Opinion
E071521
11-18-2019
JOHN DOE, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant. Munger, Tolles & Olson, Hailyn J. Chen, Katherine G. Incantalupo; University of California Office of the General Counsel, Charles F. Robinson, Margaret Wu and Donald P. Margolis for Defendant and Respondent.
ORDER MODIFYING OPINION; AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
The petition for rehearing filed by appellant on December 3, 2019, is denied. The opinion filed in this matter on November 18, 2019, is modified as follows:
The "DISCUSSION" section, subsection "D. PPSM-70," will begin with the following paragraph:
In Doe's opposition to the demurrer, Doe asserted, "All that remains at UCR is the PPSM-70 administrative process, which excludes review of the Title IX investigation decision." Accordingly, we examine the PPSM-70 process because Doe concedes that process is incomplete.
The previous first paragraph in the subsection, which starts "PPSM-70 reflects a two- or three-step process depending upon an employee's job classification" will now be the second paragraph in subsection "D."
The "DISCUSSION" section, subsection "E. TWO SEPARATE POLICIES," is deleted and replaced with the following:
E. TWO SEPARATE POLICIES
Doe contends the trial court erred because the investigation and report process is part of the sexual violence and sexual harassment policy, which is separate from the PPSM-70 process. Doe asserts that because two separate policies are at issue, there are two separate processes at issue. Doe asserts the first process, i.e., the investigation and report, was complete.
The sexual violence and sexual harassment policy includes a section titled "Procedures." The sexual violence and sexual harassment policy's procedures begin with (1) a report of the alleged prohibited conduct, and (2) and initial assessment of the report. If the process continues forward, there are different "resolution processes." One resolution process is alternative dispute resolution, which would be initiated by the Title IX officer. A second resolution process is a formal investigation, which would be initiated by the Title IX officer. If a formal investigation is conducted, then the next step in the process is the issuance of a written report. If the report sets forth a finding that prohibited conduct occurred, then the remedy process is triggered. In the remedy process, "the University shall take prompt and effective steps reasonably calculated to stop the violation, prevent its recurrence, and, as appropriate, remedy its effects." The next step in the process is the discipline step. In the discipline step, an offender may be dismissed from the University.
In Doe's petition for writ of mandate, he alleged the report, initial assessment, formal investigation, and written report stages of the process were complete. Doe did not allege that the remedy and discipline stages of the process had finished. Because Doe did not allege that the procedure set forth in the sexual violence and sexual harassment policy had ended, he has not sufficiently alleged that he exhausted his administrative remedies under the first of the two policies. In other words, assuming there are two separate procedures because there are two separate policies, Doe did not establish that the procedures in the first policy were complete, and therefore, we are not persuaded that the trial court erred.
Except for these modifications, the opinion remains unchanged. The modifications do not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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. RIC1802988) OPINION APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed. Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant. Munger, Tolles & Olson, Hailyn J. Chen, Katherine G. Incantalupo; University of California Office of the General Counsel, Charles F. Robinson, Margaret Wu and Donald P. Margolis for Defendant and Respondent.
John Doe (Doe) petitioned the trial court for a writ of mandate directing the Regents of the University of California (the Regents) to set aside a sexual harassment finding made against Doe. (Code Civ. Proc., § 1094.5.) The Regents demurred on the basis that Doe failed to exhaust his administrative remedies. The trial court sustained the demurrer without leave to amend. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. AMENDED WRIT PETITION
The facts in this subsection are taken from Doe's amended writ petition. Doe was an assistant track and field coach at the University of California, Riverside (UCR). Doe had a one-year employment contract starting on July 1, 2016. Doe has 40 years of experience in college athletics. Jane Roe (Roe) was an undergraduate student at UCR and a member of its track and field team.
On May 31, 2017, Roe complained to a UCR athletic trainer that Doe sexually harassed her by "making sexual jokes, making comments about her breast size and buttocks, comparing her body to other women, and [he] pulled her spandex shorts to see if she was wearing underwear, and [¶] [w]ithout the consent of [Roe], [Doe] touched her intimate body part (buttocks) constituting sexual assault."
