LaMarr v. The Regents of the U. of Cal. ( 2024 )

Filed 4/5/24; Certified for Publication 4/23/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JUNE LAMARR, C097235
Plaintiff and Appellant, (Super. Ct. No. 34-2015-
00181352-CU-OE-GDS)
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Defendant and Respondent.
After performance problems and friction with her supervisor, plaintiff June
LaMarr temporarily transferred to a new department at the University of California Davis
Medical Center, a unit of defendant the Regents of the University of California (Regents).
LaMarr was later given the option to move back into her prior position, but was told she
would face discipline, including possible termination, if she did. LaMarr ultimately
accepted a permanent position in the new department for less pay and sued the Regents
alleging it violated her due process rights by not providing her a hearing under Skelly v.
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State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly) prior to her demotion. After a court
trial, the trial court found against LaMarr. LaMarr now appeals contending the trial
court’s finding lacked substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence introduced at trial established LaMarr was a medical office services
coordinator (coordinator) level V at the University of California Davis Medical Center’s
cancer center in 2014. LaMarr’s supervisor, Walter Knowles, suspended her for three
days in July 2014 for performance issues. Performance issues persisted after the
suspension, however, and Knowles subsequently prepared, but did not issue, a “Letter of
Intent to Dismiss” LaMarr in August 2014. Knowles’s supervisor, Chris Jackson,
testified at trial he thought this was an unusually expedited discipline procedure and it
concerned him. LaMarr had also told Jackson she was having difficulties with Knowles.
Jackson consequently sought a transfer for LaMarr to a different department to
defuse the situation. Jackson testified, “There were no [coordinator level] V positions
available,” but he found a coordinator level III position at another department, the MIND
Institute (Institute), that Jackson offered to LaMarr on a “temporary” basis at her normal
level V salary. Jackson did not inform LaMarr of the letter of intent to dismiss drafted by
Knowles. In September 2014, LaMarr e-mailed Jackson she “would like to move
forward on temporarily moving from the [c]ancer [c]enter.”
In an e-mail chain spanning between February and March 2015, Jackson e-mailed
LaMarr confirming that her supervisor at the Institute was pleased with LaMarr’s
performance and was comfortable making the role permanent. On March 10, 2015,
Jackson e-mailed LaMarr explaining they “were seeking to be able to keep [LaMarr’s]
current [level V] salary if possible” but unfortunately, if she stayed at the Institute she
would be a coordinator level III with a lower salary. Jackson then stated: “The two basic
options we have now are: [¶] 1) Remain at the [Institute] as a [coordinator level ]III with
a max salary of $25.49 (top of the range)[; or] [¶] 2) [m]ove back to the [c]ancer [c]enter
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as a [coordinator level ]III with a max salary of $25.49[.] [¶] The only other option
would be to go back to the [c]ancer [c]enter as a [coordinator level ]V [supervisor], but
you will be subject to the pending action that was put on hold during this trial period.”
LaMarr told Jackson and an employee and labor relations supervisor she was surprised to
learn there was a pending action. The employee and labor relations supervisor
responded, “[W]e have no documentation. The [i]ntent was never issued.” On March 16,
2015, LaMarr e-mailed Jackson she “would love to remain” at the cancer center,
“[h]owever, [she] c[ould ]not return to a[] hostile environment where every decision [she]
make[s] may be questioned or grounds for dismissal. Therefore, after full consideration
for [her] health and stress, [she] w[ould] remain at the [Institute].”
LaMarr testified the negative performance reviews in 2014 surprised her and she
did not want to transfer to the Institute. When she received the March 10, 2015 e-mail,
she was surprised she could return to the cancer center only as a coordinator level III and
felt under duress and forced to stay at the Institute. She testified, “I had two choices, [be]
demoted or fired.” But she admitted she knew she would have had a right to a Skelly
hearing if she was terminated. Jackson also testified LaMarr would have been given a
Skelly hearing if Knowles had moved forward with issuing a notice of intent to dismiss
LaMarr.
On August 30, 2022, the trial court issued its judgment, finding against LaMarr.
The court framed the controverted issue as: “Whether Ms. LaMarr was deprived of due
process on March 10, 2015, when, without offering her a pre-deprivation Skelly hearing,
defendant proposed to either transfer her to a non-supervisory position with reduced pay
(at the . . . Institute or the [c]ancer [c]enter) or return her to her higher paying supervisory
position at the [c]ancer [c]enter and face possible termination proceedings.” (Fn.
omitted.) The court answered this in the negative for two reasons. First, the Regents
never issued a notice of intent to dismiss. Second, though LaMarr honestly believed she
was under duress, “no legal authority supports her position that a subjective feeling of
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duress triggers due process protections.” Thus, LaMarr “failed to prove by a
preponderance of the evidence that [the Regents] deprived her of her due process.”
LaMarr appeals.
DISCUSSION
LaMarr argues the trial court’s finding that the Regents did not violate her due
process lacks substantial evidence. LaMarr contends she “was not informed of any
adverse consequences of accepting a transfer, nor was she told that she would not be able
to return as a [coordinator level] V to the [c]ancer [c]enter without facing a dismissal.
Her acceptance of Jackson’s proposal for a transfer was not voluntary.” And LaMarr
eventually accepted the demotion because “she understood that she had only three
options—two demotions or a dismissal.” We disagree.
