Mixon v. Fair Employment & Housing Com.

• Decision Date: 24 June 1987
• Citation: 237 Cal.Rptr. 884,192 Cal.App.3d 1306
• Court: California Court of Appeals Court of Appeals
• Parties: , 53 Fair Empl.Prac.Cas. (BNA) 1268 Robert J. MIXON, Plaintiff and Appellant, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Respondent. H001787.

Page 884

237 Cal.Rptr. 884

192 Cal.App.3d 1306, 53 Fair Empl.Prac.Cas. (BNA) 1268

Robert J. MIXON, Plaintiff and Appellant, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Respondent.

H001787.

Court of Appeal, Sixth District, California.

June 24, 1987.

As Modified on Denial of Rehearing July 15, 1987.

Louis D. Silver, San Jose, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Marian M. Johnston, Supervising Deputy Atty. Gen., Henry Torres, Jr., Deputy Atty. Gen., Los Angeles, for defendant and respondent.

BRAUER, Associate Justice.

Robert Mixon appeals from an order denying his petition for a writ of administrative mandamus seeking to overturn a decision of the Fair Employment and Housing Commission (the FEHC or the Commission). The Commission had found that Mixon's employer, the Hospital and Institutional Workers' Union, Local 250 (Local 250), had not discriminated against him on the basis of race when it terminated his employment. Mixon's petition challenged this decision on the ground that it was not supported by the Commission's findings. After reviewing this same question on appeal we have concluded that the findings support the decision. We therefore affirm the judgment. ¹

The Standard of Review

There has been some confusion throughout these proceedings as to the appropriate standard of review both in the superior court and in this court. Mixon's writ petition was brought under Code of Civil Procedure section 1094.5 which provides three grounds for establishing that an agency has abused its discretion: the agency "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." Only the second of these was at issue. ² There was no claim that the evidence failed to support the findings; therefore, a review of the administrative record was entirely unnecessary in the trial court and is not called for here.

The trial judge misconceived the scope of his duties when he observed: "The question is and the only question is whether or not the Commission's decision is supported by substantial evidence and independent review of the record will support that decision." While the court's feeling was that petitioner had been "ill used," and "treated very poorly," the judge nonetheless indicated his intended decision to deny the petition, saying this: "... I think I am legally bound to affirm the--the findings of the Commission and to deny the petition for a writ." There followed a written order denying the writ petition on the basis that "the evidence in the administrative record supports the findings of fact and the determination of issues."

Taking his cue from these pronouncements, Mixon argues on appeal that the trial court erred in applying the substantial evidence test rather than the independent judgment test, and that in either case we must reverse because the court's decision is not supported by substantial evidence. The FEHC contends that the issue before the trial court presented only legal questions, since Mixon had not challenged the Commission's factual findings. The FEHC is correct. It is also correct in its assertion that Mixon cannot now argue the substantiality of the evidence for the first time on appeal. ³

The posture of a case in which the sufficiency of the evidence is not disputed is identical to that where the facts before the administrative agency are uncontradicted. In such a case the only issue concerns the conclusions to be drawn from the pertinent facts; the trial court's determination is therefore a question of law. (Aries Dev. Co. v. California Coastal Zone Conservation Com. (1975) 48 Cal.App.3d 534, 545, 122 Cal.Rptr. 315.) On appeal our review is not circumscribed by the substantial evidence rule, but amounts to an inquiry of law. In essence we treat the appeal as a renewed petition for a writ of mandate. (Swaby v. Unemployment Ins. Appeals Bd. (1978) 85 Cal.App.3d 264, 269, 149 Cal.Rptr. 336, disapproved on other grounds in Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 172 Cal.Rptr. 194, 624 P.2d 244.)

With this in mind, we proceed to the facts, taking our summary directly, and in part verbatim, from the findings of the Commission.

The Facts

In the summer of 1978 Mixon, a black man, submitted an employment application to the San Francisco office of Local 250. In January of 1979 he was informed that there was a position for a business representative available in the Stockton office. Later that month Mixon met with Joan Allen Bryant, the regional director for the Stockton area. During this meeting Bryant asked him if he could relocate to Stockton. Mixon replied that he had just bought a house in San Jose, he was installing a swimming pool, and his wife was a school teacher in San Jose, "but that there would be no problem relocating." Bryant told him that "if the commute from San Jose to Stockton interfered with his work, he would be required to relocate later."

