Preview
e eo onmNeNAa
John Hsu
P. O. Box 1255 aq te
CA 94701 o | Ee ie
Berkeley,
WN
H: (510) 841-5992 ’ Bea
ALAMEDA tCOUUNTY
Ww
Nov 9 5 2003
&
epee . efuOR COURT
Plaintiffin pro per CLERK OF Oa he jin
ws
By Deputy
SUN
SUPERIOR COURT OF CALIFORNIA
oo
COUNTY OF ALAMEDA
\O
10
11 JOHN HSU, ) caspno:RG03125579
)
12 Petitioner, )
+) COURT’S EXHIBITS I AND II;
13 v. )
) EXHIBITS A - K;
14 )
DIRECTOR, CALIFORNIA ) DTSC’S EXHIBITS L - G1;
15 DEPARTMENT OF PERSONNEL )
ADMINISTRATION, ) FROM:
16 )
Respondent. ) ADMINISTRATIVE PROCEEDING
17 -) BELOW, DPA CASE NO. 03-H-0016,
) HSU V. DTSC.
18 CALIFORNIA DEPARTMENT OF )
TOXIC SUBSTANCES CONTROL, )
19 ) Trial Date:
Real Party in Interest. ) Time:
20 ) Department:
21
22 Exhibits B -F were submitted by Appellant John Hsu, Exhibits L - G1 were submitted
23 by Respondent DTSC, in the administrative proceeding below, DPA Case No. 03-H-0016, Hsu
24 v. DTSC.
25
26
27
28
Court’s Exhibits I & If;Exhibits A - G1; from Administrative Proceeding Below, DPA Case No. 03-H-0016.
‘Coart vl Ese
can
gy.} Gev tedke Mieqat-s9e9 2 @ ( bytes At hated
wok | DPAR ake 598 29
” STATE OFCALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS
EXBIBIT/WITNESS LIST 7003020863
[emt 7 OF Tose VEST: Casita) ys)
COMPL: ATTY/REP: eM HWE ; a . RESP. ATTIRED PED FER ; LD | EVID
Rebone and Aupivalend bl HV| + at Ayaeals Gteelnar (67| sn Ae
2008 fea? Ayprajsal’ —! |szl ed» Pecumame Bal. 1] V
> bpplal pf Yor Lawak \e7| | ° ze" oleae ley || 7
+ Reastid frchogoeal” et |v > Strakegic Fon Cine eds 00)1]
= Momps 246-02, 0-101 Fasmadls || * Core “tele memp FAS || cont
* $4-0b Mem Coupotns ba Wh *Setof Pub Fipraicel Go ET) VI
2"Cadena, | esr ets alfa \xet| “| ° 2002 DBA Doce + reams ref |
* Wailmuuage 5 ene fe ir se] V | Job Secs ChopBt TE |
baBackground by Levee’ t-y-oL Walle|» Mev BZA.
© Cyanicle Bictobar Aube. eure | BPA Empl Log Fil ef)
= Rone th Etopine Laphoay 2G | <* 2a fi Moye of Te E]| A
LAA Gren
Gs water anbrcle
d yea eK | + Stammns Moy bH OLA
"email Lewrd £1422 pkelea| ref |a Bua Hery wivewhnnais|523| ~~
Email bewig Hog 7-22 |g ee, "4B 03 Mom) 1 cownpup >|
Duet Chan td hyalpbicd WK l iD) V2 & 3-02 Manarctien yung Al 7 |
« PA atcle b-pd0r Pidae2ley] &3 Mevy Butoh, |FA @
= reap? Ans Fool bat alt |? 6202 Cuil, (eae:
* CE Lemptot azluey eo) {| * btn tvle Keae htt ch A v
Kegel Lap. Chyaciejric Rawtyy gy | (A $602 e rail Stabe he Al |
» belturnin of Site A202| | tel |»Reactitty AbIog ty) ppd 2 A
» 2-43-02 Jeu: Neste litlew Stal eal A | S207 2 nt Hol Udeg al
= Tnblne ea V 472-02. 58 32 cn fe ! eal VI.
