Opinion
A150255
04-24-2018
ARTHUR JOHNSON, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CPF14513983)
Appellant Arthur Johnson was terminated from the University of California San Francisco (UCSF) based on his sexual harassment of a coworker. He appeals from a superior court judgment denying his petition for writ of administrative mandate against the Regents of the University of California (University), by which he challenged his termination. Appellant contends the evidence at the administrative level was insufficient to support a finding he committed sexual harassment in violation of the University's policy. He additionally argues the University abused its discretion by dismissing him rather than employing progressive discipline procedures. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. UCSF's Sexual Harassment Policy
UCSF is a 600-bed research and teaching hospital that is part of the University system. Its written policy prohibiting sexual harassment defines such harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly affects a person's employment or education, unreasonably interferes with a person's work or educational performance, or creates an intimidating, hostile or offensive working or learning environment. . . . [¶] . . . . [¶] In determining whether the reported conduct constitutes sexual harassment, consideration shall be given to the record of the conduct as a whole and to the totality of the circumstances, including the context in which the conduct occurred."
The policy also prohibits gender-based harassment that is not specifically sexual: "Harassment that is not sexual in nature but is based on gender, sex-stereotyping, or sexual orientation also is prohibited by the University's nondiscrimination policies [] if it is sufficiently severe to deny or limit a person's ability to participate in or benefit from University educational programs, employment, or services. While discrimination based on these factors may be distinguished from sexual harassment, these types of discrimination may contribute to the creation of a hostile work or academic environment. Thus, in determining whether a hostile environment due to sexual harassment exists, the University may take into account acts of discrimination based on gender, sex-stereotyping, or sexual orientation."
Under the policy, "Any member of the University community who is found to have engaged in sexual harassment is subject to disciplinary action up to and including dismissal . . . . Generally, disciplinary action will be recommended when the harassing conduct is sufficiently severe, persistent, or pervasive that it alters the conditions of employment . . . ."
B. Course of Conduct Leading to Complaint
S.M. has worked as a clinical nurse at UCSF's Benioff Children's Hospital since 1992 and was one of the senior nurses caring for critically ill infants at the times relevant to this case. Appellant was hired as a laboratory technician (Clinical Lab Scientist) in 1998, and was responsible for testing blood gas instrumentation, processing blood gas samples, calibrating CO2 monitors, and performing transcutaneous monitoring of oxygen and CO2 levels in patients. Appellant was one of the laboratory technicians responsible for calibrating the machinery and probes for S.M.'s patients, which required him to work in close proximity to her.
S.M. was polite to appellant, but did not consider him a friend and never led him to believe they could have anything other than a professional relationship. Nonetheless, appellant would take about twice as long to perform the calibrations on S.M.'s patients as he took when performing calibrations for the other nurses. S.M. noticed that appellant would "linger" at her patients' bedsides in her presence for the duration of the calibration process, in contrast to other laboratory technicians who would leave at the beginning of the process so they could accomplish other tasks and then return when the calibration was finished. If S.M. was talking to another person at the hospital, appellant would attempt to interject himself into the conversation. He would come into the hospital bay where she was working to perform the three-minute surgical scrub required before a staff member could touch one of the critically ill patients, even when he was not working in that area. S.M. began to notice appellant "staring" and "leering" at her in ways that made her uncomfortable, a phenomenon that was also noticed by other UCSF employees. This gave her a "creepy, odd feeling." Appellant would often appear in the break room to eat lunch or just sit down next to S.M., even though her breaks were not regularly scheduled due to her patient care responsibilities.
In 2009, S.M. received a coffee gift card with a note from appellant in her office mailbox. She gave the card away and discarded the note without acknowledging it. Over the holidays, appellant gave S.M. a Netflix gift certificate and a Christmas card. S.M. didn't respond and threw the gift card away, thinking appellant would get the hint she was not interested. Shortly after, appellant sent S.M. an email asking if she would like to meet him for a meal or coffee and S.M. again did not respond. He approached her in person to ask her out on a date for the second time and S.M. told him she had a boyfriend, was not interested in going out, and did not have those kinds of feelings for him.
