Opinion
A163535
12-05-2023
JANE DOE, Petitioner, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG20068696.
Banke, J.
During a meeting to discuss the results of a whistleblower investigation involving four fellow faculty members, Professor Jane Doe asserted these individuals had lied to the investigator and said she would kill them and herself. This triggered a disciplinary proceeding in which the University of California, Riverside's Privilege and Tenure Committee, and then the University's Chancellor, found Doe violated the faculty code of conduct and the University's zero tolerance for violence policy. The Chancellor imposed a six-month suspension without pay but provided Doe with the option of a ninemonth coaching program to improve her relations with fellow faculty members. Doe opted to participate in the coaching program. But after three months, the University concluded Doe was not meaningfully engaging in the program and the Chancellor imposed the suspension, although shortened to four months.
Doe filed an administrative mandamus action (Code Civ. Proc., § 1094.5) challenging the disciplinary action and sought a temporary restraining order to avoid the suspension. The trial court denied immediate temporary relief and subsequently denied her writ petition on the merits. We affirm.
All further statutory references are to the Code of Civil Procedure.
Background
In 2002, Doe was appointed a professor in the department of physics. There, she was a part of the high energy physics group, which derived some of its funding from a "renewable Department of Energy (DOE) grant." In 2006, the University's lead principal investigator for the DOE grant stepped down. Although Doe had some prior experience as an investigator, the high energy group elected another professor as the new lead.
After the election, Doe e-mailed the then-Dean of the University's College of Natural and Agricultural Sciences and the University's "Special Assistant for Excellence and Diversity," stating she felt the actions of the high energy group "were 'at least partly a gender bias issue.'" Over the ensuing years, Doe continued to make allegations regarding the selection process, including that she had not been selected for the lead investigator position" 'because I am a woman,'" that someone was reading her e-mails and using the information obtained therein to "blackmail" her, and that some faculty members were bullying her.
Eleven years after the high energy group selected the new lead investigator, Doe e-mailed University of California President Janet Napolitano about" 'Gender Bias at UC Riverside.'" Less than two weeks later, Nicole Butts, the University's director of equal employment and affirmative action, e-mailed Doe to address her concerns. Over the next month, the two e-mailed back and forth but Doe "did not file a gender discrimination complaint" with Butts.
Nevertheless, in accordance with the University's "Whistleblower Policy," its locally designated official, Elizabeth Boyd, "initiated a whistleblower investigation" of the alleged gender discrimination, unauthorized access to Doe's e-mails, and bullying. Doe's allegations were determined to be either unfounded or unsubstantiated.
Vice Provost for Administration Resolution John Andersen, Associate Vice Chancellor and Chief Compliance Officer Kiersten Boyce, and Dean of the College of Natural and Agricultural Sciences Kathryn Uhrich, then met with Doe to discuss the findings of the investigation.
The Vice Provost for Administration Resolution is "a role to deal with, broadly speaking, faculty conduct issues. Those could range from very minor issues such as disputes between two faculty members over an issue, or a dispute between a department chair and a faculty member to cases that involve violations of the Faculty Code of Conduct, also known as APM-015."
Prior to the meeting, Doe had "expressed suicidal thoughts with statements such as 'life isn't worth living' and that she 'wanted to kill herself.'" Uhrich "considered these statements to be sincere," grew "increasingly concerned about [Doe's] wellbeing," and "referred her to appropriate resources." Because of these prior suicidal statements, Uhrich requested Dr. Sam Vickery, a clinical psychologist, and University police officer Paul Dombroski to wait in a nearby office during the meeting.
Andersen, Boyce, and Uhrich had slightly different recollections of what occurred at the meeting:
Andersen recalled that after discussing the findings, Doe said," 'They are all liars,'" and then, "very blunt and matter-of-fact[ly]," stated," 'I'm going to kill them, and then kill myself.'" Andersen was "stunned" and "quite shocked that somebody would make a statement of that nature." "Given . . . the investigation," he thought" 'them'" meant "the respondents, my understanding of the respondents, it was the High Energy Group. I assumed 'them' referred to the faculty in the High Energy Group."
Boyce recalled that during the meeting Doe "made a number of negative statements regarding the investigation subjects" and colleagues of hers in the physics department, whom she believed had "mistreated her for years." Doe described their actions towards her as" 'horrible' and 'unspeakable.'" At one point, after Boyce told Doe the allegations had been found to be unsubstantiated, Doe began asking "what she could or should do now, and said words to the effect of 'Do I have to kill them all?' or 'So I have to kill all of them.'" "[F]rom the context" Boyce also thought" 'them'" referred to Doe's "colleagues in the physics department. Specifically, those in the High Energy group that were, what we call, the respondents in the investigation." Boyce did not think Doe's words were "a joke" and did not believe Doe "was attempting to be humorous" and told Doe the "threatening statement" was "actionable." In Boyce's opinion, Doe's words "may have been a spontaneous expression of frustration or a rhetorical question without any actual intent to harm, or it may have been a true, substantive threat."
Uhrich recalled that upon learning the investigation had concluded and the claims "were unsubstantiated and unfounded," Doe stated she was going to" 'kill them and then kill herself.'" Doe's "tone was very even, very cool," which Uhrich found "unnerving and disconcerting." Uhrich did not think Doe was joking, nor did Doe appear to "be blowing off steam or frustration." Rather Uhrich took the statements seriously, and also understood" 'them'" "to be the faculty who were part of the investigation."
Thus, all three-Andersen, Boyce and Uhrich-took Doe's "statement very seriously and were shocked by it and thought that it needed to be dealt with according to our zero[-]tolerance policy."
