Filed 11/2/18 Broussard v. City and County of S.F. Mun. Transportation Agency CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Kathy L. Broussard raised claims of discrimination and harassment based on her race and gender that were investigated and denied by her employer. After the Civil Service Commission (CSC) denied her appeal, she challenged its decision by a petition for writ of administrative mandamus. She now contends the trial court erred in denying her writ petition. We affirm.

BACKGROUND

Appellant began working for the San Francisco Metropolitan Transportation Agency (SFMTA) in November 2006, in the Proof of Payment Unit (POP), a unit within the Security, Investigations, and Enforcement Unit (SIE) of the Sustainable Streets Division (SSD). She started as a “9132 Transit Fare Inspector,” supervised by Robert Wolfgang, who was then the POP Manager. In 2011, Wolfgang left and was replaced by Chris Grabarkiewctz. Appellant was promoted to the position of “8121 Transit Fare Inspector Supervisor” in August 2013. In late December 2013, the Director of the SIE, Leanora Militello, upon her retirement, appointed Grabarkiewctz Acting Director of the SIE and appellant Acting POP Manager. Militello warned appellant that her transition to the acting manager position would be difficult, as there would be envy due to her supervising former peers.

Appellant, who is African-American, maintains that beginning in December 2013, she was subjected to “sexual harassment, racial discrimination, retaliation and harassment” by three Caucasian men: Grabarkiewctz and employees Larry Parish and Lawrence Nichol. The alleged conduct by Grabarkiewctz included sexually suggestive comments, racially offensive comments and epithets, threats of retaliation for appellant’s reports to EEO, instigating disciplinary investigation for appellant’s use of a city vehicle, which appellant maintains Grabarkiewctz authorized, and revising the minimum qualifications for the POP Manager position to ensure appellant would not qualify; other alleged conduct involved outbursts of rage by Nichol, who claimed Grabarkiewctz had promised him the POP Manager position to which appellant was appointed, and Parish calling appellant a bitch. Appellant first contacted SFMTA Equal Employment Opportunity (EEO) staff about alleged harassment in March 2014. Emails from EEO staff in the fall of 2014, indicate that although concerned, they did not believe appellant’s reports to that point showed harassment or discrimination.[1]

When the permanent POP Manager position was posted in March 2015, appellant complained to EEO Programs Senior Specialist Maria Valdez that she believed Grabarkiewctz had changed the minimum qualifications to render her unqualified for the job.

On March 23, 2015, appellant sent a lengthy email to Valdez alleging that Grabarkiewctz’s conduct had created a hostile work environment, which Valdez forwarded to the Equal Employment Opportunity Division of the Department of Human Resources (DHR EEO). The complaint was assigned to Erin Levy for investigation, and she met with appellant on April 7, 2015.

On May 22, 2015, appellant was informed that she would not be offered the permanent POP Manager position. On May 20, 2015, she had received an email from the SSD administration manager asking her to vacate her office so that the newly selected POP Manager (Kathleen Zierolf) could move in. She asserts that she was not assigned a new workspace, and that “the mistreatment, stress and embarrassment forced [her] to take off work until late June into early July.”

In July 2015, appellant was assigned to a new manager and relocated to a different floor of the building. She was contacted by an investigator from the office of the district attorney and asserts she was interviewed without union representation about her use of a city-owned vehicle which she maintains Grabarkiewctz authorized her to use when she was appointed to the acting manager position but Grabarkiewctz denied having authorized.

In August 2015, appellant added to her EEO claim that Grabarkiewctz subjected her to “harassment/hostile work environment based on [her] disability (extreme stress).”

An August 28, 2015, the SFMTA Director of Transportation (Director) informed appellant that the DHR EEO would investigate her claims with regard to specified incidents of alleged harassment/hostile work environment based on race, ethnicity and sex, discrimination/disparate impact based on race, ethnicity and sex, and retaliation. Other enumerated claims were to be administratively closed, including the claim of discrimination in filling the permanent POP Manager position. Detailed explanations were provided, and it was stated that some of these claims would be referred to the SFMTA’s Human Resources Department “for further review and appropriate corrective action” because, although the alleged conduct was not based on appellant’s membership in a protected category and/or create an abusive work environment, it would, if true, violate the City’s “Policy on the Treatment of Coworkers and Members of the Public” (Coworkers Policy).