After their conversation in which she declined his invitation for a date, S.M. thought appellant understood she was not interested in him. But he continued to leer and stare at her, sometimes in a "longing" manner. One coworker described him as staring at her in a "lascivious" manner, as though she was an object. S.M. confided in some of her coworkers about the unwanted attention, but several told her appellant was "creepy" but "harmless." S.M. did not think appellant was harmless because she had seen him "snap" at coworkers at the hospital, but against her better judgment, she did not report the situation to management.
Appellant began using his control over scheduling to work with S.M.'s patients on a more-than-random basis so he could be close to her, a practice that was noticed by others and commented upon by hospital staff. Paul Gardner worked in the neonatal physiology lab and was a friend of S.M.'s. After hearing about the scheduling issue, he took it upon himself to review the shift assignments and determined that appellant was assigning himself almost exclusively to S.M.'s patients. Concerned about how appellant's actions might reflect on the lab, he emailed appellant on May 3, 2010 and expressed concern that appellant was routinely assigning himself to S.M.'s patients and was becoming known around the lab as "[S.M.]'s stalker." The email urged appellant to discontinue his behavior, warned him he could be opening himself up to a charge of harassment by S.M., and suggested that he rotate the shift assignments more randomly without avoiding her altogether, which would highlight the situation. Gardner blind copied appellant's supervisor, Gene Qin, and later spoke to Qin about the situation, telling him he did not believe the scheduling issue had crossed a line where Qin's involvement was required. S.M. did not know Gardner had sent the email to appellant.
On May 22, 2010, appellant forwarded a copy of Gardner's email to S.M. and apologized for any embarrassment he might have caused her. He explained, "My coworkers in the blood gas lab tend to have a favorite place to work with the babies in the ICN; I know now that I need to place less emphasis on their preferences and be more fair when dividing the work assignments." Appellant later sent S.M. a handwritten note saying, "I'm sorry I made you uncomfortable. I didn't realize I was doing that. I'm sorry I wrote you that stupid note. I know we were friends at one point. I would be happy to be friends (not just colleagues or "work" friends) again." S.M. did not respond to these communications and tried to avoid appellant.
On July 3, 2010, despite having already communicated with S.M. about Gardner's email, appellant sent S.M. another handwritten note with a printout of the email. "I'm writing you this note because of an email I got from Paul a few months ago. I am including this email because it's something you should know if you don't already. One interpretation (of many) is that my coworkers have found a unique way of complaining about their TCO2 assignments. However, if there is any truth to the email, I owe you a very large apology. I felt absolutely sick inside when I read it. If I made you feel uncomfortable in any way I am sorry; this was absolutely never my intention. In the 14 years I've been at UC, I haven't made very many friends. I respect you as a good friend and coworker, I trust you as a good friend and coworker. If I embarrassed you in any way, I certainly never intended to. It is only fair that I make the board assignments so that coworkers have a chance to work all sides of the unit equally. This in no way changes the feelings I have generated for you over the years, and I won't allow it to."
Appellant learned that a coworker, Linda Gribben, had moved into the same condominium complex as S.M., and he began pressing her for information about the complex. He told her he wanted to live there, and Gribben, who knew about the situation with S.M., tried to discourage him, telling him it was inappropriate, there were many other complexes in the city, and he should consider other neighborhoods. Over the next six months, appellant told his coworkers he wanted to live in the complex "where [S.M.] lives." When S.M. learned that appellant was trying to move to her complex, she became extremely upset and asked Gribben not to discuss her living arrangements with appellant.
S.M. learned that appellant had put in a bid on a unit in her complex and became "hysterical." Although there were approximately 200 units in the complex, her unit was at the end of a cul-de-sac and the thought appellant could monitor her comings and goings and see her in a bathing suit at the community pool made her feel exposed and vulnerable. S.M. found appellant in the hospital and angrily confronted him about his plans to move to her complex, screaming at him to leave her alone. She told him she was not interested in him, never would be, and had never given him any signals to suggest otherwise. She told appellant he was not welcome at her complex and if he did not discontinue his pursuit of her, she would get a restraining order. Appellant looked down and muttered, "Okay, okay," and walked away.
