• Substantial Evidence Test Applies In Administrative Appeal From University Of California’s Decision To Terminate Employee
  • July 17, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • A University of California employee sought review of the University’s decision to terminate his employment because he violated the policy against workplace violence or threats.  The employee asserted that an independent judgment standard of review should apply to the University’s decision.  The court of appeal held that the trial court properly applied the substantial evidence review standard and affirmed the trial court’s decision that there was no basis for setting aside the University’s decision.  (Do v. The Regents of the University of California (216 Cal.App.4th 1474, Cal.App. 4 Dist., May 13, 2013).


    The University of California (“University”) hired James Do (“Do”) as a programmer/analyst to work in the radiation oncology department at a cancer center.  The University’s policy (“Policy”) was that “there is zero tolerance for ‘intimidation’ or ‘threats of violence’ toward colleagues.”   The Policy defined “intimidation” as “an intentional act towards another person, the results of which causes the other person to reasonably fear for his/her safety.”  “Threat of violence” is defined by the Policy as “an intentional act that threatens bodily harm to another person.”  If an employee violates these standards, the employee is subject to “discipline up to and including dismissal.”

    Richard Fletcher (“Fletcher”) was Do’s supervisor.  Fletcher and Do worked as a two-person team.  Fletcher encountered several work-related problems with Do that he reported to his supervisor, Todd Pawlicki (“Pawlicki”).  On June 4, 2009, Fletcher asked Do to install a fax machine.  Do replied that he was too busy, walked away from Fletcher to his workstation, and sat down.  Fletcher followed Do and “asked Do what else he had going on.”  According to Do, Fletcher told him to set up the fax machines right now.  Do asked, “Can’t this wait?”  Do then turned his head and told Fletcher, “Get out of my face.”  Other employees heard the exchange.  Fletcher “thought that the situation was pretty intense, felt disturbed, and left the area.” 

    Fletcher, Pawlicki, and another supervisor, Laura Adams (“Adams”) decided to issue Do a written warning for the June 4 incident.  Adams and Fletcher met with Do on July 8, 2009, to discuss another issue.  Fletcher also delivered a letter to Do that stated Do refused to help him with his request to set up fax machines.  The letter stated that when Fletcher asked Do what else he had going on, Do replied, “Get out of my face.”  After Fletcher asked Do why he said that, “Do explained that he had said that so that he (Do) ‘wouldn't ‘deck’ him (Fletcher).”  After the meeting, Fletcher felt stunned, intimidated, and afraid that Do would cause him physical harm.

    Fletcher and Adams reported Do’s comments to Pawlicki and human resources personnel.  A few days later, Do was placed on administrative leave.  Adams sent Do a notice of intent to terminate his employment effective July 31, 2009, “based on his response at the July 8 meeting to the question about why he told his supervisor to get out of his face (by indicating so that you wouldn’t ‘deck him.’)”  Adams stated that the incident demonstrated unsatisfactory performance and that the conduct was inappropriate and inconsistent with the Policy.

    Do received a “Skelly” hearing and appealed through three levels of administrative review but the termination was upheld at each level.  The trial court denied Do’s administrative mandamus petition.  The trial court found that “it’s a very close case.”  The judge stated, “I’m not sure I would come to the same result if I were the hearing officer or if it was an independent standard of review, but using the substantial evidence test in the context of the language, I think I'm compelled to” deny the petition.


    Do asserted the trial court should have applied the independent judgment standard of review because he was a permanent employee who was deprived of his property right in his employment.  Do claimed that only legal questions were presented for review.   The court of appeal rejected this argument and affirmed the decision of the trial court.    

    The University argued that the trial court correctly applied the substantial evidence test.  It asserted that under article IX, section 9, of the California Constitution, it “has been delegated the quasi-judicial power to conduct its own administrative decisionmaking on staff employment matters” because it is a constitutionally-created institution.  The court noted that it is well settled that the powers delegated to the University “include quasi-judicial administrative authority to resolve individualized employment disputes, by applying University policies to particular cases.”

    Do was not discharged in violation of a statutory or contractual right or in violation of public policy.  The University dismissed Do because he failed to comply with the University’s Policy and its core values.  The court concluded the trial court properly applied the substantial evidence test to the University’s decision.  The court further concluded that the evidence supported Do’s termination.

    Do argued that his June 4 statement to Fletcher to get out of his face “was less than seriously threatening.”  He also claimed that his July 8 comment about not “decking” Fletcher did not amount to a threat at the time.  He asserted that Fletcher could not have had a reasonable fear of harm from either statement and that he did not intend to create fear.

    The court found that the hearing officer did not rely only on speculation of future harm.  The evidence showed that Do’s and Fletcher’s working relationship over time had been stressed and strained.  The history of the relationship “could have caused Fletcher to have developed a reasonable fear for his safety.”  The court concluded that this evidence was “sufficient to show Do’s statement was an intentional act within the meaning of the zero tolerance policy, as the University officials were entitled to interpret the policy.”  A lesser remedy than termination was not required because the Policy did not require progressive discipline when there had been acts of insubordination or other serious misconduct.

    The court of appeal acknowledged that “this was a close case” but concluded the “University provided substantial evidence from which the hearing officer could reasonably conclude that the University’s personnel policies were violated.”  Accordingly, the court of appeal affirmed the decision of the trial court.