On June 5, 2017, Doe received a letter from UCR's Title IX Officer and Director (the Title IX Officer) reflecting UCR was investigating Roe's complaint. The letter reflected an investigator would be assigned to the case to gather evidence. On June 9, the investigator interviewed Roe. Between June 9 and 16, the investigator interviewed 14 UCR student athletes. On June 14, the investigator and Doe scheduled an interview for June 22. Doe's interview did not take place because the investigator took an unexpected leave of absence.
On June 21, Doe requested the Title IX Officer provide Doe with a copy of the complaint filed against him; the statements, transcripts, or recordings of the interviewees; and any documentary evidence gathered in the investigation. The Title IX Officer denied Doe's requests. Doe requested that any interviews be audio recorded, and UCR denied that request.
On July 6, a new investigator was assigned to the case. On August 17, Doe again requested to see the evidence gathered in the investigation. UCR denied Doe's request. In August 2017, the new investigator interviewed several employees of the UCR Athletics Department. On September 14, UCR provided Doe with "edited, paraphrased witness summaries and other investigation documents." The documents were provided via a website that "prevents [Doe] from printing or downloading documents, and only allows for documents to be viewed on screen one page at a time."
On October 10 and 13, Doe was interviewed by the new investigator. On October 23, UCR provided 169 pages of "witness summaries and other investigation documents" via the website that limited printing and downloading. UCR gave Doe three days to file a response to the materials. Doe filed his response on October 26.
On November 13, the new investigator issued a "Report of Investigation" (the report) in which she wrote: "For the above stated reasons, we conclude that the preponderance of the evidence SUBSTANTIATES that [Doe] violated the 2016 SVSH Policy in that he engaged in prohibited conduct related to Sexual Assault-Contact by repeatedly touching [Roe's] buttocks, and Sexual Harassment by pulling at her clothing and once looking at her lower body; and by repeated sexual comments, jokes and teasing, and by his actions surrounding her Instagram posts."
In the writ petition, Doe alleged that the new investigator lacked "formal training to serve as an impartial adjudicator." Doe further alleged that the new investigator's finding was contrary to the weight of the evidence and that she assessed the credibility of interviewees who she had not met. Doe complained that he was not given an opportunity to respond to the new investigator's opinions set forth in the report. Doe complained that he was denied an opportunity to question Roe. Doe complained that the report included "findings of violation of policy that were not disclosed in the Notice of Investigation."
Doe alleged, "UCR failed to provide the opportunity for a prompt and fair hearing where [UCR] shall bear the burden of proof, and at which the accused shall have the opportunity to present documents and witnesses and to confront and cross-examine witnesses presented by [UCR]."
On December 14, Doe filed an administrative appeal. The Title IX Officer indicated Doe could not appeal from the report. The Title IX Officer wrote, "For Title IX complaints involving UCR Staff Respondents, neither the Respondents nor Complainants, including students, may appeal the Title IX investigative findings and decision." Doe alleged he had exhausted his administrative remedies by attempting to appeal the findings made in the report.
B. DEMURRER
The Regents demurred to Doe's writ petition. The Regents asserted the investigator's report was step one in a three-step administrative process "set forth in the Sexual Violence and Sexual Harassment Investigation and Adjudication Framework for Staff and Non-Faculty Academic Personnel ('SVSH Staff Framework')." The three stages are: (1) "investigation and findings"; (2) "assessment and consultation"; and (3) "corrective action in accordance with applicable Personnel Policies for Staff Members."
In the first step, the Title IX investigator investigates the complaint and writes a report. The report includes " 'findings of fact and a determination regarding whether, applying the preponderance of the evidence standard, there is sufficient evidence to conclude that respondent violated the SVSH Policy.' [Citation.] Once the investigation report is completed, the Title IX Officer sends the report 'to the Chancellor's designee and the [respondent's] supervisor or other appropriate administrative authority' for their consideration. [Citation.] At that point, the Title IX office's direct involvement in the process ends.
"During Stage 2, the complainant and respondent have an opportunity to respond to the investigation report through a written statement submitted to the respondent's supervisor or other appropriate administrative authority and the Chancellor's designee. [Citation.] The respondent's supervisor has the responsibility to propose and implement action in response to the findings of the Title IX investigation report, taking into consideration the complainant's and respondent's written responses. [Citation.] Then, the proposed decision is 'reviewed and approved by the Chancellor's designee.' [Citation.]