S.M. tried to avoid appellant after the confrontation, taking breaks at unusual times and working in areas of the hospital where he did not usually work. Appellant continued to appear wherever she went and assigned himself to her patients. Appellant sought out Gribben and Christine Shannon, a friend of S.M.'s who worked at the hospital, and told them it was a big "misunderstanding" and he wanted to speak with S.M. to straighten things out. He asked Gribben to give S.M. his phone number so she could call him and they could work things out. Gribben refused and told appellant S.M. wanted nothing to do with him. Appellant also spoke to Donna Wagner, another friend of S.M.'s, and asked if she would relay a message to S.M. for him. Wagner refused, telling him, "[W]hat don't you get about I don't want to see you, I don't want to talk to you? You've made [S.M.] afraid of you. She's scared of you. She is feeling really beleaguered by you."
Appellant learned that S.M. was planning a trip to Turkey and emailed her to say they should get together when she returned to look at her pictures together. S.M. did not respond. Appellant told Christine Shannon he intended to take S.M. on a cruise, because she was very special to him. Due to the stress resulting from appellant's attention, S.M. developed shingles. She wasn't sleeping well, which affected her ability to provide high-quality care for her patients. "It's a high stress environment. We take care of critically ill patients day in and day out. Having somebody follow you around everywhere you go, stare at you, try to move in next door to you, when you're trying to take care of a sick patient, doesn't work." S.M.'s friends took to walking her to her car at night, and she avoided public places outside work where she might run into appellant, such as the Stonestown Mall. S.M. took a medical leave in late 2010 and did not return until March 2011.
Upon her return from medical leave, S.M. learned that appellant was moving into escrow on a unit at her condominium complex. She became distraught and started hyperventilating and shaking uncontrollably. The next day she asked Gribben to intercede with appellant and on her behalf, and Gribben told appellant he should leave S.M. alone because he was scaring her. S.M. filed a complaint of harassment with her supervisor, Michelle Cathcart, on May 11, 2011.
C. Harassment Complaint and Investigation
Cathcart immediately initiated a formal complaint of sexual harassment and referred the matter to Kathryn Chan, the Labor and Employee Relations representative for UCSF. Chan contacted Mercedes de Souza in UCSF's sexual harassment office, and she immediately began to investigate the complaint. Appellant was placed on investigative leave.
During her investigation, de Souza interviewed S.M. in person and obtained a written statement from her detailing her concerns. She also interviewed appellant in the presence of Chan, his supervisor Qin, and Susan Huberty, the manager of the Clinical Lab-Hematology. Appellant indicated that he had only asked S.M. out on a date once and had accepted no as an answer the first time; when asked how many times she had told him she was not interested, he said twice, and was evasive when asked why she would have told him twice when he only asked her once. Appellant initially denied sending S.M. any cards, notes or invitations, and said he could not remember sending her any emails, but he later acknowledged sending her cards. He denied staring at her, staying at her station longer than necessary, scrubbing up next to her, or assigning himself to her on more than a random basis. He denied zeroing in on her condominium complex as a place to live and claimed to have been looking at real estate all over San Francisco.
De Souza interviewed several of S.M.'s coworkers: Paul Gardner, Christine Shannon, Donna Wagner, Linda Gibbons, Monica Amador and Fariba Alazzeh. All of them detailed the ways in which appellant paid undue attention to S.M. despite having been warned against it, and indicated that it caused S.M. great distress. Gene Qin told de Souza he did not see the blind copy of the email sent by Gardner to appellant regarding appellant's disproportionate assignments to S.M.'s patients, but Garner had spoken to him about the situation and had told him that he (Qin) did not need to do anything at that time. Qin heard that appellant had once asked S.M. out on a date. Fariba Alazzeh had told Qin that S.M. got extremely upset about appellant's efforts to buy a condominium in her complex, but she promised to talk to them both and Qin thought the situation was "not too serious."
On June 9, 2011, de Souza prepared a written report concluding appellant had engaged in unwelcome behavior that created a hostile work environment for S.M. and had violated the University's policy against sexual harassment. She found appellant's own credibility to be questionable, given that his version of events was contrary to the other witnesses' accounts and the documentary evidence (emails, letters, cards).
