Filed 6/18/20 Ndjongo v. City of Los Angeles CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JEAN NDJONGO,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES, BOARD OF CIVIL SERVICE COMMISSIONERS,

Defendant and Respondent;

CITY OF LOS ANGELES, DEPARTMENT OF AIRPORTS,

Real Party in Interest and Respondent.

B293596

(Los Angeles County

Super. Ct. No. BS170241)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Affirmed.

Jean Ndjongo, in pro. per.; Wyatt Law and Andrew M. Wyatt for Plaintiff and Appellant. [Retained.]

Los Angeles City Attorney’s Office, Michael N. Feuer, City Attorney, Raymond Ilgunas and Patricia Almon-Mor, Deputy City Attorneys for the City of Los Angeles.

INTRODUCTION

Jean Ndjongo, representing himself in the briefing, appeals from the judgment entered after the trial court denied his petition for writ of administrative mandate challenging a decision by the City of Los Angeles, Board of Civil Service Commissioners (the Board) to sustain Ndjongo’s discharge by the City of Los Angeles, Department of Airports (the Department). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Department Discharges Ndjongo

In 2002 Ndjongo began working as an instrument mechanic in the Department’s central utility plant at Los Angeles International Airport. “The job of instrument mechanic is a ‘safety sensitive’ position, because the [central utility plant] contains large industrial machinery which creates extreme heat and steam, and uses dangerous chemicals like acid.”

In early June 2011 the Department placed Ndjongo on paid administrative leave while it investigated claims he had been sleeping on the job and sending emails to his supervisors that created a hostile or unsafe work environment. While the investigation was pending, Ndjongo requested medical leave, effective June 10, 2011. He presented a certification from his doctor stating that Ndjongo was “unable to perform his regular and customary job duties” because of a psychiatric condition. Ndjongo did not return to work before the Department, as a result of its investigation, suspended him for 45 days, beginning in September 2012. Nor did he return to work when, in November 2012, his suspension concluded.

In December 2012 the Department wrote Ndjongo to acknowledge receipt of medical documentation that would extend his leave of absence through February 2013. The letter notified Ndjongo that he had exhausted his protected medical leave, that any additional unpaid leave would be at the Department’s discretion as an interim accommodation, and that the Department was not required to grant him an indefinite leave of absence. In March 2013 the Department, upon receiving medical documentation, sent another such letter extending Ndjongo’s leave through April 2013. And in May 2013 the Department, after receiving additional medical documentation, sent a similar letter extending Ndjongo’s leave through June 2013. In this letter the Department stated it was unclear whether Ndjongo intended to return to work and asked him to clarify his plans.

In April 2014 the Department wrote Ndjongo that it had received medical documentation indicating he could not return to work through May 2014, but that it had not received from him the forms required for requesting additional unpaid leave. The Department reminded Ndjongo he had been on a continuous leave of absence since June 10, 2011, informed him the Department would not approve any more leave extensions, and apprised him of his options, which included contacting the Department to schedule a “Reasonable Accommodation Assessment.”

This Ndjongo did, and in August 2014 he and his attorney met with a Department representative to discuss whether, as a result of a medical condition, Ndjongo had physical limitations or work restrictions requiring a reasonable accommodation. In the meeting Ndjongo stated that he had asked his treating physician, Dr. Karen Baghamian, to provide information on any work restrictions caused by his psychiatric condition and that Dr. Bahamian had deferred responding until after Ndjongo’s next examination, which was scheduled for September. Dr. Baghamian ultimately provided that information on a completed questionnaire dated October 31, 2014. She stated Ndjongo suffered from “severe recurrent major depression, post traumatic stress, [and] psychotic disorder,” which interfered with his job performance because of “severe mental disorder, impaired concentration, impaired coping, depression, history of paranoia [and] delusions, poor insight, [and] inability to cope in a work situation.” As a result, Dr. Baghamian opined, Ndjongo could not perform his essential job functions, with or without reasonable accommodation, and no adjustments to Ndjongo’s work environment or position would enable him to perform the essential functions of the position because “he is not able to function.”

The Department discharged Ndjongo, effective June 3, 2015, for violation of Department rules, failure to perform work assignments adequately or promptly, and unexcused, excessive, or patterned absenteeism. Ndjongo appealed, and in April 2017, after a two-day hearing at which Ndjongo was represented by counsel, a hearing examiner issued a report recommending that the Board sustain all the charges against Ndjongo and sustain the discharge. The Board adopted those recommendations and sustained the discharge.

B. Ndjongo Files This Action

In July 2017 Ndjongo filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, asking the trial court to direct the Board to set aside its decision sustaining his discharge. Ndjongo represented himself in the proceeding. In addition to his petition, Ndjongo filed a motion to augment the administrative record, which the trial court denied.

The trial court denied the petition. The court found that the administrative proceeding was procedurally fair and that the Department did not abuse its discretion in discharging Ndjongo. The court rejected Ndjongo’s contentions the Department did not complete an interactive process with him and did not offer him any accommodation. The court stated, among other considerations, the Department had provided Ndjongo “‘a reasonable accommodation by granting his multiple requests for leave of absence over the four year period beginning June 10, 2011.’” The court also observed, quoting Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 at pages 226-227, that “‘[r]easonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.’” The court entered judgment against Ndjongo, and Ndjongo timely appealed.