After the meeting, Andersen went to Dr. Vickery and Officer Dombroski and told them about Doe's statements, and the following day Andersen initiated a "threat assessment." The University police department interviewed Doe and concluded "there was not an imminent threat of harm to others." The police department also performed an "assessment to verify whether . . . Doe had a firearm, a registered firearm" and concluded she did not.
Two days after the meeting with Doe, Andersen met with the high energy physics faculty to discuss what had happened and "to inform [them] that [Doe] had made a threat against them." Andersen met with another respondent to the whistleblower complaint separately, as he was not a member of the high energy group.
Three days after the meeting with Doe, Andersen placed Doe on involuntary leave with pay, the stated grounds being "(1) threats of physical harm [to] members that interfered with the job duties of others; and (2) while there was no imminent threat, the administration could not rule out that future action by [Doe]." Anderson also met with the physics department faculty to inform them that Doe had been placed on involuntary leave but that he "could not disclose or discuss the reasons for that action."
Vice Provost of Administrative Resolution Daniel Jeske explained involuntary leave is not a disciplinary action, rather it is "a cautionary measure to sort of bring the situation to some stability while an investigation is conducted to determine if there's going to be discipline." (The Faculty Code of Conduct, APM-016.II.4 ["Suspension as a disciplinary action is to be distinguished from involuntary leave, which is a precautionary action."].)
Doe filed a grievance with the University's committee on privilege and tenure, after informal attempts at resolution failed. The committee determined Andersen acted "within his authority" in placing Doe on involuntary leave. Doe then filed a petition for writ of mandate against Andersen (case No. RG19020426), and successfully sought preliminary injunctive relief staying the leave. Eventually, the parties filed a joint stipulation for entry of judgment, which the trial court entered in December 2019.
On our own motion, we take judicial notice of the Register of Actions in case No. RG19020426. (Evid. Code, § 452, subd. (d).)
In the meantime, the University pursued disciplinary action against Doe for violation of its faculty code of conduct and University policies, and a hearing before the privilege and tenure committee was scheduled. The issues before the committee were: (1) "Has the Administration met its burden of proving by clear and convincing evidence that Professor Jane Doe violated APM 015.11.C.4 by making: 'threats of physical harm to, or harassment of another member of the University community, that interferes with that person's performance of University activities'?"; (2) "Has the Administration met its burden of proving by clear and convincing evidence that Professor Jane Doe violated APM 015.11.C.8 and/or or UC Riverside Policy 850-85 . . .: by committing a 'serious violation of University policies governing the professional conduct of faculty, including but not limited to . . . violence in the workplace'?"; and (3) "If [Doe] committed violations of the Faculty Code of Conduct, [as described,] what is the appropriate sanction?"
General University Policy Regarding Academic Appointees, The Faculty Code of Conduct, APM-015.II.C. enumerates "Types of unacceptable conduct," which include "Forcible detention, threats of physical harm to, or harassment of another member of the University community, that interferes with that person's performance of University activities."
APM-015.II.C.8 also defines as unacceptable conduct, "Serious violation of University policies governing the professional conduct of faculty, including but not limited to policies applying to research, outside professional activities, conflicts of commitment, clinical practices, violence in the workplace, and whistleblower protections."
University policy No. 850-85, titled Violence Prevention in the UCR Community-Zero Tolerance for Violent Behavior provides, "The policy of the University of California, Riverside is a Zero Tolerance Standard with regard to Violent Behavior on the UCR campus or among the UCR Community. [¶] All covered individuals are specifically prohibited from engaging in any kind of Violent Behavior, whether direct, indirect, implied, or actual. This type of conduct is prohibited in all UCR buildings, facilities, rooms, spaces (indoor or outdoor) and at all locations where UCR business is conducted. [¶] . . . [¶] All Violent Behavior will be taken seriously and reported, and will not be dismissed as 'idle threats,' 'blowing off steam,' or 'a joke.' All Violent Behavior will be reported immediately to the next-in-line supervisor or academic administrator who is not a party to the alleged violation, or to a Violence Prevention Team Member." "Violent Behavior," includes, but it not limited to, "Threat: Any physical, written or verbal conduct, whether direct, indirect, implied or conditional that conveys intent, or is reasonably perceived to convey intent, to cause physical harm, or to cause someone to fear for his or her safety or for that of others."
At the three-day hearing, Doe, Andersen, Boyce, and Uhrich, as well as three of the respondents in the whistleblower investigation and Physics Department Chair Kenneth Barish, testified. The committee also considered the University's and Doe's pre-and post-hearing briefing, and reviewed several exhibits, which included dozens of e-mails about Doe and between Doe and various faculty, documents regarding Doe's faculty background and accomplishments, the whistleblower investigation report, and the report and supporting documentation for the involuntary leave action.
The committee issued a 14-page report of its findings and recommendations to Chancellor Kim Wilcox. Before turning to the charges against Doe, the committee observed there had "been an ongoing tension and conflict between Prof. Jane Doe and the members of the High Energy Physics group" for over a decade. As a result of this tension, there was "no collegial interaction" between Doe and the group, and instead there was a "toxic environment, where proper communication, mutual respect, and trust are lacking." Additionally, "past administrative actions may have contributed to magnifying the conflict rather than mitigating it. [¶] In particular," continued the committee, "the way in which Prof. Jane Doe's conduct during the February 19 meeting was reported by [Vice Provost Andersen] to [Doe's] colleagues and his decision to impose Involuntary Leave appear to have exacerbated the tension and the conflict among the faculty rather than help de-escalate the issue and forge a path toward a non-disciplinary resolution."
