contends legally-barred incidents were improperly used to increase
his discipline. We find no prejudicial error.
A. Background
Thornbrough was charged with dishonesty for lying on his 1997 District
employment application by claiming he lived in Roseville, and by omitting the fact that
there was a disciplinary matter pending against his state contractor’s license. The hearing
officer found Thornbrough had not misled the District about his license, because his
“superior(s) knew of the matter” and his job did not require a contractor’s license. The
hearing officer found “no doubt” that Thornbrough misrepresented his home address on
his application, and Thornbrough admitted he had done so. The hearing officer found he
did so as part of a “scheme” with a former District employee, “to increase his opportunity
to be hired. This act of dishonesty, however, was known to several of Mr. Thornbrough’s
supervisors over the years and never was any adverse action . . . taken. The passage of
time renders this incident too remote to form the basis for independent discipline.”
Nonetheless, the hearing officer found this act of dishonesty was relevant in assessing
Thornbrough’s credibility, particularly since Thornbrough showed no remorse and his
is forfeited. (See In re S.C. (2006) 138 Cal. App. 4th 396, 408.) Further, ruling against a
party, even erroneously, does not show bias. (See McEwen v. Occidental Life Ins. Co.
(1916) 172 Cal. 6, 10-11; Shakin v. Board of Medical Examiners (1967) 254 Cal. App. 2d
102, 116-117.) Actual bias is never presumed. (Gai v. City of Selma (1998) 68
Cal. App. 4th 213, 220.) Absent a record supporting a claim of actual bias, castigating the
factfinder is both unpersuasive and improper. (See Lazzarotto v. Atchison, T. & S.F.R.
Co. (1958) 157 Cal. App. 2d 455, 462 [“counsel . . . should not have assumed that we
would be influenced by their epithets”].) In light of Thornbrough’s baseless charge, we
feel compelled to point out that the record shows Thornbrough’s counsel repeatedly
interrupted and attempted to lecture the hearing officer about the law, the facts, and the
appropriate procedures to follow, yet the hearing officer retained control of the
proceedings in an appropriate manner and displayed no discernible bias.
23
demeanor at the hearing “suggested he considered the matter trivial, if not amusing.” 19
The hearing officer also found this act of dishonesty was relevant to the appropriate level
of discipline.
The final charging document did not allege the “Paco” and “Pepe” remarks as
misconduct, but alleged Thornbrough retaliated against David and others for participating
in the earlier sexual harassment complaint against Thornbrough, and alleged he engaged
in harassment based on gender and ethnicity. But under the rubric of “discourtesy,” one
of the hearing officer’s findings was that “Thornbrough engaged in discourtesy of an
extreme nature when he used clearly derisive ethnic slurs such as ‘Paco’ and ‘Pepe’ to
refer to [David], who is of Hispanic origin.” The trial court impliedly agreed with
Thornbrough that this finding was erroneous in the way it was framed because there was
no evidence Thornbrough continued to use those slurs after the prior disciplinary matter
was settled, but the trial court found, in its independent judgment of the evidence, that
these remarks were relevant to show Thornbrough’s bias towards and later retaliation
against the Zinzuns. 20
________________________________________________________________
19 Similarly, although the hearing officer rejected one claim of violation of District
standards based on Thornbrough’s creation of a sham e-mail account to which he sent
work e-mails falsely purporting to report District misconduct to a government employee,
the hearing officer found this incident showed “Thornbrough’s tendency to engage in a
disingenuous, if not outright dishonest, manner with regard to District activities” and
further weakened Thornbrough’s credibility.
20 A later portion of the trial court’s findings states the evidence “demonstrates petitioner
was discourteous and disrespectful to another employee by his use of the names ‘Paco’
and ‘Pepe,’ when referring to Mr. Zinzun, an Hispanic.” If the trial court meant this
provided a separate ground for discipline, we agree with Thornbrough that the trial court
erred. But in light of the trial court’s explicit finding that this evidence was relevant to
show bias and retaliation, we do not construe this passage as necessarily stating an
independent ground of discipline. In any event, any error was harmless given the other
evidence in the record, as discussed post, which leads ineluctably to the conclusion that
termination was proper.
24
B. Analysis
Thornbrough’s disciplinary case was subject to a two-year statute of limitations,
absent concealment of the facts supporting a given charge. (Ed. Code, § 45113, subd.