D. Termination and Administrative Review
After de Souza completed her investigation, Huberty and Qin met to discuss the appropriate level of discipline. They determined that given the totality of the circumstances, which included appellant's leering, scheduling, notes, emails and efforts to locate a condominium in S.M.'s neighborhood, termination was appropriate. Huberty and Qin found it significant that appellant's unwelcome actions had occurred over a two-year period and had persisted even when he had been told to stop. They were also influenced by appellant's failure to accept responsibility during the course of the investigatory interview. Huberty and Qin discussed the decision with Kathryn Chan and the Lab Director.
On July 22, 2011, UCSF issued a notice of intent to dismiss appellant, effective August 5, 2011, due to his inappropriate behavior toward a female employee in violation of the policy on sexual harassment. A "Skelly" hearing was conducted on March 5, 2012, at which appellant was assisted by a union representative. At that hearing, appellant did not refute the information provided by S.M. and the other witnesses, but presented evidence that he had been suffering from depression and was now under the care of a psychiatrist. Afterwards, he sent the Skelly officer a detailed written description of the courses he had recently taken on sexual harassment, as well as his conclusions about what had occurred. He stated "I was guilty of what is known as workplace harassment, also known as creating a hostile work environment," and admitted having a "one-sided infatuation" with S.M., giving her unwanted and uninvited attention, and assigning himself to her patients on more than a random basis. Appellant expressed his regret for what had transpired, acknowledged S.M. had truly been in fear of him, and indicated that his actions were attributable to his desire to "make something good happen" after the death of his nephew and the eviction of his sister and her family from their apartment. The Skelly officer, though sympathetic to appellant, concluded that the University had followed the appropriate procedures and upheld the termination.
Under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, a public employee who is subjected to punitive action must receive "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."
E. Post-Deprivation Hearing
Appellant invoked his right to a post-deprivation hearing, which was held on August 5, 2013. Numerous witnesses testified to the underlying facts described above. Additionally, appellant presented the testimony of his treating psychiatrist, Dr. Bruce Levinton, who did not believe appellant had sexually harassed S.M. Dr. Levinton had initially trusted UCSF's conclusion that appellant was guilty of sexual harassment due to a "trust bias" in favor of the University, and on this basis he had guided appellant to write a letter of apology admitting he was guilty of sexual harassment. After approximately 150 sessions together, however, Dr. Levinson had concluded appellant was simply naïve regarding romantic relationships, and that S.M was "overstimulated," possibly as the result of prior sexual abuse or harassment by someone other than appellant. Appellant also presented the testimony of Dr. Brian Howard Kleiner, a professor of human resource management, who opined that appellant's conduct was not "severe and pervasive," and indeed, did not include a single instance of sexual harassment.
Nothing in the record supports this supposition. --------
The administrative hearing officer upheld the decision to terminate appellant. In a written decision issued on October 9, 2014, the hearing officer summarized the evidence presented, the UCSF harassment policy, and the general legal principles at issue and concluded, "I have weighed all material in this case and have evaluated the demeanor and credibility of all witnesses who testified in this matter. These witnesses vigorously and credibly cited numerous incidents of [appellant] pursuing [S.M.] with unwanted cards and letters, emails, repeated requests for dates, over-assigning himself to [S.M.]'s work areas, staring or leering at [S.M.] and culminating in [an] attempt to purchase a home in [S.M.]'s complex. [¶] I credit [appellant]'s letter to UCSF's Skelly Officer . . . in which he admits that [S.M.] felt harassed and that his behavior towards her was unwanted and uninvited. He admits that he was guilty of workplace harrassment and creating a hostile work environment. He admits that he was guilty of workplace harrassment and creating a hostile work environment. While I appreciate that he detailed his plans to 'make things up and reform,' it does not correct the wrongs that were done. [¶] [S.M.] testified that she suffered physical complications and disruptions in her work and personal life. The disruptions in her work and personal life took a toll on her well-being. [¶] [Appellant] has argued that the individual events in question do not constitute sexual harassment-hostile work environment. While I agree that the separated acts that make up this case by themselves do not justify an employment action, the cumulative effect does." Based on his findings of fact, the officer concluded "the totality of the circumstances indicates that the harassment affected the terms, condition, and privilege of employment for [S.M.] and was frequent and sufficiently severe or pervasive to alter her condition of employment and created a sexual harassment-hostile working environment. Additionally, I found that the harassment would detrimentally affect any reasonable person."