Our Supreme Court found in Skelly, “[T]he California statutory scheme regulating
civil service employment confers . . . ‘permanent employee[s]’ [with] a property interest
in the continuation of [their] employment [that] is protected by due process.” (Skelly,
supra, 15 Cal.3d at p. 206.) Before such an employee may be subject to an adverse
employee action, due process requires, at a minimum, “notice of the proposed action, the
reasons therefor, a copy of the charges and materials upon which the action is based, and
the right to respond, either orally or in writing, to the authority initially imposing
discipline.” (Id. at p. 215.) “What Skelly requires is unambiguous warning that matters
have come to a head, coupled with an explicit notice to the employee that he or she now
has the opportunity to engage the issue and present the reasons opposing such a
disposition. Moreover, the opportunity to respond must come after the notice of intention
to dismiss.” (Coleman v. Regents of University of California (1979) 93 Cal.App.3d 521,
525-526.) California law defines “ ‘adverse action’ ” to include “dismissal, demotion,
suspension, or other disciplinary action.” (Gov. Code, § 19570.)
“Substantial evidence is evidence that is ‘of ponderable legal significance,’
‘reasonable in nature, credible, and of solid value,’ and ‘ “substantial” proof of the
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essentials [that] the law requires in a particular case.’ ” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1006.) “ ‘[C]ircumstantial evidence and any reasonable inferences drawn
from that evidence’ may constitute substantial evidence.” (People v. Grant (2020)
57 Cal.App.5th 323, 331.)
There is substantial evidence the Regents did not violate LaMarr’s due process
rights because she was never notified of an intent to terminate and any demotion was
voluntary. Knowles did believe LaMarr had performance issues and he began
considering a termination. Knowles even drafted a letter of intent to dismiss LaMarr.
But the evidence establishes Knowles never issued this letter. Instead, Jackson
preempted Knowles by allowing LaMarr to possibly avoid facing termination through a
transfer. Knowles’s unissued letter, therefore, did not trigger a right to Skelly
proceedings.
LaMarr’s new permanent position at the Institute was a demotion, which is an
adverse result, but this transfer occurred without a denial of due process. Due process is
not required where “the employee ‘has voluntarily surrendered the property interest upon
whose [sic] existence the procedural rights depend.’ ” (Coleman v. Department of
Personnel Administration (1991) 52 Cal.3d 1102, 1115.) The evidence here supports the
trial court’s finding that LaMarr voluntarily accepted the demotion in 2015. Jackson gave
LaMarr three options, and though two were with lower pay, Jackson tried to find
comparable roles with the same pay but could not. LaMarr later e-mailed, “[A]fter full
consideration for my health and stress, I will remain at the [Institute].” LaMarr therefore
voluntary chose a lower paying position rather than returning to the cancer center.
Though this was clearly a difficult choice for LaMarr, a difficult choice is not the same as
an involuntary choice. (Cf. People v. Urfer (1979) 94 Cal.App.3d 887, 892 [“Assuming
[the] appellant was reluctant or ‘unwilling’ to change his [or her] plea, such state of mind
is not synonymous with an involuntary act”].) Thus, there was substantial evidence
LaMarr’s demotion did not violate due process.
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LaMarr maintains Jackson obtained her acquiescence involuntarily, by providing
her incomplete information and false promises when he first offered LaMarr the transfer
in 2014. But even if LaMarr was originally not aware the transfer at her normal pay was
temporary, she was given the option in 2015 to return to the status quo at the cancer
center with her same title and with her same pay; LaMarr chose not to return. The final
decision at issue here in 2015 was consequently made with full “knowledge of the
consequences.” (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.)
This decision alone also did not trigger her right to a Skelly hearing. LaMarr
finally contends she “was owed the pre-removal procedures (i.e., due process) before
having to choose between suffering a decrease in pay rate and grade (demotion) or a
dismissal.” Otherwise, LaMarr asserts, “By simply not issuing an [sic] [n]otice of
[i]ntent, [the] Regents can avoid any due process requirement.” LaMarr misunderstands
the Skelly requirement. The Regents does not violate due process until it takes an adverse
action without providing the Skelly safeguards. This necessarily means the safeguards
must be provided before the deprivation. (Mendoza v. Regents of University of California
(1978) 78 Cal.App.3d 168, 172 [a civil employee may be deprived of his or her property
interest in employment “only if, prior to his [or her] dismissal, certain procedural
safeguards are observed”].) But a Skelly hearing is not required if there has not been a
deprivation or an issued intent to take an adverse action. (Coleman v. Regents of
University of California, supra, 93 Cal.App.3d at p. 526 [“the opportunity to respond
must come after the notice of intention to dismiss”].) LaMarr provides no legal support
for the proposition underlying her argument that employees are afforded due process as
soon as an employer considers an adverse action; this would dramatically expand Skelly.
Ultimately, it was LaMarr’s prerogative to either risk termination and receive a
Skelly hearing, relief she seeks with this lawsuit, or voluntarily accept the transfer and not
have a Skelly hearing. Under the facts of this case, the law did not entitle her to both. We
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consequently conclude there was substantial evidence supporting the trial court’s finding
that the Regents did not deprive LaMarr of due process.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
/s/
ROBIE, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/
MESIWALA, J.
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Filed 4/23/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JUNE LAMARR, C097235
Plaintiff and Appellant, (Super. Ct. No. 34-2015-
00181352-CU-OE-GDS)
v.
ORDER CERTIFYING
THE REGENTS OF THE UNIVERSITY OF OPINION FOR
CALIFORNIA, PUBLICATION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Steven
M. Gevercer, Judge. Affirmed.
Law Firm of Joanne Delong and Joanne Delong for Plaintiff and Appellant.
Horvitz & Levy, Jason Y. Siu, H. Thomas Watson; Sloan Sakai Yeung & Wong,
Timothy G. Yeung and Ivan Delventhal for Defendant and Respondent.
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THE COURT:
The opinion in the above-entitled matter filed on April 5, 2024, was not certified
for publication in the Official Reports. For good cause, it now appears that the opinion
should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
ROBIE, Acting P. J.
/s/
KRAUSE, J.
/s/
MESIWALA, J.
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