Opinion
C081193
06-12-2018
KIMBERLY BROUILLETTE, Plaintiff and Appellant, v. MONTAGUE ELEMENTARY SCHOOL DISTRICT et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCSCCVPT14831)
Kimberly Brouillette appeals from the denial of her petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Brouillette sought administrative mandamus after she was terminated from employment as a business manager at the Montague Elementary School District (District). After a hearing, the District found substantial evidence showed Brouillette engaged in several instances of dishonesty, insubordination, incompetence, and disrespectful treatment of her colleagues.
On appeal, Brouillette's challenge to her termination does not involve any dispute that she was a poor employee or that the District had good cause to terminate her employment. Instead, Brouillette contends she did not receive procedural due process. Specifically, she argues she should be restored to her position with full pay because (1) she was not provided a pretermination hearing as required by Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly), (2) the District failed to provide her with a complete set of documents supporting the charges against her, (3) the District did not provide her with a reasonable time to respond to the allegations serving as the basis for the termination, (4) the District did not adequately articulate the reasons for 4 of the 19 reasons given for the termination of employment, (5) the District did not timely provide her with a copy of the allegations against her, and (6) the District "did not follow its own policy when it terminated" her employment.
We conclude the District complied with procedural due process requirements in terminating Brouillette from employment. The notice of the allegations of her deficient performance combined with the opportunity to respond before her termination satisfied due process. After her termination, Brouillette received a full hearing before the District's board of trustees. The remainder of Brouillette's contentions are forfeited for lack of any legal authority cited in support of her arguments.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Brouillette's Job Performance
We recount only briefly the District's factual findings regarding Brouillette's job performance because she does not challenge these findings on appeal. The District's findings included: Brouillette began working as a business manager for the District in November 2011. In May 2012, she placed a nonurgent call to a District employee who was on bereavement leave and distressed by the call. She abandoned an assignment relating to health insurance premiums paid by superintendent, Gary Lampella. Brouillette did not timely finish year-end budget items in August 2012. She failed to turn in work calendars as instructed. Brouillette repeatedly engaged in disrespectful treatment of other District employees so that Lampella received "40 to 50" complaints about her. The Board specifically found that "Brouillette was dishonest with her co-workers and her supervisor in several ways during her work at the District. She repeated several of these dishonest statements during her testimony before [the] Board, demonstrating both dishonesty on the job and dishonesty in her testimony in [the] hearing in an attempt to avoid discipline."
Termination of Employment
Lampella and Brouillette met on October 10, 2012. During that meeting, Lampella stated Brouillette would be dismissed if her work and demeanor did not begin to meet expectations. Brouillette was directed to formulate three goals for improvement by October 16, 2012. She missed the deadline, and turned them in on November 1, 2012. Lampella and Brouillette conducted follow-up meetings in October and November 2012.
In March 2013, Lampella observed Brouillette interact with another District employee. The Board credited Lampella's testimony that "it was the worst instance he had seen in his 37 years as an educator of how one professional treated another." Lampella "was 'appalled' at her behavior."
On March 21, 2013, Lampella again discussed his concerns with Brouillette about her rude manner with colleagues. Lampella suggested it would probably be in Brouillette's best interest to start looking for another position. Brouillette responded by asking when her last day would be. Lampella "was a little bit aghast with that" and said he would "need to think about it . . . ." Over the course of the next week, Lampella and Brouillette had several discussions about the topic. The discussion "always came back to compensation, it seem[ed] like, and that she wanted to be compensated up through the month of May. Lampella and Brouillette mutually decided April 1, 2013, would be her last date of work but she would be paid through the first week of May 2013.
On April 9, 2013, Lampella sent a notice of potential disciplinary action via certified mail letter to Brouillette. In the letter, Lampella stated: "I am considering dismissing you from your employment with the District" for insubordination, dishonesty, disrespectful treatment of colleagues, and incompetence. The letter articulated 19 factual allegations in support of the charges. The letter informed Brouillette: "You have the right to respond orally or in writing to the above allegations and charges. If you desire to respond in writing I must receive your written response no later than Thursday, April 18, 2013. If you desire to respond orally, please contact me so that I or my designee may meet with you on or before April 18, 2013."