(d).) Therefore, because some superiors had been aware of his misstatement of address
and nondisclosure of license discipline, the hearing officer properly rejected those
charges as independent grounds for discipline.21 And because the prior disciplinary
settlement embraced any punishment for making the ethnic slurs against David, these
slurs could not support an independent ground for discipline.
However, in complaining about the use of these “legally barred” charges,
Thornbrough conflates a legal ground for discipline with the facts constituting evidence
supporting such ground, as well as the permissible use of that evidence in fashioning the
resulting penalty.
A public employee must be notified of the specific rules allegedly violated, that is,
the legal grounds or causes for discipline, and also must be told the facts alleged as to
each ground. (See 52 Cal.Jur.3d (2010) Public Officers and Employees, §§ 171–172, pp.
249–251; 1 Silver, Public Employee Discharge and Discipline (3d ed. 2001) State
Administrative Review, § 707[B], p. 398 [notice must state “the nature of the misconduct
alleged (statutory language should not simply be reiterated)fn. and the agency rules or
regulations allegedly violated”]; see also Department of Parks & Recreation v. State
Personnel Bd. (1991) 233 Cal. App. 3d 813, 831 [agency “has no discretion to impose any
disciplinary punishment . . . unless it finds . . . that grounds for adverse action have been
established”], id. at p. 837 [statement “adequate if it ‘is sufficiently specific in regard to
________________________________________________________________
21 Contrary to Thornbrough’s view, the District did not act improperly in bringing claims
regarding his 1997 application. Until evidence on those claims was heard, the District
was unaware that any employees knew of the application’s problems. In light of the
evidence of Thornbrough’s lack of concealment, the District properly conceded in the
trial court that those charges were barred.
25
circumstances and date to allow the accused to identify the transaction and understand the
nature of the alleged offense to enable him to present his defense thereto’”].) In
Thornbrough’s case, pursuant to a District regulation, he was entitled to be told the
proposed action (dismissal), the legal “cause or causes for the personnel action,” and “the
specific acts or omissions upon which the causes are based.”
But so long as one valid legal cause for discipline is established, all relevant facts
should be considered in assessing punishment. (See generally, Skelly v. State Personnel
Bd. (1975) 15 Cal. 3d 194, 217-219.) And the facts pertaining to barred grounds could be
considered when assessing credibility or bias, as the hearing officer found. Generally,
even in formal administrative hearing practice under the Administrative Procedure Act,
“Any relevant evidence shall be admitted if it is the sort of evidence on which responsible
persons are accustomed to rely in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper the admission
of the evidence over objection in civil actions.” (Gov. Code, § 11513, subd. (c).)
Similarly, by District regulation, “Neither the Board nor a hearing officer shall be bound
by rules of evidence used in California courts. Informality in any such hearing shall not
invalidate any order or decision made[.]” Thornbrough’s general credibility, demeanor at
the hearing itself, and past discipline were all relevant factors to consider in determining
whether his misconduct warranted his termination. (See Cipriotti v. Board of Directors
(1983) 147 Cal. App. 3d 144, 153 [current charges “part of a larger picture and were like
the proverbial straw that broke the camel’s back. Evidence of the other events relative to
petitioner’s past conduct was competent and relevant and necessary to determine the
significance of petitioner’s latest acts”]; see also Perea v. Fales (1974) 39 Cal. App. 3d
939, 943 [“evidence upon which ‘responsible persons are accustomed to rely,’ although
not admissible in civil actions, is admissible at the agency hearing”].)
The trial court was aware of the points raised by Thornbrough. It found the
hearing officer did not err in considering the job application as it pertained to credibility,
26
but in any event exercised its independent judgment on the evidence and declined to
consider the application in making his own assessment of Thornbrough’s credibility,
which the trial court found was lacking, based on other evidence in the record. Therefore
if there had been any error by the hearing officer in considering the job application, the
error was cured because the trial court did not consider it.
Contrary to Thornbrough’s characterization of the trial court’s findings, the
portion of the statement of decision addressing punishment does not mention the ethnic
slurs or application dishonesty, but states generally that “the overwhelming evidence
virtually compels” termination, and specifically references the testimony of Dr. Fogli,
regarding the incorrigible nature of Thornbrough’s conduct and the fact that his
continuation in office would be detrimental to the mission of the District, opinions that
the trial court found “merely reflect the obvious.” Thus, the penalty determination was
based on the totality of misconduct, which was severe (e.g., confronting Rhia after an
explicit stay-away order, storing massive amounts of pornography on his District
computer, blatant and repeated insubordination toward Allen), and did not turn on ethnic
slurs and the misstatements on Thornbrough’s 1997 job application.
