Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG06288812
Ruvolo, P. J.
I. Introduction
Appellant Harvey J. Thompson, III (Thompson), acting in propria persona, appeals the denial of his petition for writ of mandate. Thompson filed the writ of mandate to overturn the decision of his former employer, The Regents of the University of California (the University) to close nine separate grievances filed by Thompson relating to his employment at respondent’s Berkeley campus. The grievances were closed after Thompson failed to exhaust the University’s internal grievance procedure. Thompson has failed to provide any cogent argument or reason to grant reversal; therefore, we must affirm the judgment.
During the pendency of Thompson’s appeal—specifically, when his opening brief was overdue and had not yet been filed—Thompson moved this court to order augmentation of the record on appeal to include eight volumes of administrative record. This court denied the motion to augment; however, the clerk of the court was directed to lodge the administrative record until the remittitur issued. (Order, Ruvolo, P. J., Oct. 4, 2007.) Upon further consideration, this court rescinds this portion of the order and we grant Thompson’s motion to augment the record on appeal to include the record from the administrative proceedings.
Thompson was employed in the University’s Department of Parking and Transportation (Parking & Transportation) at the Berkeley campus from January 17, 1997, until his involuntary discharge on June 30, 2005. The University affords its employees an opportunity to file a grievance for any employment-related decision. Thompson commenced nine separate employment-related grievances against the University for decisions made with regard to his employment in Parking & Transportation. Four of these grievances concerned progressive discipline imposed for his insubordination arising from violating sick leave procedures [P03023 (warning), P03039 (two-day suspension), P04006 (five-day suspension), P04016 (ten-day suspension)]. Three of these grievances related to his failure to follow procedures required for cross-divisional overtime [P03027, P03035 & P04034]. The eighth grievance concerned a counseling memorandum citing seven examples of lack of good judgment and unacceptable performance [P05004]. The ninth grievance concerned Thompson’s dismissal for two specific acts of insubordination arising from his failure to report to work [P05018].
The University has established a multi-step procedure which enables employees to take their grievances through various levels of review. The section governing discipline and discharge procedures, which is outlined in detail in the “Personnel Policies for Staff Members,” specifically describes the responsibilities and the steps to be followed throughout the internal grievance procedure.
Basically, the grievance procedure consists of three steps. In Step I, if an employee is dissatisfied with the decision rendered by the employee’s immediate supervisor or manager, then the employee has the right to make an appeal to the department head. If the employee is also dissatisfied with the decision of the reviewing department head, the procedures provide for a Step II review of the department head’s decision by a University official. In the event the employee is still dissatisfied, Step III permits the selection of an independent hearing officer for the resolution of the employee’s grievance after a hearing with the presentation of evidence, leading to a written decision.
In each grievance, Thompson went to the Step II level of review; and in each case, the University’s employment-related decision was upheld. The matter then proceeded to Step III of the grievance procedure. However, the Step III hearing officer mutually selected by the parties, Vice-Chancellor Robert Price (Price), declined to serve as the hearing officer because of his personal friendship with Nad Permaul, director of Parking & Transportation. Price perceived a potential conflict because Thompson had been employed by Parking & Transportation and that was the department from which each of the grievances arose.
Thompson was specifically advised by the University in an October 2005 letter that “Mr. Robert Price is not available [to serve] as a University Hearing Officer. He withdrew from this case because he is a personal friend of Mr. Permaul and felt that it would be a ‘conflict of interest’ if he was the Hearing Officer.” Thompson was instructed to choose one of three hearing officers identified in the letter in order to proceed with the Step III hearing.
Thompson then waited almost two months to question this decision, and once he did, he wrote a letter to the University demanding to be shown Price’s written notification that he had withdrawn. On January 11, 2006, the University’s Grievance Coordinator, Rosemary Leb, replied to Thompson, noting that University “policy does not require hearing officers to provide written notification as to why they are not available to hear a case[.]”
Nevertheless, Leb sent Thompson a series of e-mails exchanged with Price on the subject, culminating with a January 5, 2006 e-mail written by Price fully explaining the reason for his recusal. Price wrote: “Years ago Nad Permaul was a student in my Department and I had a good deal of interaction with him at that time. From then on I have had intermittent contact with him related to campus matters. When I was the Chair of Political Science between 1995 and 2002, I hired Dr. [sic] Permaul to teach a course in my department as an acting lecturer. I am concerned that my personal relationship with Director [sic] Permaul creates a potential conflict of interest with respect to hearing a case in his department.”
Thompson then ignored multiple, specific warnings that if he failed to select a new hearing officer, his grievances would be closed. For example, a letter dated February 17, 2006, sent by the University to Thompson cogently explains: “This is in follow-up to my correspondence dated February 15, 2006 advising you that the University considers your grievance . . . closed and resolved on the basis of the decision rendered at the previous step. [¶] Attached is a list of the University’s Hearing Officers. Except for Professor Robert Price, the University agrees to use whichever Hearing Officer or Hearing Officers you select. [¶] This is the University’s final attempt to afford you the opportunity to have the matter(s) of your grievances be reviewed by a University Hearing Officer under the terms of the Personnel Policies for Staff Members (PPSM); accordingly the University requests that you select a Hearing Officer or Hearing Officers from the list so that the Grievance Coordinator, Ms. Leb, can schedule hearings. Please select your first, second, and third choice for each hearing so that we can move your cases forward.” (Italics added.)