Brouillette did not provide a substantive response to the allegations or request a meeting. Instead, on April 18, 2013, she requested additional time to respond. Lampella denied the request for additional time.
For lack of substantive opposition, Lampella sent Brouillette a letter on April 23, 2013, in which he noted he would recommend her employment be terminated at the District on the same grounds as stated in the notice of potential disciplinary action. The letter advised Brouillette of her right to request a hearing in front of the District's board of trustees (Board). Brouillette requested a hearing.
Board Hearing
The Board conducted a two-day hearing on July 24, 2013, and August 14, 2013. The hearing culminated in the Board's decision that "[t]aken as a whole, the impact of [Brouillette]'s behavior was a substantial problem for the District. She was warned of these problems by her supervisor in October and November 2012 and was directed to improve, yet she failed to do so. Most of the performance problems required no progressive discipline, as no reasonable employee would require warnings that truthfulness or following the directions of supervisors is important. These problems were egregious so that it severely impacted the ability of District staff to get basic business operations completed. For the reasons discussed above, the Governing Board agrees with the recommendation of termination of [Brouillette] and determines that she should be dismissed as an employee of the Montague Elementary School District, effective on her last day of active service with the District, April 1, 2013."
DISCUSSION
I
Failure to Provide a Pretermination Hearing
Brouillette argues the District did not afford her procedural due process because she was not provided with a pretermination hearing. We disagree.
A.
Standard of Review
The right of a public employee to continued employment constitutes a fundamental vested right for purposes of procedural due process requirements for a termination of employment. (Flippin v. Los Angeles City Bd. of Civil Service Com'rs (2007) 148 Cal.App.4th 272, 279 (Flippin).) "When a fundamental vested right is involved, such as the right of a city employee to continued employment (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129), the trial court exercises its independent judgment to determine whether due process requirements were met and whether the agency's findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51 (Kazensky).) An appellate court must sustain the trial court's factual findings if substantial evidence supports them, resolving all conflicts in favor of the prevailing party, and giving that party the benefit of every reasonable inference in support of the judgment. (Kazensky, at p. 52.)" (Flippin, supra, at p. 279.)
B.
Pretermination Procedural Due Process Requirements
In Skelly, the California Supreme Court examined the procedural due process requirements for terminating a permanent civil service employee from employment. (15 Cal.3d at p. 197.) The Skelly court held that "due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action." (Id. at p. 215.) Instead, procedural due process requires that the employee be afforded notice of the charges and an opportunity "to respond either orally or in writing to the authority initially imposing discipline." (Id. at p. 215.) " 'To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.' " (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1277 (Gilbert), quoting Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1281 (1975).)
Procedural due process in the civil service realm does not involve a fixed formula such as an invariable prerequisite for a pretermination hearing. "Subsequent to Skelly, the California Supreme Court and the United States Supreme Court have repeatedly recognized that due process is a flexible concept. (See e.g. Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 561, 150; Gilbert v. Homar (1997) 520 U.S. 924, 930, 138 L.Ed.2d 120.) 'It is by now well established that " 'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 6 L.Ed.2d 1230 (1961). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 33 L.Ed.2d 484 (1972).' " (Gilbert, supra, 130 Cal.App.4th at p. 1276.)
C.
Brouillette's Notice and Agreement to Stop Working
In this case, the Board found substantial evidence supported the finding that "Brouillette brought up the issue of her last day o[f] work with [Lampella] in March 2013 and that she agreed to stop working without objection. [Citation.] The Board finds that she voluntarily agreed to cease work pending the outcome of the recommendation for discipline and this hearing." Although Brouillette was informed in the notice of potential disciplinary action of her right to respond orally or in writing to the allegations against her, she provided no substantive response. Instead, Brouillette requested more time to respond.