Once a valid ground of misconduct is shown, an agency has great latitude to
determine the appropriate penalty. (See Deegan v. City of Mountain View (1999) 72
Cal. App. 4th 37, 45-47; Lowe v. Civil Service Com. (1985) 164 Cal. App. 3d 667, 677.)
Yet, nowhere in his briefing does Thornbrough head and argue a claim that the penalty
imposed on this record reflects an abuse of discretion. Accordingly, he has forfeited the
claim that any errors regarding the penalty determination were prejudicial. (Loranger,
supra, 184 Cal.App.4th at p. 858, fn. 9.) In any event, assuming the minor errors by the
hearing officer and trial court in the treatment of the evidence complained of by
Thornbrough, any such errors were harmless.
27
IV
Retaliation for Protected Activities
In three somewhat overlapping claims, Thornbrough contends he was punished for
protected speech, in violation of the First Amendment, Labor Code section 1102.5, and
Education Code section 44110, et seq. This has been his primary and consistent defense
theory.
Thornbrough first contends the trial court erred by finding that his “letters to the
District Board were not protected activity[,]”and that when the trial court alternatively
“assumed arguendo that the communications were protected, it applied the wrong
standard to determine if Mr. Thornbrough could be fired anyway.” In making the latter
claim, Thornbrough contends the trial court misapplied governing law, and argues “If the
initial disciplinary action alleged misconduct based on protected activity, the District
[necessarily] violated Labor Code § 1102.5.” In a third related argument, Thornbrough
claims the District necessarily violated Education Code section 44112, et seq., if it
charged him based on any protected activity.
As we shall explain, we need not determine whether or not Thornbrough engaged
in protected speech, because both the hearing officer and the trial court found that other
facts amply justified termination, and such finding is sufficient, as a matter of law, to
obviate Thornbrough’s retaliation defense.
A. The Law
Generally speaking, both Labor Code section 1102.5 and Education Code section
44112, et seq. protect defined employees who make good faith reports of defined
improper governmental activities, such as violations of law, from retaliation by their
employers. (See, e.g., Ed. Code, §§ 44112, subds. (c) & (e), 44113, subd. (a); Lab. Code,
§ 1102.5, subd. (b); Conn v. Western Placer Unified School Dist. (2010) 186 Cal. App. 4th
1163, 1175, 1180-1181 [Ed. Code, § 44113]; Patten v. Grant Joint Union High School
Dist. (2005) 134 Cal. App. 4th 1378, 1384 [Lab. Code, § 1102.5].)
28
“Normally, an improper motivation of the agency in bringing the charges against
the respondent is not relevant in the administrative proceeding or on mandamus, as long
as there were sufficient facts introduced at the hearing to support the decision. Those
motivations, however, may be relevant to the extent that they have a direct bearing on the
credibility of the witnesses or evidence.” (1 Cal. Administrative Mandamus
(Cont.Ed.Bar 3d ed. 2012) Court’s Scope of Review Under CCP § 1094.5, §6.57, pp.
202-203; see Pomona Valley Hospital Medical Center v. Superior Court (1997) 55
Cal. App. 4th 93, 106-107.) However, it is well-settled that if the agency’s motivation is
to silence a public employee’s lawful protected speech, that would invalidate a
disciplinary action. For example, in Bekiaris v. Board of Education (1972) 6 Cal. 3d 575
(Bekiaris), a probationary teacher was precluded from introducing evidence “that the true
reason for the recommendation that he not be rehired was dissatisfaction with his political
activities-including his appearance before the Modesto City Council on behalf of the
Peace and Freedom Party and his letters to the editor of the Modesto Bee expressing
political views.” Our Supreme Court reversed with directions to the trial court to
consider evidence regarding the teacher’s defense, and “make an independent assessment
of established factual elements and determine whether the true reason for dismissal was
official dissatisfaction with the [public employee’s] exercise of constitutional rights, so
that, absent the exercise of these rights, the board would not have dismissed the teacher.”
(Bekiaris, supra, 6 Cal.3d at pp. 593-594.)