On September 17, 2015, appellant filed an appeal with the CSC regarding the administratively closed claims.

The investigative report, dated December 3, 2015, comprises 75 pages, plus some 384 pages of exhibits, including Levy’s notes from interviews with 23 witnesses. A letter from the Director, also dated December 3, 2015, informed appellant of the results of the investigation.

With respect to the claims against Grabarkiewctz, the letter explained, “You are a member of protected categories based on your race and ethnicity (African American), sex (female), and disability (extreme stress). However, although the investigation established that it is more likely than not that many of your allegations occurred as you alleged, the evidence is insufficient to establish that Mr. Grabarkiewctz’[s] conduct was because of your protected status, and instead appears to be due largely to Mr. Grabarkiewctz’[s] management style and lack of communication. Therefore, the investigative findings did not support your harassment/hostile work environment claim.” The letter explained why appellant’s allegations regarding racial comments and various other conduct were found unsupported. Regarding conduct based on sex, it was determined that although certain alleged conduct “more likely than not” occurred, the incidents were not sufficiently severe or pervasive to create an abusive work environment, but corrective action would be taken for Grabarkiewctz’s violation of the SFMTA and city “Harassment-Free Workplace Policy” (Harassment Policy). Similarly, while it was found “more likely than not” that Grabarkiewctz had “balled his fists at his sides and yelled” at appellant as alleged, the evidence did not establish it was based upon appellant’s membership in a protected category because Grabarkiewctz engaged in such conduct with “nearly all of the POP employees,” and corrective action would be taken for violation of the Coworkers Policy.

Appellant was informed that it had been found more likely than not that Parrish called her a “bitch” at least once, as alleged, and corrective action would be taken for this violation of the Coworkers Policy and Harassment Policy, but the isolated comment did not amount to harassment based on sex or create an abusive work environment, and as Parrish’s supervisor, appellant had authority to address the conduct but did not do so.

Appellant appealed the Director’s decision to the CSC. After a hearing on April 4, 2016, the CSC denied the appeal.[2]

Appellant filed her petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) on June 21, 2016, an amended petition on July 22, 2016, and a second amended petition on November 28, 2016. The second amended petition asserted a claim for negligence, alleging that the CSC rendered a decision in favor of SFMTA despite being informed that the investigation of appellant’s allegations of harassment, discrimination, and retaliation did not include several witnesses who had knowledge (namely Rod Goree, Mariana Valdez and Kim Holman), that testimony from two witnesses (Dayce and Wolfgang) directly supporting appellant’s claims were “taken out of the investigation,” and that SFMTA waited a year after appellant’s initial complaint in March 2014, before initiating an investigation. A claim for breach of contract alleged that the CSC abused its discretion by not considering appellant’s evidence “in its totality,” in violation of her employment rights.[3] Appellant sought a writ of administrative mandamus compelling the CSC to set aside its decision based on incomplete investigation and require the CSC to have the SFMTA and DHR EEO investigate additional witnesses “that were left out of the investigation and who were legally responsible for investigating plaintiffs initial EEO complaint(s) in their entirety.”

Prior to hearing on the second amended petition, scheduled for January 17, 2017, counsel for the CSC noticed that appellant had not filed a supporting memorandum as required by the rules of court (Cal. Rules of Court, rule 3.1112(a)) and contacted appellant, who said she intended the memorandum she had filed in support of her previous petition to be the operative memorandum. Counsel explained that a memorandum was required for the amended petition, appellant said she would re-file her memorandum, and counsel agreed to move the hearing to January 31 to enable appellant to do so. Appellant filed a memorandum on December 29, 2016, but, instead of addressing the merits of the writ petition, it supported appellant’s motion to amend the writ petition, which had already been granted.

