Chapman v. Cal.State Personnel Bd.

Filed 1/22/07  Chapman v. Cal. State Personnel Bd. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Thomas P. Nugent, Judge.  Affirmed.

            This is the third appeal arising from the decision of California State University at San Marcos (CSU) to terminate Assistant Professor Barbara S. Chapman for unprofessional conduct and failure or refusal to perform the normal and reasonable duties of her position because she did not teach her assigned course on seven days between August and September 2000.  (Ed. Code^[1], § 89535 subds. (b) and (f).)  Chapman appealed to the State Personnel Board (SPB).  The administrative law judge (ALJ) issued a proposed decision that sustained CSU's termination of Chapman.  The SPB subsequently adopted the ALJ's decision.  Chapman filed a petition for writ of ordinary mandate and administrative mandate seeking to set aside the SPB decision and restore her employment with CSU.  The trial court issued a judgment denying the petition.  (Code of Civ. Proc., §§ 1085 and 1094.5.) 

            Chapman advances several reasons for her contention that the SPB erred in sustaining CSU's termination of her employment.  All of Chapman's contentions are barred by res judicata or unsupported by the evidence.  We affirm. 

FACTUAL AND PROCEDURAL SUMMARY

A.

            The factual and procedural history of this case are addressed in our two previous opinions (Chapman v. Trustees of the California State University (Apr. 5, 2005, D042936) (Chapman 1); Chapman v. Trustees of the CaliforniaStateUniversity (Apr. 5, 2005, D043402 (Chapman 2) [nonpub. opns.]).  We set forth only additional facts necessary for an understanding of this third appeal.  

            The ALJ held hearings on May, 29, 2002, December 10-11, 2002, March 10-11, 2003, May 12-13, 2003, August 4-5, 2003, and October 20, 2003, and issued his proposed decision on August 23, 2004. 

            At the hearing, Chapman stated, " I stipulate to the fact that I did not teach the [seven classes].  I took sick leave on those days."   Richard Bray, Program Director of the Biological Sciences department at CSU, testified that he informed Chapman in February, 2000 of her fall teaching schedule, but Chapman told him that she would not teach the assigned course.  According to Bray, other professors were not available to teach the course because Dr. Read and another professor had " received funded course releases through external grants;" moreover, a different professor was pregnant and scheduled to take maternity leave during the fall.

            On February 24, 2000, Chapman sent the Associate Dean, Patricia Worden, an email that stated, " I just received a copy of the proposed Fall 2000 schedule that has an error regarding my teaching assignment.  The schedule has me down for BIOL 351 instead of my normal assignment of BIOL 316 and BIOL 377 and a third course.  I have not agreed even to consider teaching BIOL 351, and will not be teaching it next Fall.  I will file a contract grievance if this error is left in the Fall Schedule.  Thank you for taking care of this."

            Victor Rocha, Dean of Arts and Sciences, met with Chapman in May 2000, and his notes of the meeting confirmed her assignment, but also offered a compromise: " Biology 351 involves three hours of lecture, and three hours of laboratory that has a companion one hour seminar.  You should plan on offering the course lectures and two laboratory sections with companion seminar sessions.  Depending on student enrollment, other instructional personnel may offer one additional laboratory section; however, you will be responsible for supervision of this instructor.  The workload factor associated with this assignment constitutes your entire teaching load for the coming semester.

            " I am willing to consider an alternative teaching assignment where one laboratory is [replaced] by a course on Bioinformatics; it is my understanding that [you] are keen to develop expertise in this area and teaching a course is the best strategy to achieve that goal."

            Mary Elizabeth Stivers, CSU's Associate Vice President of Academic Resources,  testified she attended a May 24, 2000, meeting with Rocha, Chapman and others, and Chapman stated " that she would walk into class on the first day and that she would tell the students that she didn't know about the class and that she didn't have time to prep it."    Stivers pointed out to Chapman that would not be the truth.

