Regan v. Office Of Administrative Hearings

Filed 10/19/06 Regan v. Office Of Administrative Hearings CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.

Michael Regan, in propria persona, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Louis R. Mauro, Senior Assistant Attorney General, Catherine M. Van Aken and Jill Bowers, Deputy Attorneys General, for Defendant and Respondent Administrative Hearings.

Kevin S. Reed and Stephanie Bowick for Defendant and Respondent Los Angeles Unified School District.

INTRODUCTION

Following a four-day administrative hearing, the Los Angeles Unified School District (LAUSD) fired Michael Regan (Regan) from his position as a permanent certificated teacher. Regan thereafter sought relief in the superior court by filing a petition for a writ of mandate. The trial court denied the petition. This pro per appeal by Regan follows. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Administrative Proceedings

1. LAUSD Initiates Proceedings Against Regan

Regan began his employment as a teacher with LAUSD in 1993. In 1995, he became a permanent certificated teacher.

In November 2002, LAUSD notified Regan that cause existed to terminate his employment based upon his performance for the four-year period beginning in 1999 and ending in 2002. At that time, he taught Social Studies and English at Berrendo Middle School, a school with more than 3,000 students. An 11-page Accusation and Statement of Charges set forth three grounds for Regan’s dismissal: unsatisfactory performance, evident unfitness for service, and persistent violation of or refusal to obey pertinent rules and regulations. This charging document contained more than 60 examples of misconduct. They included disrespectful treatment of students, failure to attend faculty meetings, failure to follow administrative directives regarding suspension of students, failure to follow proper procedures in testing his students, lack of proper planning and presentation of class material, inability to control the students, tardy arrivals to class, leaving the premises before the end of the school day, and falsification of time records.

Pursuant to the procedure followed when dismissal of a teacher is recommended, LAUSD temporarily assigned Regan to the Local District Office effective January 2003 pending a final determination of Regan’s status.

In March 2004, LAUSD filed a Second Amended Accusation and Statement of Charges with 75 claims of misconduct. Several of the new charges alleged that in his reassignment to the Local District Office, Regan had failed to observe the required work hours and was excessively absent.^[1]

In June 2004, a four-day hearing was conducted before the Commission on Professional Competence (COPC) at which oral and documentary evidence was received. Regan represented himself. Two primary issues were litigated. The first was the question of Regan’s professional competence. The second was whether Regan was disabled within the meaning of the Americans with Disabilities Act (ADA) and, if so, whether LAUSD accommodated him. This second issue was raised because Regan claimed that many of his attendance problems were the result of LAUSD’s failure to accommodate him. He also suggested that LAUSD’s intent to fire him was, in part, a discriminatory response to his request(s) for accommodation.

2. Evidence of Regan’s Professional Competence

On the question of professional competence, the evidence included five Notices of Unsatisfactory Acts issued from the period of September 1999 to February 2003. These documents included supporting material and were amplified by the testimony of the school administrators who issued them, including three principals. In addition, LAUSD introduced the four “below standard“ evaluations Regan received for the school years beginning in 1999 and concluding in 2002. All of this documentary evidence was introduced at the hearing with Regan’s acquiescence.

Richard Alonzo, LAUSD’s local district superintendent, authorized Regan’s dismissal. Three principals had concluded Regan’s performance was unsatisfactory. According to Alonzo, that negated the possibility of a personality conflict as a reason for Regan’s poor evaluations. Alonzo believed that adequate assistance had been provided to Regan to overcome his weaknesses, but that there had been no indication of “any kind of incremental growth or improvement” on Regan’s part. Alonzo had “not seen any effort on [Regan’s] behalf to improve on discipline, to improve on the academics that was provided in the classroom or to provide even an atmosphere [in] which learning takes place.” Alonzo explained that it was very difficult for the students “to learn if a teacher [here, Regan] leaves school without teaching [a] full day, [is] not prepared, when the teacher is not get[ting] the most rigorous academic information to the children and is just letting kids go out of the classroom, dismissing them for no reason, sending them out of the classroom and not providing quality education. That has an impact on kids because those kids are then less prepared when they go into their next year of school.”

Regan’s defense, as set forth in his trial brief, his testimony at the administrative hearing and his closing argument, was that the charges were false and that LAUSD’s witnesses were biased against him. Regan denied specific instances of verbal and physical abuse of students. He was evasive as to whether he had ever arrived late to class but admitted he was frequently absent during the 2002-2003 school year. He testified that those absences were due to illness and fatigue and, contrary to the testimony from LAUSD witnesses, he always arranged for substitute teachers to cover for him.