Where a public employee is “allegedly discharged both because of dissatisfaction
with his performance and because of his exercise of constitutional rights[,]” “the courts
apply a ‘but for’ test, and reinstatement is not mandated if the employer can demonstrate
29
that it would have reached the same decision even had the employee not engaged in
protected conduct.” (Williams v. City of Los Angeles (1988) 47 Cal. 3d 195, 205.)22
B. Analysis
As Thornbrough contends, his letters of April 23 and May 22, 2008 to the Board
and Grand Jury claiming misconduct contributed to the decision to file charges against
him. This is shown by Leaman’s testimony and the original charging document filed
against Thornbrough on June 16, 2008, which explicitly references those letters among
others and alleges they included “false charges containing half-truths, false innuendos
and factual distortions against fellow employees.” It also alleges misconduct unrelated to
any letters Thornbrough sent, such as his inability to “maintain effective working
relationships” by a supervisor, insubordination, undermining Allen’s authority, and
retaliation against those involved in the prior sexual harassment complaint. Such factors,
too, motivated Leaman’s decision to seek Thornbrough’s termination.
The allegations referencing the letters to the Board and Grand Jury were dropped
in the amended charges filed on September 8, 2008, and not realleged in the amended
statements of charges filed December 8, 2008 and January 15, 2009. The later charging
documents did refer to Thornbrough’s letters to Allen and Leaman of December 15, 2007
and January 7, 2008, respectively--in which he accused Allen of incompetence, among
other things--along with allegations unrelated to any possible claimed protected activity
________________________________________________________________
22 In his briefing, Thornbrough faults the trial court for ignoring the analysis in Mokler v.
County of Orange (2007) 157 Cal. App. 4th 121 (Mokler). The portion of Mokler he
emphasizes holds that where a plaintiff has direct evidence of retaliation “‘believed by
the trier of fact, the defendant can avoid liability only by proving the plaintiff would have
been subjected to the same employment decision without reference to the unlawful
factor.’” (Mokler, supra, 157 Cal.App.4th at p. 138, quoting Morgan v. Regents of
University of California (2000) 88 Cal. App. 4th 52, 67-68.) But that holding is consistent
with the trial court’s analysis here, as we shall explain.
30
(e.g., storing improper material on his District computer, using the computer to
communicate with Stewart, and confronting Rhia after being ordered to stay away).
The hearing officer found the letters to Allen and Leaman insubordinate, but
described abundant evidence of insubordination apart from those letters. The hearing
officer briefly referenced the letters to the Board and Grand Jury to show that
Thornbrough persisted in his accusations of misconduct against the Zinzuns. The hearing
officer found Thornbrough showed “his persistent and rather brazen complaints to the
Board and the Grand Jury” “were significant factors in the eventual decision” to seek his
termination. However, the hearing officer explicitly rejected Thornbrough’s claim of
retaliation, finding “The clear and convincing evidence in this case established a
sustained pattern of egregious misconduct by Mr. Thornbrough, entirely justifying his
termination, independent of any legally impermissible concurrent motive by the District.”
The trial court, exercising its independent review of the evidence, after stating at
one point the clear and convincing standard (see Ed. Code, § 44114, subd. (e)) found the
District’s actions were based on “evidence separate and apart” (see Ed. Code, § 44112,
subd. (d)) from any protected disclosures Thornbrough made, the District had no
retaliatory motive, and his dismissal “would have been recommended notwithstanding
the [allegedly protected] letters.”23
________________________________________________________________
23 After the briefing in this case was complete, our Supreme Court held the clear and
convincing standard was not required in order to sustain a “same-decision” defense under
the Fair Employment and Housing Act (FEHA). (Harris v. City of Santa Monica (2013)
56 Cal. 4th 203, 237-239 (Harris).) Based on Harris, the normal civil standard of
preponderance of the evidence would apply in all “same-decision” cases except where
statutes (e.g., Ed. Code, § 44114, subd. (e); Lab. Code, § 1102.6) require the higher
standard of proof. Again, in this case both the hearing officer and the trial court held the
District to the higher standard of proof.