            On August 18, 2000, Worden, serving as CSU's interim Vice President for Academic Affairs, addressed Chapman's concerns in a memorandum:  " [Y]our teaching assignment for the fall 2000 was first addressed in February of this year.  In May, a consultation meeting was held to discuss your course load for the fall semester 2000.  Documentation of these facts is included in the materials you provided with your letter of August 8, 2000.  Classes for the fall semester begin one week from today.  It is imperative that we meet the needs of the students.  The course load you have been assigned is critical for the academic progress of the Biology students and the needs of the program.  . . .  From your correspondence, it is uncertain whether you intend to meet your contractual obligations to teach the courses assigned to you.  However, as you are aware, your failure to meet those obligations will subject you to adverse consequences, including disciplinary action.  [¶]  . . .  While I remain available to consider any other appropriate suggestions you may wish to propose, there should be no doubt that you are expected to fulfill your professional obligations, including but not limited to teaching Biology 351 as assigned for this fall."

            Miriam Schustack, Acting Dean of the College of Arts and Sciences, confirmed in an August 31, 2000, letter that she previously had instructed Chapman to provide medical verification for her absences from class on August 25, 28, and 30.  Chapman signed the letter, acknowledging she had received it.

            On September 5, 2000, George Diehr, president of CSU's chapter of the California Faculty Association (CFA), informed Chapman: " [T]he contract has no provision under which you could elect not to perform your responsibilities while a grievance is pending.  Thus, I must recommend to you that you meet those classes assigned to you and carry out the normal responsibilities expected of a tenure-line faculty member."   Chapman also had missed classes on September 1, 6, 8, and 11.   She did not provide the required medical verifications, and CSU did not authorize her absences. 

            Shustack testified as follows regarding Chapman's reasons for missing the first two classes:  " I believe that Dr. Chapman had mentioned in one of our . . . meetings in person that she had a scheduled dental appointment for routine cleaning or exam, I don't remember the details, and also an optometrist appointment or something have [sic] to do with new glasses."

            Robert Sheath, CSU's Provost and Vice President for Academic Affairs, sent a Dec. 17, 2001, letter to Chapman announcing the initiation of the second formal disciplinary proceedings.  It stated, " On August 21, 2000, you reported to the campus, but from that date through September 11, 2000, you refused to report or to teach any of your assigned courses."  

DISCUSSION

      I.   

            " 'The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.'  [Citation.]  The doctrine of res judicata -- or claim preclusion -- adheres when (1) the issues decided in the prior adjudication are identical with those presented in the later action; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication."   (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1420, fn. 1 (Pollock.).)

            An appellate court's decision is a final judgment on the merits when the Supreme Court has denied review.  (Pollock, supra, at p. 1420, fn. 1.)  An action is actually litigated when it is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.  A determination may be based on a failure of proof.  (People v. Sims (1982) 32 Cal.3d 468, 484.)  " A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable."   (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.)

            Although our previous decisions in this case were unpublished, they are citable.  Rule 977(b)(1) of the California Rules of Court permits citation " when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel."   (Cal. Rules of Court, rule 977(b)(1); accord, Pollock, supra, 112 Cal.App.4th at p. 1420, fn. 1.)

            In Chapman's opening brief, her contentions are divided into the following broad categories:  (1)  Her termination should be reversed because her assignment was unreasonable and inappropriate; therefore, she had the discretion to refuse the assignment, and her doing so was right, and not a proper basis for the SPB's finding her conduct was unprofessional;  (2)  CSU did not accord her the required pre-termination due process rights involving a faculty review hearing.  (3)  SPB's hearing was fundamentally unfair;  (4)  CSU unlawfully amended the charges against her while her first dismissal was in effect, and her second dismissal was barred under the doctrine of equitable estoppel; and  (5)  her writ petition was the appropriate means for her to obtain an equitable remedy.