In regard to the two charges, the committee concluded, by a 2-1 decision, that the University had "met its burden of proof on both issues by clear and convincing evidence." The majority found (1) Doe, "in the presence of three reliable eyewitnesses . . . uttered words threatening physical violence ('to kill them') toward the respondents on the whistleblower investigation"; (2) "the words uttered by Prof. Jane Doe were reasonably taken to constitute a genuine threat of physical violence by the eyewitnesses, even if uttered in a state of surprise, shock, or agitation when Prof. Jane Doe was presented with the unexpected outcome of the whistleblower investigation"; and (3) "once [Vice Provost Andersen] relayed the threat to some of the faculty at the Physics department, the threat issued by Prof. Jane Doe interfered to various degrees with the ability and willingness of [the four respondents] to perform a variety of standard professional duties in teaching, research, advising, and service."
The committee also found "the words uttered by Prof. Jane Doe constitute an instance of 'threats of physical harm' that fall under [University policy] APM 015 Section II.C.4 of the Faculty Code of Conduct, regardless of the immediacy or level of threat," and that Doe's "conduct is an instance of the kind of violent behavior prohibited by the Zero tolerance policy [(University policy 850-85)] and, as such, sanctionable."
The majority recommended a six-month suspension without pay.
The third member of the hearing committee concluded there was not clear and convincing evidence that Doe had violated the faculty code of conduct. First, the minority noted "the statements of the three witnesses who were present at the meeting were not consistent," as each one had a different recollection of what Doe said. Thus, "the minority concludes that there is not clear and convincing evidence that Professor Jane Doe's verbal conduct conveyed intent, or was reasonably perceived to convey intent to cause physical harm and, thus she did not violate the Faculty Code of Conduct." (Italics &underscoring omitted.) Additionally, Doe either denied making any comments, had no recollection of any comments, or was "misinterpreted" in her comments due to the "shock" of learning of the whistleblower investigation.
The minority also did not find clear and convincing evidence the words uttered by Doe "were reasonably taken to constitute a credible/genuine threat of physical violence" as evidenced by the University police assessment; the fitness for duty evaluation; and a threat assessment consultation report performed by a clinical and forensic psychologist. "[T]he uttering of the words did not . . . 'cause someone to fear for his or her safety or for that of others,'" however, "the minority of the Committee understands that once the statements by [Doe] . . . were conveyed by [Andersen], and the way it was conveyed to some of the faculty . . . may have interfered to various degrees with their ability to perform some standard professional duties." As to charge 2, the minority found the University had not met its burden of proof by clear and convincing evidence that Doe's verbal conduct conveyed intent, or was reasonably perceived to convey intent to cause physical harm.
After reviewing the committee report, Chancellor Wilcox issued a final decision, recommendation and notice of conclusion in the disciplinary matter, agreeing with the majority's findings.
As to the first charge-that Doe violated University policy by" 'making threats of physical harm to, or harassment of another member of the University community, that interferes with that person's performance of University activities' "-Wilcox concluded "the record demonstrates, there is no credible evidence that there is a factual dispute as to whether a threat of physical harm was made. A statement threatening to kill someone is perhaps the ultimate threat of physical harm a person can make." All three witnesses to the statements made by Doe, "specifically and consistently recollected in contemporaneous writings and in testimony . . . that [Doe] threated to 'kill them.' And all three clearly understood from the context of and discussion during that conversation that 'them' referred" to the four respondents in the whistleblower complaint. Doe "did not and could not refute that she made such [a] statement, conceding instead that she could not remember one way or another whether she made the threat."
Wilcox did not find the minority's view-that the three witnesses were not" 'consistent' because the words and word order were not identical"- persuasive. Nor was he persuaded by Doe's "attempt . . . to deflect from her responsibility for making the death threat by arguing that it was actually [Andersen] that both made the threat, and interfered with the other professors' performance . . . merely because [he] informed the faculty members of [the] death threat she made against them."
Wilcox further pointed out UCR policy No. 850-85 includes" 'indirect' threats," the no tolerance policy mandated reporting of any incident of violent behavior, and it went "without saying that each University employee should be apprised when any member of administration is aware of a death threat against them by another employee." Additionally, there was "ample evidence" that the threat made by Doe interfered with the four respondents' ability "to perform a variety of standard professional duties in teaching, research, advising, and service."
As to the second charge-that Doe committed "a 'serious violation of University policies governing the professional conduct of faculty," including but not limited to workplace violence, "and specifically, the [University's] No Tolerance for Violence Policy"-Chancellor Wilcox first clarified the applicable standard. He noted Doe and the minority opinion "continue to invoke the wrong policy standard(s)." Namely, they incorrectly looked to the "standard for an involuntary leave administered without a due process hearing," which requires "a 'high probability (strong risk) that the continued assignment of a Faculty member to regular duties will be immediately and seriously harmful to the University community.'" (Italics omitted.) The standard set forth in "APM 015.11.C.4 and the No Tolerance for Violence Policy No. 850-85, which is the test at issue in this case for the administration of discipline after a due process hearing is whether [Doe] 'conveyed intent, or was reasonably perceived to convey intent, to cause physical harm' to her colleagues." (Italics omitted.)
Wilcox then stated "that a person who utters a statement that they are going to kill someone 'conveys intent.'" Moreover, "the context of her statement that she was going to kill her colleagues demonstrates that at the very least it was 'reasonably perceived to convey an intent to cause physical harm,' no matter how imminent." Wilcox pointed to the fact that "three high level [University] administrators, the police, and a UC mental health professional had concerns about safety even before they communicated the findings" to Doe. Wilcox did not see any "evidence that the meeting lent itself to abstract political discourse or hyperbole.... Nor was there anything conditional in the nature of the threat. And the reaction of all who heard the threat directly and indirectly speaks volumes. They were quite reasoned, controlled and deliberate. The police were called. Campus Counsel was called. The Provost was engaged. A campus mental health professional was consulted. An outside threat assessment expert was consulted. A threat assessment team was immediately set up and it deliberated." There was "no evidence presented that anyone in attendance in the meeting or in the threat assessments that followed, believed the threat was benign or that it could be ignored."