= nal He] Fwpeng AGED pad) |» Ter A 22 Crichinel enyeel_
* CevRTS BMteB TTS Tit HAA A1G01 eal Hs [masFal) A
a Lipari S| OD 42602 Drarrvatinn D2 2)
ay rMinygs Mi tect Heb Fa FH Gl kL: AOL Leyeal SO 32.wtmg 2)
Peeis tp Pur ArAn
9)
Maj
aL158 22 z
Yoe-oa =
ae Cé
Je 2 !
of. Fi 2b eval
¥T
bh
BNE H!E:He melia
said al
ite.
B
‘oa
mea
d
EZ 4. ‘Dees ee Be
By 1G Chat
FAL: m
e- wto ee Q —13.
ez bOP,
|
4D. Dynes Bp Ph
E4aE Bis [Ap
yb Keo eid ia
‘—.
i
a
ge
AS IRL.
e-may Tipatshao t
[x4kiby ¢ lesae GIWY4
vr 3 La
“Miet 5-02 Dhn: s les.
eT) ci yy4) Hse Fal Hes:
FaleUn \F2-
[Tilo th
a ey
za y EZ
| AwYe DOL Suppl
{ ? COU mo
p24
r
| joi We
$9 teal e
._ ee. @&
"WATE OF CALIFORNIA OFFICE OF ADMINIS TRATIVE HEARINGS
EXHIBIT/WITNESS LIST .
OAH-23 (REV.12/93) oo OW. hesi 8 43
=
. AGENCY NAME:
na C-najl BOF Sc abae a
ref A.
+40 C-wall_ 1-402 200% wis |ealey |»
26 wedi 17103 printer fe Ne 4c
+8 Cmai] Halda S LTT OZ _ Ez I
783 a |
le
[+24 38 32 alone 6 ble -24He
|
: \
[EIS 41202 _I950es Br Dizevxigqral _
NON
[ie 510 32 Bill Pradysts Fon
\
PE]. Dre mow fo BL 4% Fak
N
269 _Eph Fibs magtnly 4-26
eh
6
=]
Ly 04 crea Rotem Mbp ODLi3 \iexz
Ts
4p fi \chaueld Lit 2nd, VA. 7
29) 4-01. Moats 2s dale 2A
a P
E4
NN
\
war feat nittiaael momen (52,1 | *
AE ie wail G2302. 7 aL)
xtan 54 zi A) Ett Dima 2PM 2
YG rate We _TAOL ere)
8, ra ou 5-28-92 S832" Screaniae o Bs" jor} . qs .
HOS teFr Coed? yah mio p21
\]
A. 44 6-1-0, isa, Mhmgals Raney [6-1
i<
ZOD A iOL. Mop te bande |p22
SLs
IO) b1S-02 ynomp foi Guestews _|FX
F102 b-1462-iewy phi‘inks Home Mmal
F108 0-120 nowt
osa
EPA mene’ ou
| “14 J-2S-02 Ws5uls summary A-N
eo @
“STATE OF CALIFORNIA a OFFICE OF ADMINISTRATIVE HEARINGS
EXHIBIT/WITNESS
OAH-23 (REV. 12/93) -
LIST - hfs /
_ uy $2
‘COMPL. ATTY/REP:
ia Litstuak rept |
¥ ity Keactonty aiee q-ptt |
? 0 Pai glia
F108 O-20-0. Simmons “Yo ou
#104 Ny 47ROL- of kn
Vd Ante Biblonatby w-h-ov len
Zyl Aegositi Bebe wl
[xi Sf wf cm
PUD Lynil WASTE bs Yi
& (4 lo-Tep2- L. stops Jeg gin
US atte Eabmes lab lpr Keal ray
Pb 2/02 to mim Libied.