At the close of the hearing, members of the COPC panel directed questions to Regan. One member, recognizing that the overarching allegation against Regan was unfitness to teach, asked Regan to explain his teaching strategies. Regan responded with a lengthy but evasive answer.

In a detailed 15-page decision, COPC found that the evidence supported the vast majority of the charges made against Regan. COPC specifically rejected Regan’s attack on the credibility of LAUSD’s witnesses. COPC’s decision explained: “[Regan] contends that many of the administrators or other staff that reported the acts found above were misrepresenting the facts or had intent to injure [him] in his profession. [Regan] did not submit sufficient evidence to support these contentions.” COPC found that cause existed to fire Regan for unprofessional conduct, evident unfitness for service, and “persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools[.]” COPC ordered Regan be dismissed from his job as a permanent teacher.

3. Evidence of Regan’s Disability

On the question of Regan’s disability and LAUSD’s accommodation, the evidence was the following.

On July 3, 2001, Regan presented LAUSD with a formal request for accommodation, supported by a doctor’s letter that he suffered from irritable bowel syndrome. Regan sought “to be assigned to a classroom near a toilet, so that I can go to the bathroom every hour between class periods.” On July 18, 2001, LAUSD granted the request.

In September 2002, Regan obtained a letter from his doctor stating that he suffered both from irritable bowel syndrome and chronic fatigue. This letter explained: “It is difficult for him [Regan] to work a full 6-hour classroom day, as he needs an hour to rest at some point within the day. Since he has been working 5 consecutive classroom hours recently, he has been taking the last hour of each workday for rest purposes. Please accommodate him in this regard, or alternatively afford him an hour of non-classroom duty at some other point during the afternoon.” Regan, however, offered no evidence (testimonial or documentary) that he then presented LAUSD with a formal request for accommodation based upon the letter’s contents.

Five months later, in February 2003, Regan tendered the September 2002 letter to LAUSD after it asked him to provide medical verification for his frequent absences. In an accompanying letter, Regan claimed that he had already advised LAUSD that his reassignment to the Local District Office “violates a standing Reasonable Accommodation granted July 2001” and that LAUSD has “refused accommodation of the physical limitations [my doctor] has documented several times for the district.”

In July 2003, Regan obtained another letter from his doctor (Dr. Rogen) reiterating his physical problems. The letter, addressed “To Whom It May Concern,” explained: “It remains very difficult for him [Regan] to work a full 8-hour day, including commute time, as he needs an hour to rest at some point within the day. He requires close access to a restroom at all times due to his condition, as well as a minimum commute time to work for the same reason. He will have more than the usual number of absences due to illness given his chronic condition, and may also have to leave work early on occasion. Please accommodate him in these requests and issues.” Regan presented this letter to LAUSD in July 2003 in response to its request that he document the reason(s) for his multiple absences from work. As can be seen, the letter did not directly address any specific absences or the reasons therefor. In addition, Regan never formally requested an accommodation based upon the letter’s representations.

Cathleen Frances Kibala, staff relations coordinator for LAUSD, testified that she “repeatedly” told Regan that if he wanted an accommodation to work a shorter day or to work closer to home, he had to file a formal request. She explained to him that the accommodation granted in 2001 (classroom near a bathroom) did not cover these other requests and that the July 2003 letter from his doctor was too general and hence inadequate. She testified that the letter “never specifically said that [Regan] couldn’t work the 6.6 hours and that [he] couldn’t drive that 12-mile distance from [his] home to [the district] office.”

To follow-up the July 1 letter, Kibala telephoned and spoke with its author (Dr. Rogen). Kibala’s notes of that conversation reflect that Dr. Rogen told her that “[i]f [Regan] has breaks and a rest period, he can work a 6-hour day w/o leaving early;” “[i]f his commute is 45 mins. or less and he uses restroom before he leaves, he should be able to drive to work with no problem”; and “[Regan] would have more than the usual absences but not excessive[.]”