Brouillette received the necessary pretermination procedural due process guarantees of notice and an opportunity to respond to the allegations against her. Specifically, she had been informed several times of concerns with her job-related performance. There is no dispute Brouillette also received the notice of potential disciplinary action and eight days to provide a substantive response to the allegations in the notice. (Skelly, supra, 15 Cal.3d at p. 214.)
Our conclusion obviates the need for this court to consider whether her sua sponte raising the issue of her last day at work and voluntary agreement to cease working separately excused any need for a pretermination hearing. (See Flippin, supra, 148 Cal.App.4th at p. 281.) --------
We reject Brouillette's reliance on Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95 (Bostean). Bostean involved an employee of a school district who was placed on indefinite involuntary illness leave for seven months. (Id. at p. 99.) The employee received no hearing before his supervisors determined he was unable to perform the duties of his job. (Id. at p. 101.) The employee's physician, however, noted the employee was able to carry out the requirements of his job. (Id. at pp. 101-102.) Nonetheless, the employee was placed on leave without giving the employee notice of the allegations supporting the leave and without an opportunity for a hearing before being placed on leave without pay. (Id. at p. 102.) The Bostean court held that employees are generally entitled to procedural due process, such as a hearing, before being placed on unpaid leave. (Id. at 112- 113.) As Bostean notes, "an employee has a 'significant private interest in the uninterrupted receipt of his [or her] paycheck' [citation], thus indicating that the interest affected by state action in the instant case is significant, weighing heavily in favor of a predeprivation hearing if there is no countervailing state interest warranting immediate action." (Id. at p. 113.)
In contrast to Bostean, supra, 63 Cal.App.4th 95, Brouillette was placed on leave with pay and only after being apprised of the grounds for the proposed adverse action against her. Indeed, Brouillette secured the period of payment that she asked from Lampella. Under the circumstances, we conclude Brouillette received procedural due process prior to termination.
II
Failure to Provide Complete Documents Supporting the Termination
Brouillette contends she did not receive procedural due process before her termination because the District did not provide her with copies of all documents supporting the allegations against her prior to the hearing in front of the Board. She further contends the District committed error by providing incomplete copies of eight documents when it eventually did provide documents to her. We are not persuaded.
B.
Procedural Due Process Requirements
In Skelly, supra, 15 Cal.3d 194, the California Supreme Court held the minimum procedural due process protections required before an adverse employment action may become effective includes "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. 214, italics added.) Brouillette seizes upon the italicized language to argue that any failure to provide an employee with all of the materials upon which the adverse employment action is based constitutes a denial of the required procedural due process. We disagree.
Subsequent to Skelly, supra, 15 Cal.3d 194, courts have clarified that due process does not require an employer to provide all copies of documents related to charges upon which a public employee is dismissed. (Gilbert, supra, 130 Cal.App.4th at pp. 1279-1280.) Gilbert provides an apt illustration. That case involved the termination of a police officer accused of inappropriate use of law enforcement databases and passing the information for the benefit of an alleged prostitution business. (Gilbert at pp. 1270-1271.) The officer was given a notice of dismissal that described the grounds for dismissal and supporting facts but did not attach any documents to the notice. (Id. at p. 1272.) The police department informed the terminated officer that some of the documents would be available on request while others remained in the sole custody of the Federal Bureau of Investigations due to an "open and active" federal case. (Ibid.) In challenging his termination, the officer argued he was entitled to "all documents identified" as related to issues raised at his pretermination hearing. (Id. at p. 1275.)
The Gilbert court rejected the argument "that the word 'materials' as used in Skelly means each and every document identified in the [termination action] was required to be produced prior to his pretermination hearing in order to satisfy due process." (Gilbert, supra, 130 Cal.App.4th at p. 1280.) Instead, due process requires only that the employee be informed of the nature of the charges, the substance of the relevant evidence supporting the charges, and have an opportunity to respond to the charges. (Id. at p. 1278.) The Gilbert court also held the employee bears the burden of proving the materials received prior to a pretermination hearing were not sufficient to provide a meaningful opportunity to respond to the charges. (Id. at p. 1281.)