FT Kegs dipa- eZ re |
HS Tenspot ab Haz Dt }Regs |
Eada LOFRCL Aeacthly ZOP
lar Perl Yn [her bebe
iL Wyman gw, FA _b24
23425 Com quits ey fence _b-224
F pA Aad RG: tm LY a Bis. 7 oH |
229 Meng iD ) bombing S2u
PY }27920L (etced Zeunning Ah GI y
FIZY Ketcle- PD. a
nd ad Hihy gr Ceahide hewnonn g |FD (ejv
(24 LY peyew “Gite [273 at
SB i
v
—
| *) ap email thee Bemntna jPBAL RDI
Tae, “at he
ae ELH
LIST t4A0L em
ate
;
Boe |
Galen
a:May7Prehearing May 7, 2003
5/7/03 Prehearing Conference
Taking Official Notice
Government Code sections 19992 - 19992.4’
2 CCR 599.798
Exhibits
Respondent’s
Exh. No. .Description
A DPA’s Statutory Appeal Hearing Guide
B _ .BPS’s 1/29/03 performance appraisal for JH
C DTSC 3/19/97 Zero-tolerance policy on assaults, intimidation, threats and
-harassment (Revised); Administrative Directive DO 2-97-1. Definition of
“Harassment” is on page 2.
D DTSC 2002 Strategic plan; “OUR VALUES” (— leadership,
accountability, integrity, objectivity, quality, professionalism, <. .)on page
3 of Executive Summary
E DTSC 3/29-30/01 Executive Staff Offsite SUMMARY; Bates-stamped
. 000947. DTSC’s governing principles are law, science and common
sense.
FO Set of three Bob Borzelleri memoranda on Performance Appraisal; dated
6/16/00, 6/13/01, and’8/26/02
- DPA Case'No.
1 : . -=—-03-H-0016-----=
-Hsuv.DTSC |
. Exh.No. 256»
DPA decisions in DPA Case No. 01-H-0132, dated 12/31/02; JH’s 1/23/02
letter to DPA Director Marty Morgenstern; DPA’s 2/21/03 response; JH’s
4/6/03 fax to Linda D. Buzzini; JH’s 1/26/03 Request for Rehearing or
Reconsideration; DPA’s 4/11/03 Order Upon Reconsideration
Job specification for JH’s current position, Public Health Chemist I
(Specialist)
MOU between California Association of Professional Scientists
(representing Unit 10 employees) and the State of Califorma
DPA’s computer printout of JH’s employment history
DTSC 4/23/03 “Second Amended Notice of Hearing”
Appellant’s
Exh, No. - Description
JH’s qualifications; Research Scientist [V Application; three publications
(Anal. Chem 64, 434-443 (1992); review chapter in book 1996 book on
“applications of LC-MS in environmental chemistry’; J. Contam. Hydrol.
51, 163-178 (2001)); two recognitions (7/25/97 e-mail from Brad Parsons
to Bart Simmons; 1997 DTSC Superior Accomplishment Team Award)
Comparison of year 2000 performance appraisals for JH and CD
JH’s statutory appeals of year 2002 performance appraisal submitted to the
DPA (12/3/02; 2/23/03)
JH’s “Reasons for appeal”
Leslie Frye 2/15/02 memo to Mark Hutchinson, on “Response to Margaret
Lamb’s memorandum,” top page, Bates-stamped AGO-004449; Ivory
Mitchell’s 10/15/01 memo on “Findings on the June 10, 2001 incident, re:
Dr. John Hsu,” top page, Bates-stamped AGO-004450
.BPS’s memoranda
9/3/02. wiHisudimen
6/1 0/02, :
ertaioa
8/1 6102.
“ 2
Ave
9/13/02: °~
COURT’S EXHIBIT I
BEFORE THE
DEPARTMENT OF PERSONNEL ADMINISTRATION
| STATE OF CALIFORNIA
In the Matter of the Appeal of Performance
Appraisal of:
Case No. 03-H-0016
_ JOHN HSU,
Public Health Chemist II, OAH No. N-2003030983
Appellant,
DEPARTMENT OF TOXIC SUBSTANCES |
CONTROL,
Respondent.
PREHEARING CONFERENCE ORDER
. Administrative Law Judge Stephen J. Smith, Office of Administrative Hearings, State
of California conducted a Prehearing Conference in this matter in Sacramento, California on
May 7, 2003.
Linda Y. Chang, Senior Staff Counsel, represented the Department of Toxic
Substances Control, State of California.
Appellant John
Ic Hsu represented himself.