F. Writ of Mandate
On November 13, 2014, appellant filed a petition for writ of administrative mandate challenging the decision to terminate him and seeking damages. (Code Civ. Proc., §§ 1094.5, 1095.) The superior court denied the petition in a written order issued August 8, 2016. This appeal follows.
II. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1094.5, subdivision (b), sets forth the procedure for judicial review of an order or a decision by an administrative agency. (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1483 (Do).) Under subdivision (b) of that statute, "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
When the administrative decision at issue was made by an agency of constitutional origin, such as the University in this case, the trial court " 'is limited to determining whether there was substantial evidence supporting the agency's decision.' " (Do, supra, 216 Cal.App.4th at p. 1489.) On appeal, we review the administrative decision itself, rather than the decision of the trial court, to determine whether it was supported by substantial evidence. (Ibid.; Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 305-306.)
Under the substantial evidence standard, " 'we are not free to indulge in an independent reconstruction of the events: our view of the record must be circumscribed by a limited appellate review of University proceedings.' We examine all relevant evidence in the administrative record and view that evidence in the light most favorable to the judgment, resolving all conflicts in the evidence and drawing all inferences in support of the judgment. [Citations.]" (Do, at p. 1490.) The burden is upon the appellant to prove there was an abuse of discretion through the issuance of a decision that was unsupported by substantial evidence. (Ibid.) "Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence." (Ibid.)
"It is well settled that in a mandamus proceeding to review an administrative order the determination of penalty by the administrative body will not be disturbed unless there is a clear abuse of discretion." (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 226 (Talmo); see Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 73 (Kazensky).)
B. Substantial Evidence Supported a Finding of Sexual Harassment
Appellant argues he should not have been subjected to discipline because his conduct toward S.M. was neither sufficiently severe nor pervasive enough to meet any standard legal definition of sexual harassment. He compares his behavior to a "junior high school crush," and argues he was "merely socially awkward." We are not persuaded.
Courts in California have recognized two distinct types of sexual harassment: quid pro quo (which is not at issue here) and hostile work environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 (Fisher).) A hostile work environment is created when, considering the totality of the circumstances, the harassment is so severe or pervasive that it alters the conditions of the victim's employment. (Id. at pp. 607, 609.) "The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. [Citation.]" (Id., at p. 610.)
The persistence and severity of the harassment "should be judged from the perspective of a reasonable person in the [complainant]'s position." (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 468.) This proverbial reasonable person "is one of the same sex [or gender] as the complainant." (Fisher, supra, 214 Cal.App.3d at p. 609, fn. 7; see Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1095 (Davis); Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 924; Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 878 (Ellison).) The determination of whether conduct creates a hostile work environment "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . .The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." (Oncale, at pp. 81-82.) "A working environment is abusive if 'hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.' " (Davis, at p. 1095.)
Sexual harassment "need not have anything to do with lewd acts, double entendres or sexual advances." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345, disapproved on other grounds in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 816-823.) In Ellison, supra, 924 F.2d at pp. 873-881, for example, a fellow employee of the plaintiff, whom she barely knew, repeatedly asked her to lunch and wrote her bizarre love letters expressing his attraction to her. The court held she had stated a prima facie case for a hostile work environment sexual harassment claim even though neither his conduct nor his words were explicitly sexual. (Ibid.)
Here, the evidence showed that over a two-year period, appellant twice asked S.M. out on a date, gave her unwanted cards and gift cards, stared or leered at her, over-assigned himself to her work areas, constantly appeared in areas of the hospital where she was working or taking a break, sent her emails and notes expressing his affection for her, took steps to buy a condominium in the development where she lived, persisted in this effort even after she yelled at him and told him to leave her alone, and asked coworkers to intercede on his behalf. He did all this despite being told by coworkers that S.M. was frightened of him and he should leave her alone. After S.M. had confronted appellant about purchasing a condominium in her complex, he sent her an email indicating a desire to get together with her and view photographs of a vacation she was taking and told a coworker he would be taking S.M. on a cruise. We have no problem concluding that his unwanted attention was sufficiently severe and persistent to create a hostile work environment.