The court issued a tentative ruling denying the petition on the grounds that appellant failed to provide a supporting memorandum; the gist of the petition was that the CSC erred because it was not aware of information from Wolfgang and Dayce, but the record showed that these individuals were interviewed; and the CSC did not conduct the investigation, only relied on information it was given.

At the January 31, 2017 hearing, appellant argued that throughout the case she had tried to explain that witnesses in addition to Wolfgang and Dayce had not been investigated, and that her complaint regarding Wolfgang and Dayce was that the agency left out some of their information “to make it look less pervasive,” not that these individuals had not been interviewed at all. She told the court that the records showed her complaint was made in 2015 but in fact she made it in 2014, and there was no investigation of the first two people she contacted, who had information from 2014.

The court asked appellant if she wanted to file another memorandum because the one she had filed “didn’t actually support” the petition. Appellant responded only that she understood her error. When the court asked the deputy city attorney about the “other” arguments appellant was making at the hearing, counsel replied that the arguments were contained in the petition itself and had been addressed in the CSC’s opposition. Pointing to the voluminous record, and stating that without a memorandum and citations to the record, she had difficulty responding to all of appellant’s allegations, counsel told the court, “I would bet money that those people were either interviewed or were in some way contemplated . . . during the investigation. It was an exhaustive investigation.” The court again asked if appellant wanted to file a memorandum and she again said she understood her error, then assured the court that the witnesses she mentioned had not been interviewed. Appellant stated, “But if this is the end of this process and I can just proceed to court for the way I was treated, I don’t appreciate it.”[4]

Counsel for the CSC at this point argued that even if the witnesses appellant was discussing had not been interviewed, it was the job of the CSC to ask DHR why they had not been interviewed, and the only question for the court was whether the agency’s decision was supported by the weight of the evidence.

The trial court denied the second amended petition in an order stating, “Plaintiff fails to provide a memorandum of points and authorities in compliance with CRC 3.1112 that supports the instant motion. Upon reviewing plaintiff’s Second Amended Petition, the gist of plaintiff’s claim is that defendant erred because it was unaware of information from Mr. Wolfgang and Mr. Dayce. The record belies this assertion. Ms. Levy interviewed those witnesses (AR 00654, 00657, 00886, 00892.) In addition, defendant did not conduct the investigation; it merely relied on the information that was presented to it. In sum, plaintiff fails to show that the weight of the evidence does not support the defendant’s decision. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Angelier v. State Board of Pharmacy (1997) 58 Cal.App.4th 592, 597.) Judgment was entered on January 31, 2017.

DISCUSSION

On a petition for administrative mandamus, the question for the trial under Code of Civil Procedure section 1094.5 is “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).) In the present case, the trial court was called upon to exercise its independent judgment “upon the weight of the evidence produced or which could not, in the exercise of reasonable diligence, have been produced before the administrative agency and any evidence which might have been improperly excluded by the administrative agency.” before the agency.” (Bixby v. Pierno, supra, 4 Cal.3d at p. 143 & fn. 10; § 1094.6, subd. (c).) On appeal, we “review the record to determine whether the trial court’s findings are supported by substantial evidence.” (Bixby. at p. 143, fn. 10.)

Furthermore, “ ‘[a] writ of administrative mandamus will not be issued unless the court is persuaded that an abuse of discretion was prejudicial. [Citation.] In other words, the reviewing court will deny the writ, despite abuse of discretion, if the agency’s error did not prejudicially affect the petitioner’s substantial rights.’ (1 Cal. Administrative Mandamus [(Cont.Ed.Bar 3d ed. 2012) Court’s Scope of Review Under Code. Civ. Proc.] § 6.95, p. 233; see Leal v. Gourley (2002) 100 Cal.App.4th 963, 968–969 [notice that failed to advise of right to an interpreter caused no prejudice, because appellant already had been advised of his right to an interpreter].)” (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.) “ ‘[A]ppellant bears the duty of spelling out . . . how the error caused a miscarriage of justice.’ ” (Ibid.)