Wilcox also considered Doe's apology letters to her four colleagues, in which Doe stated she had never made an accusation of gender discrimination and was" 'taken aback when she learned'" the nature of the investigation. Wilcox did not find Doe's claim "credible that she was unaware that the investigation was in substantial part about her claims of gender discrimination."
Despite Doe's repeated claim that she was unaware the investigation was about gender discrimination, the record shows otherwise. For example, and as mentioned by Chancellor Wilcox, in 2018, when Senior Investigator Kim Overdyck contacted Doe "for clarification" regarding her allegation of gender discrimination, Doe responded that both the previous and then-current chair of the physics department "have initiated some 'conflict resolution/gender bias investigations/actions.'" Doe also stated that two of the respondents were "somehow giving the funding agencies the idea that I should not be supported . . . because I do not work 'with them'-how could I work 'with them' when they forced me out of the grant, and besides, I think they really mean 'for them.' . . . I think that this is discrimination, or worse ('bullying'?)." Further, in an e-mail to Vice Provost Andersen after the February meeting, she stated "The criticisms of me as PI were unfounded (And there is probably also gender bias in this-Anne Kernan started the experimental high energy physics group, and she should have been the PI- she retired before I came)."
Given the "egregious nature of [Doe's] death threat," Chancellor Wilcox agreed with the recommendation of a six-month suspension. However, Wilcox deferred imposition of the sanction, provided Doe agreed to a ninemonth coaching regimen "designed to assist [her] in collegial communications with her colleagues and in exploring more healthful mechanisms to deal with conflict."
At that point, Doe filed the instant administrative mandamus action (case No. RG20068696), and sought an immediate stay of any disciplinary action, which the trial court denied.
Doe then chose to participate in nine months of coaching in lieu of a sixmonth suspension without pay. However, after three months, Vice Provost Jeske wrote to Chancellor Wilcox informing him Doe's performance was so far unsatisfactory. Doe showed an "unwillingness to accept the stated goals of the coaching sessions" and "demonstrated [a] lack of cooperation with [her coach] and her highly qualified team." This led Jeske "to conclude the coaching sessions are not serving the useful purpose articulated" by Wilcox, and he recommended "the coaching sessions end effective December 30, 2020."
In light of this recommendation, and after an update from Doe's coach, Chancellor Wilcox terminated further coaching and placed Doe on four months' unpaid suspension.
Doe moved for a stay of the suspension, which the trial court denied.
In the meantime, the parties submitted briefing on the merits of Doe's writ petition, and the court thereafter issued a tentative ruling against Doe. Following a hearing, the court ruled the University's actions were supported by substantial evidence.
The court stated Doe "made statements during a meeting to discuss the outcome of a whistleblower investigation that pertained to petitioner. The comments at issue are Petitioner's statements during the meeting threatening to 'kill them' and 'kill myself' which violated the University's 'Zero Tolerance for Violent Behavior' policy 850-85....Those comments were interpreted as threats of harm to other faculty members and threats of selfharm and found to conveyed [sic] an intent to cause physical harm. [Citations.] Many of the individuals who were Jane Doe's colleagues changed their behavior to avoid Jane Doe out of concern for their safety." In conclusion, "having considered the administrative record and the arguments of counsel by Doe, in support of this motion, and by Respondent, in opposition . . ., [the court] [found] there is substantial evidence that supports the University's findings in light of the court's consideration of the whole administrative record."
Discussion
Standard of Judicial Review
Generally, "[s]ection 1094.5 establishes the scope of judicial review of an adjudicatory decision by an administrative agency. [Citation.] That review 'extends to questions about the agency's jurisdiction to proceed, whether there was a fair trial, and "whether there was any prejudicial abuse of discretion." '" (O'Brien v. Regents of University of California (2023) 92 Cal.App.5th 1099, 1115 (O'Brien), quoting § 1094.5, subd. (b); Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 34; Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2023 supp.) Scope of Judicial Review in Administrative Mandamus Proceedings, § 3.8.) "An agency abuses its discretion if it fails to proceed in a manner required by law, if its decision is not supported by the findings, or if its findings are not supported by substantial evidence. (§ 1094.5, subd. (b).)" (O'Brien, at p. 1115.)
Nevertheless, "[t]he standard for reviewing an agency's findings of fact can cause confusion. In the trial court, if the administrative decision substantially affects a fundamental vested right, the court must independently review the record to determine whether the weight of evidence supports a factual finding, whereas the substantial evidence test applies when a fundamental right is not at issue. [Citation.] But the appellate court applies a substantial evidence test, regardless of whether a fundamental right is involved. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824....) . . .' "On the other hand, if the superior court properly applied substantial evidence review because no fundamental vested right was involved, then the appellate court's function is identical to that of the trial court. It reviews the administrative record to determine whether the agency's findings were supported by substantial evidence." '" (O'Brien, supra, 92 Cal.App.5th at p. 1116.) Or stated another way, "what the appellate court reviews depends . . . on whether a fundamental vested right is involved. If it is, 'and the trial court therefore exercised independent judgment, it is the trial court's judgment that is the subject of appellate court review. [Citations.] On the other hand, if the superior court properly applied substantial evidence review because no fundamental vested right was involved, then the appellate court's function is identical to that of the trial court. It reviews the administrative record to determine whether the agency's findings were supported by substantial evidence.'" (JMS Air Conditioning &Appliance Service, Inc. v. Santa Monica Community College Dist. (2018) 30 Cal.App.5th 945, 965, italics omitted (JMS Air Conditioning); Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1260-1261 (Schafer).)