On March 6, 2006, Thompson replied but failed to select a new hearing officer. Instead, Thompson repeated his previous assertion that Price had never made an “affirmative withdrawal” as a hearing officer.
On March 14, 2006, Thompson was advised by letter that “[b]ecause you have failed to select hearing officers as requested by the University in its February 17, 2006 letter,” Thompson’s grievances were closed and the Step II decisions, which were adverse to Thompson, became final.
Thompson filed a petition for writ of mandate challenging the University’s decision to close all of his grievances, claiming that the University’s “unilateral action in the preclusion of Mr. Price from the selection list denied [Thompson] his right to due process.” In answer to the mandate petition, the University argued, among other things, that Thompson’s request for judicial relief was barred because the University had provided a three-step grievance procedure for reviewing employment decisions which Thompson was required to pursue to completion before resorting to the court for redress.
The trial court denied Thompson’s writ of mandate because he had failed to exhaust the University’s administrative grievance procedure. In its written order, the court stated: “[Appellant] has repeatedly asserted . . . that he was denied a ‘Step III’ administrative review for the grievances at issue. . . . [¶] The Court, however, is satisfied that [appellant] had ample opportunity to take advantage of and participate in the Step III process but refused to do so. . . . Respondent has submitted sufficient evidence demonstrating its repeated attempts to engage in the ‘Step III’ review process and [Appellant]’s actions to thwart the process by refusing to select an alternative (and available) hearing officer. . . . Accordingly, the Amended Petition is denied . . . for failure to engage in and exhaust the available administrative remedies.”
The court further noted that the wage claims that appeared in Thompson’s fourth cause of action in the petition for writ of mandate were not properly the subject of a writ of mandate under Code of Civil Procedure section 1085, and that the claims were time-barred under the applicable statute of limitations. Thompson has not provided this court with any authority or cogent argument showing that this ruling was incorrect.
This appeal followed.
III. Discussion
The common thread running through Thompson’s appeal is that the preclusion of Vice-Chancellor Price from the list of independent hearing officers denied him his procedural and substantive right to due process. By way of example, Thompson states in his opening brief that he was denied “due process under the 5th and 14th Amendments to the United States Constitution and Article I, sections 7 and 15, of the California Constitution, by not allowing the select [sic] of Mr. Price to hear any of appellant’s grievances.” This argument is repeated throughout Thompson’s briefing of this matter.
We reject Thompson’s argument for two reasons. First, his constitutional arguments are wholly undeveloped, lacking any citation to or discussion of the law supporting his arguments. It is not our function as a reviewing court to act as “backup counsel” for the parties. We are not required to make an independent, unassisted study of the record to determine whether it supports Thompson’s contentions. Nor are we required to construct Thompson’s legal arguments for him. Rather, “Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived. [Citations.]” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
We emphasize that an appellant appearing in propria persona is entitled to the same, but no greater consideration than other litigants and attorneys. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 944.)
We deem Thompson’s argument to be waived by his failure to provide any coherent, substantive argument showing his constitutional rights were violated. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522 [“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.]”]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“[w]hen an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary”]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention deemed waived because “[a]ppellant did not formulate a coherent legal argument nor did [he] cite any supporting authority”]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [“[t]he dearth of true legal analysis in [his] appellate briefs amounts to a waiver of the [contention] and we treat it as such”].)
Second, to the extent we can understand Thompson’s appellate arguments, they are unpersuasive. The record reveals Thompson invoked the University’s grievance procedure and participated in it up through Step II, but abandoned the process at Step III because he was unhappy that the hearing officer selected by the parties had withdrawn because of a conflict of interest. Despite repeatedly being told to select a new hearing officer, Thompson inexplicably refused to do so. The University closed his grievances only after multiple deadlines for selecting a new hearing officer passed.
Thompson’s appellate arguments challenging the University’s decision rests on numerous faulty assumptions. Despite Thompson’s assertion to the contrary, there is nothing in any of the University’s procedures requiring Price to provide written notification of his refusal to serve as a hearing officer. There is nothing that requires a selected hearing officer to provide an “affirmative statement” of his/her withdrawal, or the reasons. There is nothing that grants Thompson “a beneficial interest in and a right to have Mr. Price as the hearing officer” as Thompson claims on appeal. Nor has Thompson pointed to any authority granting him “a proper hearing before a proper impartial hearing officer who could determine whether or not Mr. Price was unavailable or had recused himself from hearing appellant’s grievances.” The record reveals that Thompson’s persistent refusal to select a new hearing officer on nonexistent procedural grounds was entirely unjustified.
As the trial court recognized, an employee may not opt out of an internal grievance procedure before a final decision is reached in order to file a writ of mandate in court. Instead, the employee must exhaust the administrative remedy provided until a final decision is obtained, and, if the decision is adverse, then pursue mandate relief. The trial court’s decision in this matter is supported by cases such as Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 904, and Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520, which hold that the existence of an internal grievance procedure requires the aggrieved party to exhaust his or her administrative remedies prior to bringing an action at law.
IV. Disposition
The judgment is affirmed. Costs on appeal to the University.
We concur: Sepulveda, J., Rivera, J.