DISCUSSION

A. Standard of Review

“An appellate court applies the following standards of review to a trial court’s denial of a petition for a writ of administrative mandamus. First, if the trial court exercised its independent judgment,[ ] we review the record to determine whether the court’s factual findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the court’s decision. [Citations.] Second, ‘to the extent pure questions of law (e.g., jurisdiction) were decided at the trial court upon undisputed facts, a de novo standard will apply at the appellate level.’ [Citation.] Third, we review de novo whether the agency’s imposition of a particular penalty on the petitioner constituted an abuse of discretion by the agency. [Citations.] But we will not disturb the agency’s choice of penalty absent ‘“an arbitrary, capricious or patently abusive exercise of discretion”’ by the administrative agency.” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627-628, italics & fn. omitted; see Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 283 [an agency’s penalty must be upheld where there is “any reasonable basis for doing so,” and “‘[i]t is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown’”].)

B. Ndjongo Has Not Shown Any Error

The Department complains it is “virtually impossible to respond meaningfully to [Ndjongo’s] Opening Brief” because it lacks citations to the record, relies on evidence not in the record, “veers into unrelated tangents,” and “makes cryptic or non sequitur statements throughout.” The Department’s complaint is well-taken, and the defects the Department cites are grounds for affirming the judgment.

“A cardinal rule of appellate review is that the judgment or order of the trial court is presumed correct and prejudicial error must be shown.” (Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210, 226; accord, Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) “‘To demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.’” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; see County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443 [“the appellant must identify each order that he asserts is erroneous, cite to the particular portion of the record wherein that ruling is contained, and identify what particular legal authorities show error with respect to each challenged order”].)

We acknowledge a self-represented litigant’s understanding of the rules on appeal is likely more limited than an experienced appellate attorney’s, and whenever possible, we will not strictly apply technical rules of procedure in a manner that deprives a litigant of a hearing. Nevertheless, we must apply the procedural and substantive principles and rules of appellate review to a self-represented litigant’s arguments on appeal, just as we would to litigants represented by attorneys. (See In re Marriage of Furie (2017) 16 Cal.App.5th 816, 824; Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1413.) Because Ndjongo has not provided cogent arguments, adequately supported by legal authority and citations to the record, he has failed to show any prejudicial error. We therefore presume the judgment is correct.

Moreover, to the extent we can discern intelligible arguments by Ndjongo, they are without merit. For example, he appears to suggest the Department abused its discretion in discharging him because “[t]here was no evidence that [he] was unable to return to work.” But there was. After Ndjongo had been absent from work for more than three years because of, among other health issues, his psychiatric condition, Dr. Baghamian reported in October 2014 that he was still “not able to function” and that no reasonable accommodation or adjustment to his work environment or position would enable him to perform the essential functions of the position. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 226 [“a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”].)

Ndjongo also appears to challenge his discharge on the ground the Department issued the notice of discharge—dated May 21, 2015—one day after Dr. Baghamian issued a “Work Status Report”—dated May 20, 2015—that cleared Ndjongo to return to work, with “modified activity,” beginning in July 2015. But Ndjongo does not explain how this circumstance rendered the Department’s decision to discharge him an abuse of discretion, particularly when (a) the Department did not receive Dr. Baghamian’s May 20, 2015 report until June 23, 2015, i.e., three weeks after the effective date of his discharge (June 3, 2015); (b) the report did not fully (or immediately) clear Ndjongo to return to work; and (c) the report was virtually devoid of detail about Ndjongo’s condition, referring merely to his “chronic medical condition that effects [sic] . . . function,” and did not provide any explanation for the change in Dr. Baghamian’s opinion from October 2014 (when she said Ndjongo could not function and could not work even with reasonable accommodations) to May 2015 (when she cleared him to work with modified activity).

Ndjongo also asserts the trial court “refused to allow [a] continuance for [him] to speak on his damages and losses,” “cut off [his] due process rights to be heard,” and “refused to inquire into [his] prepared documents and declaration.” To support these assertions he cites to one page in the reporter’s transcript of the hearing on his petition. But review of that page, and indeed of the entire transcript of the hearing, reveals nothing but patience and fairness on the part of the trial court in affording Ndjongo an opportunity to argue his case and to be heard.

DISPOSITION

The judgment is affirmed. The parties are to bear their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

DILLON, J.*

Parties and Attorneys
Ndjongo v. City of LA Board of Civil Service Commission
Division 7
Case Number B293596
Party Attorney

Jean Ndjongo : Plaintiff and Appellant
1180 N. White Ave.
Pomona, CA 91768

Andrew M. Wyatt
Wyatt Law
20750 Ventura Blvd.
Suite 440
Woodland Hills, CA 91364

City of LA Board of Civil Service Commission : Defendant and Respondent
Patricia K Almon-Mor
City Attorney’s Office
1 World Way
Los Angeles World Airports
Los Angeles, CA 90045