            In Chapman 2, supra, D043402, we rejected Chapman's claim that CSU failed to provide her a faculty review hearing under section 89542.5, because she was not entitled to one under the memorandum of understanding between CSU and the CFA.  Rather, her options for appealing CSU's disciplinary action were to submit it to binding arbitration or file a petition with SPB.  We held, " Had Chapman desired a hearing in front of a faculty review committee to contest her second termination, she could have filed a petition for writ of mandate requiring CSU to provide the faculty review committee.  Instead, she opted to appeal her termination before the SPB.  By so doing, she waived any right she might have had to a faculty review committee hearing."   (Chapman 2, supra, D043402, at p. 12.)  Chapman had sought a de novo review of her second termination because the SPB did not issue its ruling within the time limits set forth in section 18671.1.  We assumed, arguendo, that this code section was applicable, and determined she had waived both the right to contest the time limits and a de novo review because, even after SPB had ruled she had waived the time limits, she continued to participate in the SPB hearings.  Therefore, she had acquiesced in SPB's finding of waiver.  (Chapman 2, supra, D043402, at pp. 2, 8.) 

            In Chapman 1, supra, D042936, we concluded res judicata barred Chapman's allegations that CSU did not properly reinstate her, and still owed her monies, because she had not objected to CSU's return to Writ I, in which CSU explained different disbursements it made to her; the trial court's subsequent discharge of Writ I; or, the court's denial of her motion for reconsideration.  (Chapman 1, supra, D042936, at pp. 11-12.)  We also affirmed the trial court's decision to sustain CSU's demurrer to Chapman's causes of action for wrongful discharge in violation of public policy, intentional infliction of emotional distress, and violation of civil rights, because she failed to file a complaint alleging those tort causes of action or join a complaint with her writ petition.  (Chapman 1, supra, D042936, at pp. 13-14.)  Chapman failed to exhaust her remedies regarding the grievances she filed with the CFA because under the collective bargaining agreement, those grievances were subject to binding arbitration.  (Chapman 1, supra, D042936,

at p. 10.)  We concluded her challenge to SPB's delay in issuing its ruling, made in writ " Petition III," was not timely filed.  (Chapman 1, supra, D042936, at pp. 9-10.) 

            In light of the above rulings, res judicata applies to the following claims Chapman makes on appeal: her due process rights to a faculty review hearing under section 89542.5 were denied; CSU's failure to implement mandatory grievance and discipline procedures was correctable by writ of mandate; the SPB violated the time limits specified in section 1867.1; she is entitled to tort damages through her mandamus petition; CSU engaged in gender discrimination by denying her promotion and tenure in violation of the Higher Education Employer-Employee Relations Act (HEERA) and the Education Code.  And, her mandamus action appropriately focused the litigation on the equitable remedy to which she is entitled, including recovery of her damages and resolution of her discrimination claim, the faculty status dispute, and her other grievances.  We resolved these identical issues in our two previous decisions, which were final and on the merits, given that the California Supreme Court denied Chapman's petitions for review of each one; and, the same parties were involved in the underlying proceedings and this appeal. 

            The following contentions raised in Chapman's briefs regarding CSU's pre-termination conduct also are barred by res judicata because they could have been raised in the previous appeals: CSU's notice to Chapman regarding the SPB hearing was constitutionally inadequate; and, the ALJ erroneously excluded from evidence some exhibits Chapman proffered at the hearing.  In any event, these contentions also fail on the merits for the reasons elaborated in the trial court's statement of decision.  Specifically, the Notice of Pending Disciplinary Action sent to Chapman complied with the notice requirements of section 89538.  Also, the ALJ did not err in declaring at the end of the last day of hearings that the time for submitting evidence was closed.

II.