Harris also held that in some cases a FEHA plaintiff might obtain declaratory or
injunctive relief, and attorney fees, notwithstanding a successful “same-decision”
defense, in order to prevent and deter discriminatory workplace conduct. (Harris, supra,
31
As noted by our Supreme Court, in a case involving a probationary teacher: “Just
as we decline to permit school authorities to mask an unconstitutional dismissal behind a
statement of valid causes, so we cannot allow a teacher genuinely dismissed for valid
causes to be reinstated because school authorities were also displeased with his exercise
of constitutional rights. If it were otherwise a teacher about to be dismissed for valid
causes could insulate himself from dismissal simply by engaging in political activities
offensive to his superiors.” (Bekiaris, supra, 6 Cal.3d at p. 593, fn. 12; see Mt. Healthy
City School Dist. Board of Ed. v. Doyle (1977) 429 U.S. 274, 285-286 [50 L. Ed. 2d 471,
482-483] [the employee should not be put “in a better position as a result of the exercise
of constitutionally protected conduct than he would have occupied had he done
nothing”].)
The evidence abundantly supports the trial court’s finding that the District would
have terminated Thornbrough regardless of any allegedly protected activity. The incident
with Rhia reflects dangerously severe misconduct by a manager. After making
unwelcome sexual comments to Rhia, stipulating to accept punishment, and being
ordered to stay away from her, he went to her office and humiliated her the day after the
order. This conduct, by a managerial employee, is itself sufficient to justify termination.
Added to that, the open insubordination against Allen and the inappropriate computer
usage, both unrelated to any claimed protected speech, reinforce the view that termination
was inevitable, even if any of the other charges were based on protected activities.
Thornbrough makes what amounts to a “fruit of the poisonous tree” argument (see
Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L. Ed. 2d 441, 455]), by
claiming that the facts underlying some or all of the amended charges would never have
come to light but for the purportedly improper original charges. He claims this is “after-
56 Cal.4th at pp. 232-235.) But we are not reviewing a civil suit filed by Thornbrough,
and therefore this portion of the Harris holding is not relevant to this appeal.
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acquired” evidence that cannot be used to retroactively legitimize the original improper
charges. We disagree.
In particular, Thornbrough argues that his District computer would not have been
searched but for the filing of the original charges. But, as we explained earlier (Part I,
ante), new charges may be filed during the administrative proceedings as long as a
reasonable opportunity to defend against them is provided. Leaman testified he became
aware of the contents of the computer while preparing for the administrative hearing.
Thornbrough, a manager who was required to know and obey District policies, admitted
some of the material on his computer was improper, and there was forensic evidence
showing he intentionally stored it on that computer. That evidence bore no connection to
any alleged retaliatory animus on the part of the District.
The final amendment also added charges based on what was evidently surprise
testimony by Nichols that Thornbrough recorded a conversation with Allen and her
assistant, and surprise testimony by Thornbrough, claiming that certain e-mails
purportedly between him and a member of the Governor’s staff were in fact sent by and
to Thornbrough by using two different e-mail accounts he had set up. The perjury
allegation was not sustained by the hearing officer, but the unlawful tape recording
allegation bore no relationship to any retaliatory animus, and it, too, reflects severe
misconduct (if not criminality) by a managerial employee.
The “after-acquired” evidence doctrine may prevent an employer in a civil action
from legitimizing prior punitive actions based on evidence found after those actions were
taken. The seminal California case on the doctrine, arising on summary judgment,
involved an employee who made “material omissions” on his employment application,
which were not discovered until after he was fired. The court held that the fact the
omissions might or would have led to termination did not insulate the employer from
liability for wrongful termination. (Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal. App. 4th
614, 617-619; see 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and
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Employment, § 211, pp. 267-268; 8 Witkin, id., Constitutional Law, § 860, pp. 307-308
[but after-acquired evidence may prevent reinstatement of the errant employee].) The
doctrine does not address amendments to pending administrative discipline cases, based
on evidence discovered during the proceedings, that is before the final decision to
terminate is made.
Moreover, in Harris, our Supreme Court emphasized that “when we refer to a
same-decision showing, we mean proof that the employer, in the absence of any
discrimination, would have made the same decision at the time it made its actual
decision.” (Harris, supra, 56 Cal.4th at p. 224.) In this case, Thornbrough was not
terminated until the District’s Board voted to adopt the hearing officer’s
recommendations, at which time all of the patently unprotected evidence we have
described was before the Board. That is the point at which we must determine if the
“same decision” would have been made by the Board.