Appellant's efforts to paint himself as a misfit lacking in social skills is in effect a request that we reweigh the evidence considered by the administrative hearing officer. We are "not free to indulge in an independent reconstruction of the events: our view of the record must be circumscribed by a limited appellate review of University proceedings." (Do, supra, 216 Cal.App.4th at p. 1490.)
Appellant argues that he did not admit sexual harassment in the letter of apology he wrote at the suggestion of Dr. Levinton, because that letter was written as an exercise at a time when Dr. Levinton was taking UCSF's claim that sexual harassment had occurred at face value. Dr. Levinton testified that he ultimately came to the conclusion appellant had not sexually harassed S.M., and explained the circumstances under which the apology letter was written. It was up to the administrative hearing officer to determine what use to make of the letter; certainly he was provided with all the information necessary to determine its weight and import.
C. Termination Was Not an Abuse of Discretion
The University's policy on sexual harassment provides, "Any member of the University community who is found to have engaged in sexual harassment is subject to disciplinary action up to and including dismissal in accordance with the applicable University disciplinary procedure . . . or other University policy." (Emphasis added.) The University's Human Resources manual provides that dismissal "is normally selected after performance counseling and progressive discipline have failed to get the employee's attention to the problem. [¶] In extreme cases, such as job abandonment, theft, or an act that endangers others, the offense may be so grave that we forego progressive discipline." Appellant argues that these provisions required the use of progressive discipline in his case, rather than immediate termination. We disagree.
The question of whether progressive discipline is appropriate is a matter within an agency's discretion. (Karensky, supra, 65 Cal.App.4th at p. 75; see also Talmo, supra, 231 Cal.App.3d at p. 230.) Although the University policy allows for progressive discipline, it also makes it clear that an employee who has sexually harassed another employee may be terminated. "[I]f reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46.) Employers are obligated to take prompt corrective action to protect their employees from sexual harassment when it occurs. (See, State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041.) While reasonable minds could differ, appellant's supervisors could have reasonably concluded that his sexual harassment of S.M. was sufficiently severe to warrant termination.
Appellant's harassment of S.M. did not involve physical contact or overtly sexual overtures, but it persisted over a two-year period and caused its target considerable distress. S.M. testified that she did not initially report the matter due to her coworkers' insistence that appellant was harmless, and consequently, no supervisor intervened at an early stage to speak to appellant about his actions or impose a lesser form of discipline. But appellant was told by several of his coworkers that he should leave S.M. alone and he did not desist. The University considered several options, including removing appellant from S.M.'s work areas, requiring sexual harassment training, or suspending him, but ultimately determined these measures would be insufficient. This was not an abuse of discretion.
D. The University's Investigation of the Harassment was Adequate
Appellant argues the University should have "re-interviewed" the employees who spoke to de Souza in order to "sort out distortions and credibility." He criticizes de Souza's investigation as a "hodgepodge of data collection" and complains there is no record as to how and why certain witnesses were chosen. Finally, appellant complains the University "purposefully redacted" de Souza's recommendations from the report for the purpose of applying a "zero tolerance" standard of sexual harassment, in violation of UCSF policy. We are not persuaded.
De Souza interviewed a number of employees identified by S.M. as having knowledge of on ongoing harassment by appellant. Appellant could have informed de Souza of witnesses that would support his version of events, but apparently he did not do so. An unredacted version of de Souza's report was available to appellant, but was not attached to the notice of intent to dismiss because her recommendations were not taken into consideration in reaching the decision to terminate appellant. Appellant has not carried his burden of proving that the conduct of the investigation in this case deprived him of a fair hearing or otherwise amounted to a prejudicial abuse of discretion. (Code. Civ. Proc., § 1094.5, subd. (b).)
III. DISPOSITION
The judgment is affirmed. Costs to respondent.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.