In her opening brief on appeal, Doe made reference to both the independent judgment/weight of the evidence standard and the substantial evidence standard and stated the University's action affected her "vested fundamental right in her reputation and . . . to freedom of speech and expression." She cited no authority, however, in support of her assertion that those are recognized vested fundamental rights for purposes of administrative mandamus. Nor did she make any argument that the trial court erred in failing to apply the independent judgment/weight of the evidence standard, even though it is clear the court applied the substantial evidence standard. Indeed, the trial court devoted a full paragraph to discussing the substantial evidence standard. For these reasons, alone, she has forfeited any argument that the trial court erred in not applying the independent judgment/weight of the evidence standard. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 [matters not properly raised or that lack adequate legal discussion will be deemed forfeited]; Kurinij v. Hanna &Morton (1997) 55 Cal.App.4th 853, 865 ["an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived"].)
In her closing brief, Doe supplied three case citations supporting her assertion that she "is entitled to an independent judgment standard of review." However, we generally disregard arguments made for the first time in a reply brief, since such belated arguments deprive the respondent of the opportunity to respond. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158 (United Grand Corp.).)
Furthermore, in her opening brief in the trial court in support of her writ petition, Doe made only passing reference to the independent judgment/weight of the evidence standard and did not urge that it, rather than the substantial evidence standard, which she also mentioned, applied. Instead, she devoted her brief to arguing that the University had not met its burden of proof under the University's policies to prove by "clear and convincing evidence" that she had made" 'threats of physical harm to . . . another member of the University community.'" In its opposition brief in the trial court, the University made no mention at all of the independent judgment/weight of the evidence standard and asserted the substantial evidence standard of review applied and discussed that standard at some length. In her reply brief, Doe likewise made no mention of the independent judgment/weight of the evidence standard and discussed only the substantial evidence standard of review.
In fact, in her reply brief, Doe stated she was "not suggesting that the Court should reweigh the evidence, determine credibility of witnesses, resolve conflicts in the evidence, or substitute its decision for the Committee majority's decision. [She] contends only that the evidence and unreasonable inferences put forth by the University do not support the finding that Petitioner made death threats against her colleagues." This, of course, describes the substantial evidence standard of review. (See JMS Air Conditioning, supra, 30 Cal.App.5th at pp. 967-968; Schafer, supra, 237 Cal.App.4th at p. 1260.) When a trial court applies the independent judgment/weight of the evidence standard, in contrast, it does reweigh the evidence, adjudge the credibility of witnesses (even on a cold administrative record), and make its own findings. (See Fukuda v. City of Angels, supra, 20 Cal.4th at pp. 817-818 [while trial court, in exercising its independent judgment, must afford a strong presumption of correctness concerning the administrative findings, the "trial court ultimately must exercise its own independent judgment" and "is free to substitute its own findings after first giving due respect to the agency's findings"].)
It is therefore no surprise that the trial court applied the substantial evidence standard. Doe invited the court to do so. Thus, for this reason as well, she has forfeited any claim on appeal that the independent judgment/weight of the evidence standard applies in this case. (See Santa Clara Waste Water Co. v. Allied World National Assurance Co. (2017) 18 Cal.App.5th 881, 888 (Santa Clara Waste) ["Under the invited error doctrine, a party cannot challenge a court's finding made at its insistence."].) We therefore need not, and do not, consider the issue further and treat this as a case in which the trial court properly applied the substantial evidence standard of review.
There is, however, a nuance to substantial evidence review where the standard of proof in the underlying adjudicatory tribunal is heightened, i.e., where, as here, the prosecuting party must prove its case by, and the tribunal must make findings of fact on the basis of, clear and convincing evidence. As our Supreme Court recently explained, "when the clear and convincing standard of proof applied in the trial court, an appellate court should review the record for sufficient evidence in a manner mindful of the elevated degree of certainty required by this standard." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000-1001.) Thus, "[i]n general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Id. at p. 1005.) This rule applies to a trial court's substantial evidence review of an agency's adjudicatory decision, as well, since the review undertaken by the trial and appellate court in such cases is identical. (See Schafer, supra, 237 Cal.App.4th at p. 1261 [where no vested fundamental right is at issue appellate court reviews the agency's decision, applying the same standard of review as trial court]; see also Li v. Superior Court (2021) 69 Cal.App.5th 836, 865 (Li) [trial court exercising its independent judgment in reviewing sufficiency of the evidence supporting an administrative agency's findings must also take into account the standard of proof in the underlying adjudicatory proceeding].)
It is doubtful the trial court here took into account the heightened "clear and convincing evidence" standard of proof by which the University had to prove the disciplinary charges against Doe, since Doe made no mention of this point in her trial court briefing and the court made no mention of it in its order. In fact, Doe raised this point for the first time in her reply brief on appeal. However, we need not, and do not, decide whether she has thereby forfeited any error by the trial court, or forfeited our taking into account the University's heightened standard of proof. As we discuss below, even taking into account the heightened standard of proof, substantial evidence supports the University's adjudicatory decision.
Substantial Evidence Supports the University's Action
The First Charge
The first charge against Doe was that she violated APM-015.II.C.4. This provision of the faculty code of conduct defines "[t]ypes of unacceptable conduct," which include "[f]orcible detention, threats of physical harm to, or harassment of another member of the University community, that interferes with that person's performance of University activities." (Boldface omitted.)
Doe first maintains there was no clear and convincing evidence that she made a "threat of physical harm." Specifically, she asserts the three witnesses-Vice Provost Andersen, Associate Vice Chancellor Boyce, and Dean Uhrich-"could not agree upon what they heard," and "[a]s such, the University failed to prove by clear and convincing evidence that any statement was made at all."