Thornbrough also claims that because the District never admitted a retaliatory
motive, it cannot establish a same-decision defense. Our Supreme Court has rejected this
line of argument in Harris, a FEHA case where the plaintiff claimed the defendant could
not raise a same-decision defense because it had denied discriminatory animus: “Harris
further argues that for equitable reasons, an employer that wishes to make a same-
decision showing must concede that it had mixed motives for taking the adverse
employment action instead of denying a discriminatory motive altogether. But there is no
inconsistency when an employer argues that its motive for discharging an employee was
legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of
lawful and unlawful motives, then its lawful motive alone would have led to the
discharge.” (Harris, supra, 56 Cal.4th at p. 240.)
Because the same decision--termination--would have been reached regardless of
any consideration of allegedly protected speech, we have no need to review
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Thornbrough’s specific claims regarding such conduct: Thornbrough’s exercise, if any,
of his protected constitutional right(s) was irrelevant to the outcome of the instant case.
V
Reweighing the Evidence
Thornbrough argues due process violations “are not cured by re-evaluating the
evidence[,]” the trial court misapplied governing standards, and the trial court did “not
have the option of reweighing the evidence and deciding that the evidence supports
termination even if there was a violation of due process of law.”
His briefing largely reiterates claims already discussed and rejected.
To the extent Thornbrough contends a due process error in an administrative
proceeding can never be deemed harmless, he is wrong. The trial court, reviewing an
administrative finding, was bound to obey the following statute:
“The inquiry . . . shall extend to the questions whether the respondent has
proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion. Abuse of discretion is
established if the respondent has not proceeded in the manner required by law, the
order or decision is not supported by the findings, or the findings are not supported
by the evidence.” (Code Civ. Proc., 1094.5, subd. (b).)
This does not mean that any legal mistake at the administrative hearing level
compels the finding to be set aside. Instead, as a general rule, “procedural due process
violations, even if proved, are subject to a harmless error analysis.” (Hinrichs v. County
of Orange (2004) 125 Cal. App. 4th 921, 928.) “A writ of administrative mandamus will
not be issued unless the court is persuaded that an abuse of discretion was prejudicial.
[Citation.] In other words, the reviewing court will deny the writ, despite abuse of
discretion, if the agency’s error did not prejudicially affect the petitioner’s substantial
rights.” (1 Cal. Administrative Mandamus, supra, § 6.95, p. 233; see Leal v Gourley
(2002) 100 Cal. App. 4th 963, 968-969 [notice that failed to advise of right to an
35
interpreter caused no prejudice, because appellant already had been advised of his right to
an interpreter].)
In an administrative case involving teacher credentialing, we pointed out that an
“‘Error of law is not reversible unless, on an examination of the record, it appears to have
resulted in a miscarriage of justice.’” (Broney v. California Com. on Teacher
Credentialing (2010) 184 Cal. App. 4th 462, 472, quoting 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 322, p. 369.) And it is well-settled that the improper admission or
rejection of evidence at an administrative hearing does not provide “grounds for reversal
unless the error has resulted in a miscarriage of justice. [Citation.] In other words, it
must be reasonably probable a more favorable result would have been reached absent the
error.” (Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services
(2009) 176 Cal. App. 4th 1249, 1254-1255.) Thus, Thornbrough’s view that any errors in
administrative cases compel reversal is incorrect.
Generally, “the appellant bears the duty of spelling out in his brief exactly how the
error caused a miscarriage of justice.” (Paterno v. State of California (1999) 74
Cal. App. 4th 68, 106.) But, as we noted ante, Thornbrough has failed to fairly set forth
the extensive evidence of his misconduct that was wholly unrelated to the letters he sent,
including downloading and maintaining pornography on a District computer, persistent
and blatant insubordination (e.g., referring to Allen, as a “fucking bitch” and seeking to
undermine her authority), and violating a direct order to stay away from Rhia after he
agreed to be disciplined for his conduct toward her. These acts alone justify termination
of a managerial school district employee.
In short, the overwhelming evidence shows that termination was the appropriate
penalty based on the facts wholly unrelated to any claims of improper consideration.
Accordingly, we find no miscarriage of justice in the judgment denying Thornbrough’s
mandamus petition.
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DISPOSITION
The judgment denying the petition for writ of mandate is affirmed. Thornbrough
shall pay the District’s costs of this appeal. (Cal. Rules of Court, rule 8.278.)
DUARTE , J.
We concur:
BUTZ , Acting P. J.
MURRAY , J.
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