"At Stage 3, the respondent's supervisor implements the approved decision in accordance with the applicable PPSM [(Personnel Policies for Staff Members)]. [Citation.] If corrective action, such as termination, is taken against the respondent, the respondent is entitled to request review of that disciplinary action pursuant to PPSM-70. [Citation.] It is not until the PPSM-70 review concludes that the administrative process is finally complete, and a final decision is rendered."
The Regents contended Doe was challenging the first step in the three-step process. The Regents asserted the three-step process had to be complete before Doe could seek judicial review. The Regents argued that Doe's writ petition was legally insufficient because the administrative process was incomplete.
C. OPPOSITION
Doe opposed the demurrer. Doe argued, "All three stages of the SVSH Staff Framework [citation] were completed when [Doe's supervisor] implemented the termination decision and communicated the decision to [Doe]. [¶] All that remains at UCR is the PPSM-70 administrative process, which excludes review of the Title IX investigation decision." Doe asserted the appeal of the termination decision only concerned a review of his supervisor's decision—not a review of the investigators' procedures. Doe asserted he properly pled exhaustion of his administrative remedies.
D. REPLY
The Regents replied to Doe's opposition. The Regents contended the investigator's decision "is part and parcel of the overall administrative process." The Regents asserted the PPSM-70 review process "does afford the opportunity for some review of the Title IX decision—albeit not the type of review that [Doe] would prefer. Through the PPSM-70 process, [Doe] has the opportunity to challenge the underlying factual findings of the Title IX investigation and report by presenting evidence to show that there was not good cause for his termination. [Citation.]"
E. HEARING
The trial court held a hearing on the Regents' demurrer. Doe asserted he had no means of challenging the investigators' procedures within the administrative review process. The trial court said the investigator's decision was "part of a multi-step process that ended in the ultimate administrative decision to terminate [Doe's] employment." Doe explained that he wanted to challenge the investigator's decision because it is the investigator's decision that "prevents [Doe] from obtaining employment" and "damages his reputation." Doe contended he had no means of challenging the investigator's decision within the administrative process and therefore he exhausted his administrative remedies. Doe explained that the PPSM-70 process could result in a reversal of his termination, but that would be despite the investigator's decision because even if his termination were reversed, the investigator's decision would remain.
The Regents argued that the investigator's decision "was just the first stage in a multi-step process." The Regents analogized the investigator's decision to a police report and concluded "it's not independently reviewable because it's part of the process." The Regents analogized the termination decision to "a sentencing decision which comes after viewing the underlying Title IX report, and the underlying Title IX report is not determinative. There's a lot of discretion in the process in the meantime." The Regents asserted the report could not damage Doe's reputation because it was confidential. The Regents explained that the public aspect was the decision of the Chancellor's designee.
Doe responded that in seeking employment at other institutions, the hurdle he faced was the investigator's finding—not the termination decision. Doe asserted he had no means to appeal the investigator's finding.
The trial court responded, "[T]hat is part of the PPSM-70 appeal." The trial court said, "[I]f . . . in the appeal of the termination they make a determination that we are not looking at the Title IX; it's a finding of fact. They already made that decision. We are standing by our termination. At that point in time you have a final administrative decision that's been appealed and that's gone through the administrative process, exhaustive of administrative remedies. [¶] [T]hen that would be properly before this Court to look at the entirety of the termination, what was allowed to be presented, what wasn't allowed to be presented, were due process rights violated. So that would be ripe for this Court to make a decision on. [¶] This Court is not precluding counsel from doing that in the future. It's just saying at this point in time it doesn't believe there's a final administrative decision made based upon the Title IX investigation is a final administrative decision [sic]."
Doe argued, "[T]he Court just made [my] point. The Court stated that in the PPSM-70 process they look at the termination. We are not going to look at the Title IX [decision]." The trial court asked, "Wouldn't that necessarily be part of a writ being filed on the PPSM-70 process, the appeal, the ultimate appeal of the termination?" Doe responded, "No[,] because all that addresses is whether or not the termination, there was good cause for the termination . . . . It can't challenge the impropriety of what was wrong with the Title IX process to begin with, how the University did not proceed in the manner prescribed by law."