But, as Chancellor Wilcox stated, all three "specifically and consistently recollected in contemporaneous writings and in testimony . . . that [Doe] threated to 'kill them.' And all three clearly understood from the context of and discussion during that conversation that 'them' referred" to the four respondents named in the whistleblower complaint. That the three did not use identical language in describing events does not detract from the substantive import of their testimony-that they each heard Doe threaten to "kill them" and each understood "them" to mean the individuals who were the subject of the whistleblower investigation. Doe's hairsplitting based on the witnesses' exact word choice and individual phraseology is unavailing.
Nor does Doe's own testimony before the privilege and tenure committee detract from the strength of these witnesses' testimony. As Chancellor Wilcox observed, Doe "did not and could not refute that she made such . . . statement, conceding instead that she could not remember one or another whether she made the threat." Indeed, she testified she could not say she did not make the statements, only that she did not "remember making the statements." Accordingly, she could not call "the other three attendees at the meeting liars" because she could not "remember one way or another."
Likewise, Doe's pejorative characterization of these three witnesses' statements does not detract from their evidentiary value. She claims, for example, that Uhrich's testimony before the committee-that she heard Doe say," 'Then I'll kill myself and then I'll kill them' "-was "preposterous" and can "only be considered . . . hyperbole" because "[o]bviously, no one could kill themselves and then go on to kill others." However, as Chancellor Wilcox commented, "that a person who makes an illogical threat (such as 'I will kill myself and then kill them')" does not necessarily mean she "has only made a rhetorical threat and not an actual threat of physical violence," and more importantly, "APM 015.II.C.4 does not require . . . that the threat be 'logical,' 'credible,' 'imminent,' 'high' or even a belief that the person has the 'capacity' to carry it out."
Similarly, Doe characterizes Boyce's recollection-that Doe said" 'Do I have to kill them all? Or is it now that I have to kill them all' "-as a mere "rhetorical question, not a threat to kill," pointing to Boyce's testimony that "In my opinion, it may have been a spontaneous expression of frustration or a rhetorical question without any actual intent to harm." But Doe ignores that Boyce, in a written memorandum included in the records related to the initiation of disciplinary proceedings, stated "I did not hear the threatening statement as a joke and do not believe that [Doe] was attempting to be humorous. In my opinion, it may have been a spontaneous expression of frustration or a rhetorical question without any actual intent to harm, or it may have been a true, substantive threat."
Indeed, there was no evidence Doe was anything other than serious when she made the threatening statement. Andersen testified Doe uttered the threat "very blunt and matter-of-fact." He was "stunned" and "quite shocked" after hearing the threat. Boyce said Doe "was using a normal tone-of-voice.... It was serious," and she was "taken aback by what [Doe] said." Moreover, after Doe made the threat, Boyce immediately told her those words were "actionable." Uhrich, likewise, told the privilege and tenure committee, when asked whether she, Boyce, or Andersen had ever suggested Doe "wasn't serious" in her threat, said "No. I would say all three of us were aligned and consistent with our concerns."
Doe further maintains "there can be no finding that a threat of physical harm was made" because (1) "the alleged statements, if they were made, were made during a discussion about a gender discrimination investigation, which is known to cause 'mental distress for those involved, manifesting in irritability, frustration, and challenging behavior' "; (2) "the alleged statements, if made, were made by a 72-year-old woman, who had difficulty walking, and had never been known to be violent"; and (3) "the reaction of the listeners was not to immediately . . . call the alleged intended victims; instead, the response of the listeners was to continue the meeting."
Doe is doing nothing more than rearguing her case as though this court were the finder of fact, which it is not. Moreover, not one of these contentions undermines the findings and conclusions made by the University. That Doe made the threatening statement "during a discussion about a gender discrimination" does not mean Vice Provost Andersen, Associate Vice Chancellor Boyce, and Dean Uhrich should have discredited it. To the contrary, it is equally reasonable that a threat made during a tense situation would be particularly alarming. That Doe may have been older and of lesser physical strength than her colleagues certainly does not suggest, let alone compel a conclusion, that she could not have killed them. Finally, Doe was not allowed to simply "go on her way." To the contrary, as Chancellor Wilcox stated, "The police were called. Campus Counsel was called. The Provost was engaged. A campus mental health professional was consulted. An outside threat assessment expert was consulted. A threat assessment team was immediately set up and it deliberated.... It was then determined by the threat assessment team and [Andersen] that there was a high probability that the continued assignment of a Faculty member to regular duties would be immediately and seriously harmful to the University community.... Professor Jane Doe was then placed on interim paid leave. Likewise the four faculty members who were the subjects of the threat were notified pursuant to campus practice, and as arguably required under the Tarasoff case."
Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, superseded by statute on another point as stated in Regents of University of California v. Superior Court (2018) 29 Cal.App.5th 890, 903-904.
Doe additionally maintains any death threat was not a "true threat" and thus protected by the First Amendment because there was no evidence her statements "were intended to cause fear or belief that Doe would kill anyone." In particular, she points to the fact that (1) she was in a meeting that "was intended to be confidential" and therefore "had no reason to believe that any of her statements would be transmitted to anyone else" and (2) neither Andersen, Boyce nor Uhrich had "ever taken her remarks that she was dead or might kill herself seriously," so she "had no reason to suspect they would on that day" as evidence that she did not intend to cause fear.
Threats of violence fall outside the protection provided by the First Amendment. (Virginia v. Black (2003) 538 U.S. 343, 359.) A" '[t]rue threat[] encompass[es] those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. [Citations.] The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protects individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" (Id. at pp. 359-360.)
As discussed above, all three speakers stated they understood Doe's threat as a "serious expression of an intent to commit an act of unlawful violence," and their subsequent actions further underscores the seriousness of their concern. Moreover, even assuming Doe told Andersen, Boyce or Uhrich she believed the faculty meeting to review the investigation results was "intended to be confidential," and there is no evidence she did, they could well have assumed Doe was being more candid than she would have been in an open forum. As for Doe's second assertion, there was in fact grave concern about her prior statements, and Uhrich arranged for a campus security officer and a doctor to be present in another room because of Doe's past threats.