            In reviewing a writ of administrative mandate proceeding, " The scope of our review is coextensive with that of the superior court.  We are not bound by determinations of the superior court, which in effect conducted an appellate review of the Board's proceedings."   (Brooks v. State Personnel Bd. (1990) 222 Cal.App.3d 1068, 1071-1072.)  " 'The record must be viewed in a light most favorable to the decision of the Board and its factual findings must be upheld if they are supported by substantial evidence.'  [Citation.]  [¶]  . . .  As a general matter, the penalty determined in a disciplinary proceeding will not be disturbed absent a manifest abuse of discretion.  [Citation.]  'The discretion exercised by the administrative body must be an impartial one taking into account all relevant facts, together with legal principles essential to an informed and just decision. . . .  However, even were the penalty to appear harsh to us, still we would not be free to substitute our discretion for that of the administrative

body. . . .' "   (Gonzalez v. State Personnel Bd.  (1995) 33 Cal.App.4th 422, 428-429.) 

            Chapman's contentions in this appeal that are not barred by res judicata relate to the fairness of the SPB hearing and whether substantial evidence supported the SPB's decision that CSU terminated Chapman because she " intentionally and repeatedly failed to appear and teach classes that were assigned to her" and, " the circumstances surrounding [Chapman's] misconduct [did] not establish cause for mitigation."

            Substantial evidence supported CSU's termination of Chapman.  She acknowledges that teaching, along with research and service, is a principal duty a professor performs at the university.  The trial evidence established that Chapman was informed of her teaching assignment several months before the fall semester began.  Notwithstanding explicit warnings that her refusal to teach the assigned course could have adverse consequences for her, she persisted in not teaching the class.  CSU did not authorize her to be absent from those first seven classes of the semester, and she failed to provide the requested medical verifications.  She also ignored a warning by the president of the local chapter of the CFA that her pending grievance was not an excuse to absent herself from her assigned classes.        

            Chapman attempts to bring her case within the scope of Moosa v. State Personnel Bd. (2002) 102 Cal.App.4th 1379, 1386, which held that public employees may refuse to obey an order of their superiors if they have a 'legitimate reason' or 'valid excuse' for their refusal.  Specifically, Chapman argues, " CSU did not allege, much less prove, that the assignment was normal for her, or reasonable to take over [Professor Read's] entire teaching load upon [Chapman's] returning from professional leave, or work during the [s]ummer without compensation, or give up the course release on her grant."   It was Chapman's burden to prove her affirmative defense that her refusal to carry out her assignment was reasonable.  (Fukada v. City of Angels (1999) 20 Cal.4th 805, 810, fn. 3.)       Chapman contends that CSU's decision to terminate her failed to consider her legal defenses and was retaliatory.  The contrary is true.  The ALJ took into account her defenses that she was not consulted regarding the assignment; it was an unreasonable workload;  the assignment was punitive; she was improperly denied sick leave; she was justified in her refusal to teach the class; and she was assigned the class in retaliation for exercising rights guaranteed by HEERA.  The ALJ found that, " [T]he evidence failed to establish that [Chapman's] assignment to teach the Bio-351 was an 'unreasonable teaching schedule and/or workload under the terms of the CBA or that her assignment . . . was inconsistent with the CBA."   He also concluded, " [Chapman] must have known that her medical appointments conflicted with her teaching assignments, but she nevertheless chose to attend her appointments rather than reschedule them."   Those findings are supported by substantial evidence.

            Finally, we reject Chapman's contention CSU unlawfully amended the charges against her while the first dismissal was in effect.  There was nothing unlawful about CSU's decision to rely on the same underlying facts relating to Chapman's seven absences from class to terminate her the second time under a different statute.  The trial judge who ordered Chapman reinstated ruled, " Although the record clearly shows that Petitioner failed to teach the assigned class, the procedure by which Respondent dealt with this failure was incorrect.  Respondent could have instituted adverse action against Petitioner, under Education Code section 89535(f), for refusing to perform normal and reasonable duties of her position, namely teaching."    The ALJ  found, " The doctrine of res judicata [did] not prevent [CSU] from bringing disciplinary action against [Chapman] based on the same facts as the failed automatic resignation."    We agree.

DISPOSITION

            The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

                McDONALD, Acting P. J.

                                            IRION, J.

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^[1]           All further statutory references are to the Education Code unless otherwise stated.