Appellant has not met her burden of demonstrating prejudicial error. Her second amended petition, and her briefs on appeal, make clear that her challenge is to the adequacy of the investigation into her claims of discrimination and harassment. She argues that several witnesses who would have been favorable to her were not interviewed; that two witnesses who were interviewed and supported her claims were “taken out of the investigation”; and that SFMTA waited a year after her initial complaint in March 2014, before initiating an investigation. Appellant has not shown any reason to believe the result of the investigation, or the administrative decisions, would have been different in the absence of these alleged deficiencies.

The two witnesses whose evidence appellant contends was “taken out of the investigation”—Wolfgang and Dayce—were extensively interviewed, the December 2015 investigative report concluded these witnesses lacked credibility (with a detailed explanation), and appellant was so informed in the SFMTA’s denial letter. Appellant has offered no reason to believe this determination was unsupported.

The three witnesses appellant maintains were not interviewed are the EEO staff members to whom appellant first complained about her treatment by Grabarkiewctz and others.[5] She has indicated nothing about the substance of the information she believes these witnesses could have provided except to state that they were in possession of information from 2014, while the investigation did not begin until 2015. These were not percipient witnesses to any alleged incidents of discrimination or harassment; the information they could have provided would necessarily have been limited to what they were told by appellant about such incidents, and how they responded to her reports. The fact that appellant’s contact with EEO concerning her treatment by Grabarkiewctz and others began in March 2014 is documented in the record: The investigative report and letters from the SFMTA Director make clear that appellant first contacted EEO staff about Grabarkiewctz in March 2014, and the record includes emails between appellant and the EEO staff members from the fall of 2014. Appellant does not suggest what information she believes could have been supplied by these witnesses that was not otherwise reflected in the record.

To the extent appellant’s focus on these witnesses is to make the point that the SFMTA waited too long before treating her complaints as a formal claim of discrimination or hostile work environment, she has not supported the point with any argument. The record includes at least one email communicating to appellant that in the fall of 2014, EEO staff members Goree and Valdez were of the view that “this is not (yet anyway) discrimination.” In March 2015, responding to an email from appellant stating that Grabarkiewctz worked with specified others “to create a hostile work environment and to give the appearance that working in POP was intolerable,” with a lengthy description of incidents, Valdez responded, “Ok, it appears your alleging a ‘hostile work environment’. Based on our previous conversations, I will assume it is based on your race and gender(?). [¶] If this is true, then I will forward your complaint to DHR, as I am required to do.” It thus appears that EEO staff did not act immediately upon appellant’s earlier complaints because they did not believe them to meet the threshold for a claim of harassment or discrimination.

Appellant’s briefs appear to be premised on a view that failure to interview the EEO staff members in itself proves that the investigation was not “exhaustive.” It does not. As we have said, appellant has not shown how any information from these witnesses would have altered the assessment of her claims. Appellant’s suggestion that the trial court erroneously relied upon the “testimony” of respondent’s attorney that she would “ ‘bet money’ ” the witnesses were investigated, rather than reviewing the administrative record to see that they were not interviewed, is beside the point. First, counsel’s comment was argument, not testimony,[6] and her “bet” was not simply that they were interviewed but that they were “either interviewed or were in some way contemplated . . . during the investigation.” More importantly, as we have said, the fact that these witnesses were not interviewed would be meaningful only if there were a basis for concluding that they had information to offer that was not otherwise reflected in the record.

In fact, the record reflects an extensive investigation of appellant’s claims, resulting in a determination that appellant had been subjected to treatment that violated workplace policies regarding treatment of coworkers but did not involve discrimination or harassment on the basis of race, sex or disability. Appellant has not demonstrated any reason to believe that an investigation begun earlier or including interviews of the EEO staff with whom appellant first communicated would have led to a different result.[7]

DISPOSITION

The judgment is affirmed.

Costs to respondent.

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Kline, P.J.

We concur:

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Richman, J.

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Miller, J.

Broussard v. City and County of San Francisco Municipal Transportation Agency (A151246)