Doe continued, "In a way[,] there's nothing wrong or objectionable to the termination decision, but it's all based upon the final decision that is final under the Title IX policy." Doe explained, "What happened in the PPSM-70 is they can't even correct the Title IX decision. They have no ability. It's outside the scope." Doe asserted that judicial review was the only process available to him. The trial court took the matter under submission.
F. ORDER
The trial court issued an order sustaining the demurrer. The trial court concluded, "The Title IX investigation and Final Report do not constitute a final administrative decision upon which a writ of administrative mandate may be issued. [Citation.] The Title IX investigation had no practical effect until the Regents/UCR acted upon the recommendation in the Final Report. Petitioner's opportunity to challenge the investigation and alleged lack of due process was presented by the PPSM-70."
DISCUSSION
A. CONTENTION
Doe contends the trial court erred by concluding he failed to exhaust his administrative remedies.
B. STANDARD OF REVIEW
"On appeal from a dismissal entered after an order sustaining a demurrer to a petition for writ of mandate, we review the order de novo, determining independently whether the petition states a cause of action as a matter of law. [Citation.] We give the petition a reasonable interpretation, reading it as a whole and viewing its parts in context. We deem to be true all material facts that were properly pled, as well as all facts that may be inferred from those expressly alleged. [Citation.] . . . If the facts alleged by the petitioner state a cause of action under any possible legal theory, we will order the demurrer overruled." (Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 277-278.)
C. LAW
"[T]he rule of exhaustion of administrative remedies is well established in California jurisprudence . . . . 'In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.' . . . The exhaustion rule extends to employees seeking judicial review of an employer's administrative findings. [Citation.] [¶] The rule has important benefits: (1) it serves the salutary function of mitigating damages; (2) it recognizes the quasi-judicial tribunal's expertise; and (3) it promotes judicial economy by unearthing the relevant evidence and by providing a record should there be a review of the case." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321-322.)
D. PPSM-70
PPSM-70 reflects a two- or three-step process depending upon an employee's job classification. Step one consists of the investigation and report. Step two permits the employee to "submit a written appeal to Administrative Review." In the appeal, the employee "must state which claims alleged in the complaint were not resolved at Step I and specify the remedy requested." In the alternative, if the University agrees, then a career employee may skip the second step and "proceed directly to Step III for factfinding." Step three of the process is available only to career employees.
Doe's job classification is unclear. The compensation section within Doe's employment contract, provides, "[Doe] is assigned to title code 5046 which is in the Professional support Staff group in the PPSM Program." That sentence would indicate that Doe was classified as professional support staff. However, in the policy section of Doe's employment contract, it reflects that for purposes of PPSM-70, Doe is in the "Managers and Senior Professional employees" group. Also within the policy section of the contract, for purposes of applying PPSM-65, Doe is in the "Career Employees" group. Because Doe is not designated as a career employee for purposes of PPSM-70, we will conclude that the career employee sections of PPSM-70 do not apply to him.
Because Doe is not a career employee, the PPSM-70 administrative procedure applicable to him involves two steps: (1) the investigation and report; and (2) an administrative appeal wherein "the employee must state which claims alleged in the complaint were not resolved at Step I."
The foregoing quote is from the "Managers & Senior Professionals" section of PPSM-70. It appears the word "satisfactorily" is missing from the sentence. In the "Professional & Support Staff section of PPSM-70, there is a sentence that reads, "[T]he employee must state which claims alleged in the complaint were not satisfactorily resolved at Step I."
There is nothing in the description of the administrative appeal process that limits the type of issues that Doe may raise in his administrative appeal. For example, Doe might argue in his administrative appeal that the claims were not resolved in the investigation and report phase (step one) because (1) the findings did not match the noticed allegations; (2) the Regents failed to retain verbatim transcripts; (3) the investigator was not a trained adjudicator; and (4) Doe was not afforded an opportunity to confront witnesses against him. In other words, Doe could raise his due process concerns in the administrative appeal (step two).