C.
Notice Received by Brouillette
Regarding Brouillette's argument she did not receive the documents supporting the allegations against her, the Board found as follows: "Brouillette stated that she did not receive copies of the materials upon which the charges were based. Exhibits 8 through 21 were not provided to [Brouillette] until 2013. No prejudice for this short delay is shown, as the hearing in this matter was held on July 24 and August 14[, 2013,] giving [Brouillette] time to review the documents which largely consist of emails and related documents that support the charges and are not direct evidence of the disciplinary charges."
Due process did not require that Brouillette receive all of the documents relating to the charges against her. Instead, she was entitled to notice regarding the charges against her and to be informed of the substance of the relevant supporting evidence. (Gilbert, supra, 130 Cal.App.4th at p. 1278.) These requirements were met. Brouillette received a notice of potential disciplinary action that described in detail the charges against her. And the record indicates Brouillette actually received copies of the documents supporting the charges prior to the Board hearing. Accordingly, we discern no due process violation.
D.
Missing Portions of Documents
Brouillette contends she was deprived of procedural due process because some of the documents she received before her hearing in front of the Board were missing pages or portions. Specifically, Brouillette refers to Exhibits 8, 10, 11, and 12 that were introduced during the hearing in front of the Board. We conclude Brouillette has not preserved this contention for appeal.
It is well settled that "under section 1094.5 of the Code of Civil Procedure there is no provision for hearing and deciding matters not presented to the board." (Fermin v. Department of Employment (1963) 214 Cal.App.2d 586, 590.) "Generally, unless the error is such that it could not have been corrected below, the failure to bring the error to the attention of the administrative agency by means of an objection or otherwise precludes its review on appeal." (Morris v. Unemployment Ins. Appeals Bd. (1973) 34 Cal.App.3d 1002, 1008.) Thus, Brouillette was required to raise evidentiary issues before the Board. " ' "The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body. . . ." ' " (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 930, quoting Milligan v. Hearing Aid Dispensers Examining Com. (1983) 142 Cal.App.3d 1002, 1008.)
During the hearing before the Board, counsel for the District moved to admit documents 8, 10, 11, and 12 into evidence. Brouillette's attorney stated he had no objection to any of these documents. As a consequence, the Board's decision indicates these documents were admitted without objection. The lack of objection before the Board to the admitted documents constitutes a waiver of the issue on appeal. (Griswold v. Dept. of Alcoholic Beverage Control (1956) 141 Cal.App.2d 807, 811.)
III
Forfeited Contentions
Brouillette next advances four arguments without providing any legal authority in support. (1) Brouillette contends the District erred because it "did not provide [her] with a reasonable time to respond." (2) Brouillette argues the District "did not provide [her] with any reasons for charges 5, 10, 12 and 15, nor did the [District or Board] allege any wrongdoing regarding these allegations." (3) She asserts the District "did not provide [her] with a copy of any of the charges related to allegations 5, 10, 12 and 15." And (4) Brouillette states the District "did not follow its own policy when it terminated" her employment.
"To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' (Atchley v. City of Fresno [(1984)] 151 Cal.App.3d [635,] 647; accord, Berger v. Godden [(1985)] 163 Cal.App.3d [1113,] 1117 ['failure of appellant to advance any pertinent or intelligible legal argument . . . constitute[s] an abandonment of the [claim of error'].)" (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Consequently, Brouillette's four legally unsupported arguments are forfeited.
IV
Penalty
Finally, Brouillette argues the procedural due process violations committed by the District compel the award of full back pay and benefits. Brouillette does not argue the penalty imposed is excessive in light of the misconduct, but the denial of procedural due process requires full back pay and benefits. Having determined the District did not err procedurally, we reject Brouillette's contention, which depends entirely on the assertion of procedural error.
DISPOSITION
The judgment is affirmed. Montague Elementary School District and Montague Elementary School District Board shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
MAURO, J.