Doe contends the University also failed to prove any death threat interfered with her colleagues' "performance of University activities."
First, she maintains "the University failed to identify who 'them' were." To the contrary, Andersen, Boyce, and Uhrich all concluded "them" referred to members of the physics department and more specifically, to the four respondents in the whistleblower complaint. Andersen testified at the privilege and tenure committee hearing, "Given . . . the investigation," he concluded "them" were "the respondents, my understanding of the respondents, it was the High Energy Physics Group. I assumed that 'them' referred to the faculty in the High Energy Group." Boyce, likewise, understood "from the context" of the discussion that "them" referred to Doe's "colleagues in the Physics Department. Specifically[,] those in the High Energy group that were, what we call, the respondents in the investigation." Uhrich also understood "them" "to be the faculty who were part of the investigation." This testimony amply qualifies as clear and convincing evidence that Doe threatened colleagues in the high energy group.
Second, Doe maintains that even assuming "the University proved by clear and convincing evidence to whom 'them' referred," it "failed to prove by clear and convincing evidence that Doe's statement . . . 'interfere[d] with that person's performance of University activities.'" (Boldface omitted.) She points to (1) statements the trial judge made in denying her request for a stay of involuntary leave following the chancellor's revocation of personal coaching; (2) a photograph her attorney took after the privilege and tenure committee hearing of one of the whistleblower respondents with his office door open (the respondent had previously testified he now kept his door closed); and (3) the fact one of the respondents attended a conference in which Doe was also in attendance.
Whatever the trial court may have said in denying a stay is immaterial to our substantial evidence review of the administrative record. Indeed, in denying or granting immediate temporary relief, a trial court asks an entirely different question, i.e., "whether there's a rational belief that [Doe was] an imminent danger [at the time temporary relief was sought] to causing disruption in the department or to the physical safety of the people who feel that they're so threatened." As for the faculty member whose door was open, he explained that he normally did keep his door shut and opened it that day, and at that time of the day, because he was waiting for a student to stop by. Moreover, before he did so, he looked down the hallway and concluded Doe was not in her office because he could not see any lights. Had he known she was there, he would have kept his door closed and put a note on it asking the student to knock. As for the faculty member who attended the 150-person conference Doe also attended, he stated he "tried to stay as far away from her as possible." He also kept his "time on campus to the bare minimum" and "avoid[ed] faculty meetings . . . where Professor Jane Doe has attended in person."
In sum, ample evidence supported the University's finding, by clear and convincing evidence, that Doe violated APM-015.II.C.4.
The Second Charge
The second charge against Doe was that she violated University policy No. 850-85. This policy states, "The policy of the University of California, Riverside is a Zero Tolerance Standard with regard to Violent Behavior on the UCR campus or among the UCR Community. [¶] All covered individuals are specifically prohibited from engaging in any kind of Violent Behavior, whether direct, indirect, implied, or actual. This type of conduct is prohibited in all UCR buildings, facilities, rooms, spaces (indoor or outdoor) and at all locations where UCR business is conducted. [¶] . . . [¶] All Violent Behavior will be taken seriously and reported, and will not be dismissed as 'idle threats,' 'blowing off steam,' or 'a joke.' All Violent Behavior will be reported immediately to the next-in-line supervisor or academic administrator who is not a party to the alleged violation, or to a Violence Prevention Team Member." "Violent Behavior," includes, but is not limited to, "Threat: Any physical, written or verbal conduct, whether direct, indirect, implied or conditional that conveys intent, or is reasonably perceived to convey intent, to cause physical harm, or to cause someone to fear for his or her safety or for that of others."
Doe maintains the University failed to prove by clear and convincing evidence that her conduct conveyed intent to harm or was reasonably perceived to convey such intent. For all the reasons we have discussed, there is no merit to this contention. The administrative record contains ample evidence supporting findings, made on the basis of clear and convincing evidence, that Doe "conveyed" a threat or, at the very least, "was reasonably perceived to convey" such a threat.
Doe complains Chancellor Wilcox credited only Vice Provost Andersen's testimony that Doe said" 'I'm going to kill them, and then kill myself,'" and disregarded Associate Vice Chancellor Boyce's and Dean Uhrich's supposedly less definitive testimony. Doe claims this is evidenced by Wilcox's statement in his written decision that her actionable utterance was that she was going to "kill them" and then "herself." As we have discussed, this ignores the balance of Chancellor Wilcox's discussion showing he did not endorse any single recollection of the exact words Doe used, but rather concluded "all three 'witnesses' to the statement . . . specifically and consistently recollected in contemporaneous writings and in testimony during the hearing that [Doe] threated to 'kill them.' "
Doe further complains the University "failed to prove that any intent was reasonably perceived because the individuals who were in the room when the words were uttered did not believe there was any intent." Again, as we have discussed, the administrative record contained ample evidence that Vice Provost Andersen, Associate Vice Chancellor Boyce, and Dean Uhrich took Doe's threat seriously.
The Disciplinary Sanction
" 'The propriety of a sanction imposed by an administrative agency is a matter resting in the sound discretion of that agency, and that decision will not be overturned absent an abuse of discretion. [Citations.] "Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed." [Citations.] This rule is based on the rationale that "the courts should pay great deference to the expertise of the administrative agency in determining the appropriate penalty to be imposed."' [Citation.] 'Moreover, "[i]t is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown."' (Doe v. Regents [of the University of California (2016)] 5 Cal.App.5th [1055,] 1106.)" (O'Brien, supra, 92 Cal.App.5th at pp. 1129-1130.)