Mixon began work for Local 250 as a business rep on February 12, 1979, servicing the Stockton, Manteca, Modesto and Tracy areas.

Bill Dougherty was the controller of Local 250. Since becoming controller in March of 1978 he had made an effort to reduce union expenses by scrutinizing the expense accounts of the business reps. Dougherty had also instituted a policy of focusing on the finances of each of the union's four regions rather than the northern district as a whole. He was particularly concerned about Stockton because dues in that office were insufficient to cover operating expenses.

Mixon called Dougherty approximately a month after he started to work, to find out why he was not fully reimbursed for meal expenses. Dougherty informed him that the union had certain limits on meal expenses. In the course of the conversation Dougherty "asked [Mixon] when he was going to relocate because he [Dougherty] was concerned about the high commuting expenses. [Mixon] responded that his employment was not contingent upon his relocation to the Stockton area."

Shortly after this conversation Dougherty spoke with Timothy Twomey, the secretary-treasurer of Local 250, about Mixon's failure to relocate. Twomey then called Bryant, who as regional director was Mixon's immediate supervisor, to inquire when Mixon planned to relocate. "Bryant told Twomey that [Mixon's] wife was teaching school, but that [he] would be relocating during the summer...."

Over the next few months Dougherty spoke with Mixon several times, complaining that his gas and mileage expenses were too high and asking when he was going to move. Mixon responded again that relocating had not been made a condition of his employment. He also asked Dougherty why he should move when other representatives who were not black were allowed to commute. Dougherty told Mixon that was none of his business. Finally, Mixon told Dougherty "that Dougherty should talk to his supervisor, Joan Bryant, since he was not hired upon condition of relocation." Thereafter both Dougherty and Twomey channeled their communications to Mixon through Bryant.

Bryant's testimony in this regard was summarized by the Commission as follows: "Bryant testified that on at least three occasions she was told by the Secretary-Treasurer and the Controller that complainant would have to relocate to the Stockton area because of the expense to the local. Bryant later contradicted herself and testified that the Controller only asked why complainant had not relocated. Later in her testimony, Bryant stated that she once received a call from the Controller and that she told complainant that she had been told to tell him to relocate. Bryant further testified that she would tell complainant when she had been called by the Controller or the Treasurer and tell him that they were giving her a 'bad time' about complainant's failure to relocate. In response, complainant would ask why other business representatives were allowed to commute."

The distance between San Jose and Stockton is approximately 77 miles. Mixon lived in north San Jose. He testified that his driving distance was 57 miles each way and that it took him approximately an hour and 15 minutes.

Although Mixon's average monthly auto expenses of $245.16 were the highest of Local 250's thirty-two business representatives, other non-black reps had expenses nearly as high. Representatives Jones and Carnejo who commuted from San Jose to Oakland had expenses of $232 and $185 respectively. Dougherty testified that he had taken no action to cut expenses of Jones or Carnejo because they had been commuting before he became controller. Representative Bratt's expenses were $228. There was no evidence as to how long Bratt had been commuting or the length of his commute.

In addition to these three, the findings listed five other non-blacks, including Dougherty himself, who commuted significant distances. With the exception of Jones, Carnejo and Dougherty, there was no evidence as to how long any of the eight had been commuting, or the exact length of their commutes. None of these people was asked to relocate. Mixon was the only black who commuted a significant distance from home to his job assignment.

Several white representatives who faced significant commutes had been given the option to relocate or resign. These included Zimmerman, Mead, and Crowley. Zimmerman chose to resign rather than move when he was transferred from Fresno to Stockton. Mead resigned rather than move from San Jose to Santa Rosa. Crowley relocated when transferred from Stockton to Fresno. There was no evidence as to how long these three had been employed by Local 250. Bryant was the regional director who had informed both Zimmerman and Crowley of the option to move or quit. In addition Bryant was instrumental in arranging for Charlene Masters to replace Mixon. Masters was transferred from the San Jose office to the Stockton office and was told...