Dr. William Bierer testified on behalf of LAUSD. He holds the position of Medical Director of Employee Health for LAUSD. His responsibilities include acting as an ombudsman for ADA reasonable accommodation requests. He met with Regan several times. At one point, Regan provided Dr. Bierer with the prescriptions for the medications that his attending physician had given him to treat his “bladder” and “bowel condition.” Regan told Dr. Bierer that he had stopped taking these medicines. According to Dr. Bierer, these medications were “ideal” and “would have perfectly controlled the condition” had Regan taken them as prescribed by his doctor. Dr. Bierer further testified that Regan was precipitating his “spasmodic condition of the bowel” through his admitted self-administration of enemas, a practice Dr. Bierer advised him to discontinue. Dr. Bierer testified that if Regan stopped administering enemas to himself, he could work a 6.6 hour workday.

Dr. Bierer testified that he last met with Regan in March 2004. At that point, Regan was no longer working at the Local District Office. (See fn. 1, ante.) Regan requested authorization to return to work and reasonable accommodation. Dr. Bierer asked Regan to provide documentation from his attending physician. Regan declined to do so. In addition, Regan refused to sign a release to authorize Dr. Bierer to contact his physician.

In a similar vein, Richard Alonzo, local district superintendent, testified that Regan never made any formal request(s) for accommodation to work a shorter day or to worker closer to home.

Regan’s own testimony (given on cross-examination) confirmed that although LAUSD had advised him to submit additional formal requests for accommodation, he never did so. He believed that he “didn’t have to” because his 2001 request for accommodation had been granted, although he conceded that his 2001 application did not request a work site close to home. He testified that he was satisfied with the accommodation granted in 2001.

In regard to his March 2004 meeting with Dr. Bierer when he (Regan) sought to return to work, Regan admitted he had rejected Dr. Bierer’s request that he sign a release for his medical records. According to Regan: “I didn’t have to give him any medical permission or medical records from my doctor.” When asked about Dr. Bierer’s testimony that he (Regan) said he had stopped taking the medications that would control his medical problems, Regan gave a lengthy non-responsive answer.

COPC reached the following conclusion on the question of accommodation of Regan’s disability.

“8. [Regan’s] medical condition [necessitating that his classroom be near a bathroom] does not excuse his failing to be in class on time, leaving early, allowing students to leave class early, or failing to appear for full work days at the local district office. [Regan’s] insistence that it does is based upon his unreasonable views that the accommodation granted to him in July 2001 was much broader than it was, and that, for some inexplicable reason, he was not required to present specific excuses or Certifications for the times he left work early or did not appear for work. Nor can [Regan] cogently explain why he did not formally apply for further reasonable accommodations in his workplace relating to the suggestions offered in his doctor’s letters.”

B. Trial Court Proceedings

In April 2005, Regan filed a petition for writ of mandate (Code Civ. Proc., § 1094.5) to challenge his dismissal.^[2] He alleged that LAUSD “did not present [COPC] with any evidentiary proof of any of its charges. The presentation of its case . . . consisted entirely of those district employees whose allegations comprised LAUSD’s dismissal charges repeating said allegations from the stand. . . . [COPC] made its decision entirely on a credibility determination in favor of LAUSD, in spite of [Regan’s] evidence and facts demonstrating that LAUSD was not entitled to the court’s extension of credibility in matters regarding Regan. . . . The [decision to fire him] is unsupported by evidence and in fact, is invalid, is arbitrary, capricious, and a prejudicial abuse of discretion.”

In ruling upon Regan’s petition, the trial court reviewed the administrative record, which consisted of a reporter’s transcript of four days of hearings before COPC, and four volumes of exhibits introduced at that hearing.^[3]

The trial court ruled:

“The charges against [Regan] consisted of seventy-nine items of alleged misconduct. [COPC] found that some, but not all, of them were established by the evidence and constituted cause for dismissal. The court has independently reviewed the administrative record and finds that the weight of the evidence contained therein supports the administrative decision.

“[Regan] contends that he was fired in violation of the Americans With Disabilities Act. This contention is based upon evidence that in July of 2001, [he] sought and obtained a reasonable accommodation under the act. He claimed that he needed to be assigned to a classroom near a toilet, so that he could go to the bathroom every hour between class periods. [Citation to exhibit.] The accommodation that he requested was granted, effective July 16, 2001 [citation to exhibit]. [Regan] apparently construes said accommodation to permit him to arrive late, leave early, and fail to show up for work for an extended period of time. [Regan’s] interpretation of the accommodation given to him is without merit. The administrative finding that [Regan] never did submit an application for reasonable accommodation for taking days off, or for early release, or for failing to arrive at his class on time, or for leaving early, or for allowing students to leave class early, is supported by the weight of the evidence produced at the administrative hearing. The finding that [Regan] failed to provide any evidence that his missed time was due to illness is also supported by the weight of the evidence.” (Italics added.)