Faculty code of conduct APM-016 spells out six "types of discipline that may be imposed on a member of the faculty." These include, "in order of increasing severity: written censure, reduction in salary, demotion, suspension, denial or curtailment of emeritus status, and dismissal from the employ of the University." "The severity and type of discipline for a particular offense must be appropriately related to the nature and circumstances of the case." The "[a]uthority for the suspension of a faculty member rests with the Chancellor and may not be redelegated.
"Prior to the imposition of any disciplinary sanction(s) . . ., the Chancellor may waive or limit any or all disciplinary sanction(s) on the condition that the accused faculty member performs some specified action(s) designated to address the harm and/or to prevent future harm....[¶] If the imposition of a disciplinary sanction is waived, the subsequent failure to perform the required act or otherwise comply with the conditions of the waiver will immediately subject the faculty member to the implementation of the underlying sanction without an additional hearing. The authority to determine whether the faculty member has complied with the conditions of the waiver rests with the Chancellor."
The privilege and tenure committee recommended a six-month suspension without pay. In considering this recommendation, Chancellor Wilcox commented "none of the six available sanctions under APM 016 II . . . is perfectly designed to address the crux of [his] concern as to the best means to truly address the harm and/or prevent future harm. However, given the egregious nature of Professor Jane Doe's death threat, which conflicts not only with the Faculty Code of Conduct, but also values of collegiality and civility that the University . . . hold dear," Wilcox concurred with the committee's recommendation regarding the six-month suspension.
As he was authorized to do, Wilcox went on to offer Doe the opportunity to participate in a nine-month coaching program, "designed to assist [her] in collegial communications with her colleagues and in exploring more healthful mechanisms to deal with conflict." Doe chose the coaching program, and Wilcox deferred imposition of the suspension pending her successful completion of the program. However, Doe's participation in the program was unsatisfactory, and Wilcox subsequently terminated her participation and imposed a reduced suspension to account for the months Doe had been in the program.
Doe states she "is not challenging the type of discipline but the fact that a sanction was imposed when Doe did not violate any policies and there was no substantial evidence to support the University's findings to the contrary." However, as we have discussed, the University's findings were supported by substantial evidence.
Despite her assertion that she is not challenging the "type" of discipline imposed, Doe goes on to complain that requiring her to participate in "sham counseling sessions," with a "person who is not trained as a counselor," was "an arbitrary abuse of discretion." To begin with, Doe was not required to participate in the coaching program, instead she chose to do so to avoid an immediate suspension. Furthermore, there was nothing "sham" about the University's effort. The UC faculty member selected to "coach" Doe had the aid of a resource team and discretion to "expand her resource team to include other professional resources. Doe's coach also consulted with two appointed advisors "trained in conflict management and communication," and debriefed with those advisors following each of the 11 sessions Doe completed to "develop[] an agenda for the next session." In sum, there was nothing "arbitrary or capricious" about offering this assistance to Doe.
Doe further complains that, on failing in the supposedly "sham" program, Chancellor Wilcox imposed the deferred suspension but shortened it to four months (thus crediting her even for her failing efforts). She maintains the four-month suspension was excessive, arbitrary, and capricious. This assertion is meritless. While Doe may feel a lesser sanction was appropriate, the sanction imposed was well within the Chancellor's discretion under the controlling University provisions.
As Wilcox explained, he was disturbed by the "egregious nature of Professor Doe's death threat." He was also "troubled that [Doe] continues to believe that such conduct (uttering a death threat against colleagues) is not prohibited by the Faculty Code of Conduct, as long as it is not communicated within earshot," or that such threats were "okay if not 'imminent' or 'logical' or 'credible.'" This behavior showed Doe continued "to exhibit a propensity to make future threats of harm or to harass her colleagues." He had "profound concern that unless disciplinary or other affirmative actions are taken to give [Doe] the tools she needs to change course, she will continue to make" such statements, which "could continue to cause a hostile work environment to her peers," which was especially concerning to Wilcox given Doe's "status as a Distinguished Professor, which is the highest level of intellectual and service merit for faculty members." Under the circumstances, and in light of the concerns expressed by Chancellor Wilcox, we cannot say that a four-month suspension is arbitrary or capricious.
Finally, Doe suggests the four-month suspension violated the excessive fines clause of the Eighth Amendment. (United States v. Bajakajian (1998) 524 U.S. 321, 334, superseded on other grounds as stated in United States v. Jose (1st Circ. P.R. 2007) 499 F.3d 105, 110.) However, she cites no authority that a suspension without pay is tantamount to a fine "directly imposed by, and payable to, the government." (See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989) 492 U.S. 257, 268; Bajakajian, supra, 524 U.S. at p. 328 [the constitutional prohibition against excessive fines" 'limits the government's power to extract payments, whether in cash or in kind, "as punishment for some offense"' "].) In any case, "the touchstone" of an inquiry under the excessive fines clause is proportionality (Bajakajian, at p. 334), in that the amount of the fine imposed "must bear some relationship to the gravity of the offense that it is designed to punish." (Ibid.) For all the reasons we have discussed, the four-month suspension was fairly proportional to Doe's conduct.
The California Constitution contains a similar protection. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
In her appellant's closing brief, Doe belatedly argued the University is a constitutionally established state agency and therefore the "discipline imposed upon [her] was a forfeiture of her salary" and thus a fine. We generally will not consider arguments advanced for the first time in a reply brief and decline to do so here. (See United Grand Corp., supra, 36 Cal.App.5th at p. 158; Starr v. Mayhew (2022) 83 Cal.App.5th 842, 854 ["' "arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party"' "].)
Disposition
The judgment is AFFIRMED. Respondent to recover costs on appeal.
We concur: Humes, P.J. Bowen, J. [*]
[*]Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.