We express no opinion as to whether such claims would succeed.
Because Doe has an opportunity in the administrative appeal to raise his due process concerns, he cannot seek judicial review of the investigation and report (step one) until the administrative appeal (step two) is complete. In the trial court, in Doe's petition, he alleged that he filed an administrative appeal pursuant to PPSM-70. Doe did not allege that his administrative appeal was complete. Because Doe did not allege that his administrative appeal was complete, the trial court did not err by sustaining the demurrer.
E. TWO SEPARATE POLICIES
Doe contends the trial court erred because the investigation and report process is part of the sexual violence and sexual harassment policy, which is separate from the PPSM-70 process. Doe asserts that because two separate policies are at issue, there are two separate processes at issue. Doe asserts the first process, i.e., the investigation and report, was complete.
Doe's argument is unpersuasive because PPSM-70 incorporates the sexual violence and sexual harassment policy for purposes of step one of the PPSM-70 two-step process. PPSM-70 provides, "Any complaint filed under this policy regarding sexual violence or sexual harassment will be referred to the local Title IX Office for processing under the Policy on Sexual Violence and Sexual Harassment . The review conducted under that policy will serve as Step I under this policy. After that process has concluded, the employee may submit a written appeal to Step II under this policy if there are sexual violence or sexual harassment claims that were not resolved to the employee's satisfaction." The sexual violence and sexual harassment review process includes an investigation and report.
In sum, Doe's assertion that there are two separate policies and thus two separate processes is not persuasive because the two policies create one process. The investigation and report process of the sexual violence and sexual harassment policy is explicitly incorporated into step one of the two-step PPSM-70 process. Because there is only one process, we are not persuaded that the investigation and report constituted a completed administrative process for purposes of exhaustion of administrative remedies.
At oral argument in this court, the Regents asserted the sexual violence and sexual harassment policy/Title IX investigation and report do not stand in place of the PPSM-70 step one process. The Regents asserted that the language this court relied upon in concluding that the Title IX investigation and report constitute step one of the PPSM-70 process is meant to apply when "the employee alleges that she or he experienced sexual assault or sexual harassment." However, the Regents also asserted, "You cannot deny that there is a relationship between the SVSH policy and the PPSM-70 process."
The language we rely upon, which is quoted ante, begins, "Any complaint filed under this policy regarding sexual violence or sexual harassment will be referred to the local Title IX Office for processing under the Policy on Sexual Violence and Sexual Harassment . The review conducted under that policy will serve as Step I under this policy." We focus on the words "Any complaint" The Regents failed to explain why "Any complaint" should read as applying only when an employee alleges s/he was the victim of a sexual assault or sexual harassment. Because it is unclear why "Any complaint" should be read so narrowly, we find the Regents' assertion to be unpersuasive.
F. SEXUAL VIOLENCE AND SEXUAL HARASSMENT STAFF FRAMEWORK
Doe asserts the trial court erred because he is not subject to the "Sexual Violence And Sexual Harassment Staff Framework" (SVSH Staff Framework), which is the three-step procedural process upon which the Regents relied in demurring to Doe's petition.
The SVSH Staff Framework provides, "[T]he following describes the University's process for investigating and adjudicating alleged violations of the SVSH Policy in instances where the respondent is either a University employee whose conduct is governed by Personnel Policies for Staff Members ('PPSMs'), and who is subject to disciplinary and termination procedures set forth in PPSM 62 (Corrective Action—Professional and Support Staff) and PPSM 64 (Termination and Job Abandonment) or a non-faculty academic appointee who is subject to disciplinary procedures under the Academic Personnel Manual ('APM'), APM-150 (Non-Senate Academic Appointees/Corrective Action and Dismissal)."
Doe's employment contract reflects he is subject to some, but not all, of the PPSMs. PPSM-62 and PPSM-64 are not on the list of applicable PPSMs in Doe's contract. Therefore, Doe is not an employee who is subject to PPSM-62 and PPSM-64. There is also nothing indicating that Doe is a non-faculty academic appointee. As a result, we conclude that Doe is not subject to the SVSH Staff Framework.