DISCUSSION

Regan contends that the trial court’s judgment denying his writ petition is error because the administrative “decision is not based on findings supported by evidence. . . . LAUSD did not submit any evidentiary support of any of the charges they filed. . . . Given the fact that [Regan’s] evidence demonstrated that LAUSD administrators and employees discriminated against [him] on the basis of a disability and had documented false allegations against him, a reasonable person would not conclude that the evidence supported a finding that the LAUSD allegants [sic] are credible.” The contention lacks merit.

In ruling upon Regan’s mandamus challenge to his dismissal, the superior court conducted an independent de novo review of the record. (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500.) However, on this appeal of the superior court’s judgment denying Regan’s petition, our review is limited to determining whether the trial court’s findings are supported by substantial evidence. (Id. at p. 501.) They are. The record contains more than substantial evidence to support the findings that Regan was an unfit teacher in multiple ways. He failed to develop lesson plans. He did not attend required faculty meetings. He could not control his students and he acted disrespectfully toward them. He was excessively late for work, and excessively absent. He did not follow administrative rules. Numerous efforts were made to help him overcome these problems, but he made no progress. To the extent that Regan denied these claims and argued that LAUSD employees gave biased testimony, the trial court resolved that credibility issue against Regan. That finding is binding upon us. (See Young v. Gannon (2002) 97 Cal.App.4th 209, 225-226.)

Equally without merit is Regan’s challenge to the findings that there was no disability discrimination. The record amply supports the conclusion that with the exception of his July 2001 request for accommodation, Regan failed to properly inform LAUSD, with supporting documentation, of any additional disabilities or to request further accommodation. We therefore reject his argument that the trial court’s judgment permits LAUSD “to discriminate against [him] on the basis of his disability, including refusing [him] accommodation of physical limitations and basing dismissal on charges relating directly to [his] physical limitations.”

Lastly, Regan advances three claims of a denial of procedural due process. In regard to the administrative proceeding, he urges that COPC failed to order LAUSD to submit a witness list before the hearing and that COPC improperly permitted LAUSD to amend one of the charges against him during the hearing. In regard to the proceeding in the superior court, he urges the trial court improperly “ordered a briefing schedule for all parties.” Regan, however, has failed to cite to the specific portions of the record where these purported errors occurred and has failed to support these arguments with appropriate authority. Although Regan is representing himself on this appeal in propria persona, he is not exempt from the rules of appellate practice that require citations to the record and to governing legal principles. Failure to comply with those requirements constitutes a forfeiture of any appellate claim of error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

In any event, our own review of the record disclosed the two points at which Regan claims affirmative error occurred: the amendment at the administrative hearing of one charge and the trial court’s setting a briefing schedule on the mandamus petition. In regard to the former, Government Code section 11507 explicitly authorizes filing an amended accusation. In fact, COPC asked Regan to explain how, if at all, he would be prejudiced by that amendment. Regan was unable to show prejudice. In regard to the latter, Regan did not object to the trial court’s authority to set a briefing schedule, an order that any trial court is clearly authorized to make. (See Code Civ. Proc., § 128, subd. (a).)

DISPOSITION

The judgment is affirmed. Defendants and respondents shall receive their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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^[1] Regan eventually stopped reporting to work at the Local District Office.

^[2] Regan also filed a separate mandate petition in which he contended that he had been deprived of procedural due process at the administrative hearing. The trial court denied the petition. Regan appealed from that adverse ruling. Division Three of this court affirmed the trial court’s judgment. (Regan v. Office of Administrative Hearings, et. al (April 25, 2006, B186078) [nonpub. opn.].)

^[3] At the administrative hearing, Regan submitted a brief to which he attached more than 40 exhibits. COPC conducted a meticulous examination of each exhibit, excluding some and allowing others into evidence. On April 7, 2006, we granted Regan’s motion to augment the record on appeal to include the administrative brief and supporting exhibits. We have examined the exhibits admitted into evidence in considering Regan’s contention that the superior court’s judgment is not supported by the record. Nothing in any of those exhibits alters our conclusion, to be set forth below, that substantial evidence supports the trial court’s decision to uphold the decision to fire Regan.