The inapplicability of the SVSH Staff Framework does not result in a reversal. Doe is correct that the SVSH Staff Framework does not apply to him; however, he has not demonstrated that he was prejudiced by the Regents' reliance on the SVSH Staff Framework. (Code Civ. Proc., § 475.) As explained ante, under the two-step process of PPSM-70, which is applicable per the terms of Doe's employment contract, Doe failed to allege exhaustion of his administrative remedies because he did not allege that his administrative appeal is complete. Because Doe did not allege exhaustion of his administrative remedies pursuant to PPSM-70, we conclude it is not reasonably probable a more favorable result to Doe would have occurred absent the error. (Code Civ. Proc., § 475 ["that a different result would have been probable if such error . . . had not occurred"].)
The Regents contend Doe is subject to the SVSH Staff Framework because the sexual violence and sexual harassment policy provides, "The Sexual Violence and Sexual Harassment Staff and Non-Faculty Academic Adjudication Framework sets forth the University's procedures for resolving complaints where the respondent is University personnel other than faculty." The Regents contend Doe is "University personnel other than faculty" and therefore the SVSH Staff Framework applies to Doe.
There are two versions of the sexual violence and sexual harassment policy in the record. The first version of the policy was updated on November 7, 2016, and is 22 pages long. The second version of the policy was updated on September 1, 2017, and is 25 pages long. The language quoted by the Regents is included in the second version of the policy, but it is not included in the first version of the policy.
In Doe's petition, he alleges Roe made her complaint to UCR on May 31, 2017. The Regents fail to explain why the September 1, 2017, version of the policy should be retroactively applied to Doe's alleged pre-May 31 conduct. (See Silas v. Arden (2012) 213 Cal.App.4th 75, 88 ["statutes operate prospectively"].) Due to the Regents' failure to explain why the September 1, 2017, policy should be retroactively applied, we do not rely on the September 1, 2017, version of the policy. Instead, we rely on the harassment policy that is dated November 7, 2016. The November 7, 2016 version of the policy does not include the language cited by the Regents. Therefore, we find the Regents' contention to be unpersuasive.
G. JURISDICTION
Doe contends this court should apply the jurisdiction exception to the rule requiring exhaustion of administrative remedies.
The Regents contend Doe forfeited this contention by failing to raise it in the trial court. " 'An appellate court may . . . consider new theories on appeal from the sustaining of a demurrer to challenge or justify the ruling. As a general rule a party is not permitted to change its position on appeal and raise new issues not presented in the trial court. [Citation.] This is particularly true "when the new theory depends on controverted factual questions whose relevance thereto was not made to appear" in the trial court. [Citation.] However, "a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts." [Citation.] A demurrer is directed to the face of a complaint [citation] and it raises only questions of law [citation]. Thus an appellant challenging the sustaining of a general demurrer may change his or her theory on appeal [citation], and an appellate court can affirm or reverse the ruling on new grounds." (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1396-1397.) Although Doe did not raise this issue below, we will address the merits of the issue because we are reviewing the sustaining of a demurrer.
"[T]he administrative remedies exhaustion rule has several exceptions, including, but not limited to . . . when the subject of controversy lies outside the agency's jurisdiction." (Campbell, supra, 35 Cal.4th at p. 322.) "Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, provides an example of the exception an agency's lack of jurisdiction creates. In Tiernan, a temporary academic employee's term was not renewed. In her grievance she alleged that the law required her employer to adopt regulations governing notice of nonreappointment. The court found that the plaintiff's claim fell within the jurisdictional exception because it required the grievance committee to determine whether the university had to adopt regulations or interpret established regulations." (Id. at p. 323.)
Doe contends the Regents lack jurisdiction because the administrative appeal (step two) does not permit review of the investigation and report (step one). In regard to the administrative appeal, PPSM-70 provides, "The appeal must state which claims alleged in the complaint were not resolved at Step I and specify the remedy requested." There is nothing indicating that, in his administrative appeal, Doe cannot raise issues concerning the investigation and report. It appears that the entire step-one process is open for review in step two. Accordingly, we are not persuaded that the Regents lack jurisdiction to review the investigation and report (step one).
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.