The parties each submitted Prehearing Conference Statements together with proposed
exhibit and witness lists. Issues raised in the Prehearing Conference Statements and in
several submissions in advance of the Prehearing Conference were litigated, stipulations
made, and exhibits were marked. The Prehearing Conference was tape recorded.
1. The Administrative Law Judge clarified and confirmed the ruling regarding
the applicable procedural law governing this appeal set forth in the Administrative Law
Judge’s Order of April 29, 2003; The Administrative Procedure Act (“the APA”) does not
govern these proceedings, and will not be applied.’ These proceedings are statutory appeals
proceedings governed by the statutes, rules and procedures of the Department of Personnel
Administration. The governing statutes are Government Code sections 19999.1-19999.4.
'Government Code section11410.50. : : SO a
: DPA Case No. ~~
_ .03-H-0016
' Hsuv.DTSC % i
Court’sExh. I
i
The primary governing authority for this proceeding is Title 2, California Code of
Regulations (“CCR”) section 599.798, also known as DPA Rule 599.798. A copy of the
Rule was marked as an exhibit, and the Administrative Law Judge took official notice of
both the statutes and the Rule/regulation. DPA has enacted and published a series of ©
additional Rules construing Rule 599.798, to govern the conduct of statutory appeals such as
this one. These Rules contain the governing procedure for the conduct of this appeal. The
Administrative Law Judge marked a copy of the Rules as an exhibit, and the Administrative
Law Judge officially noticed these rules as well.
2. The statutes, regulations and Rules do not provide any employee the right to a
full evidentiary hearing on an appeal.of a performance evaluation the employee finds
unsatisfactory. The nature of the review can range from a strictly documentary review
without witnesses, to permitting oral argument, to a limited evidentiary hearing, in the
discretion of DPA. In this instance, a strictly limited evidentiary hearing will be provided,
allowing for the testimony of two witnesses and the review of a limited set of documentary
evidence, as outlines during the Prehearing Conference and in this Order.
3. Only in the absence of a DPA statute or Rule applicable to any specific issue
will the Administrative Procedure Act formal adjudication rules (Government Code section
11400, et. seq.) be, in the exclusive discretion of the ALJ, referred to for nonbinding ©
guidance. Some of the DPA Rules for the conduct of this appeal specifically incorporate
certain provisions of the APA, such as the APA hearsay rule, Government Code section
11513. Those specifically incorporated APA provisions will be applied, as set forth in the
‘Rules.
. 4. The discovery provisions of the APA are not applicable to these proceedings,
nor are the provisions of Government Code section 11450.50 regarding the production of
witnesses. Section 11450.50 applies only to hearings required to be conducted according to
the APA.”
. 5. Dr. Hsu’s pending Notice to Produce Witnesses and Documents pursuant to
the authority of Government Code section 11450.50, and counsel for the Department of
Toxic Substances Control (“DTSC”)’s motion to Quash the Notice and for a Protective Order
were resolved by a combination of the ruling above regarding the inapplicability of the APA
to these proceedings, and determination of witnesses from the parties’ list of proposed
witnesses who will be permitted to actually testify atthe evidentiary hearing. Section
11450.50 does not apply to the production of documents from an agency, as contended by
Dr. Hsu. The Notice to Appear to witnesses portion of the Notice is inapplicable. The
witnesses who will appear are set forth below, and DTSC has agreed to produce Dr.
Simmons, the key DISC witness. The ALJ advised Dr. Hsu that there is no need to continue
his efforts to subpoena any other witnesses whose attendance was sought by the Notice to
Produce Witnesses pursuant to Section 11450.50.
2 Government Code section 11450.05
6. Dr. Simmons, the author of the performance evaluation at issue, and Dr. Hsu
will be the only witnesses permitted to testify at the evidentiary hearing. No other witnesses
will be permitted to testify, unless good cause is shown to permit the testimony of another
witness. Good cause will be strictly and narrowly construed, and will be found only where
there is a showing that the proposed witness’ testimony isrequired to address an unknown
and unanticipated situation that developed during the course of the evidentiary hearing.
7. Official notice was taken of the DPA decision in Dr. Hsu’s 2002 appeal of his
performance appraisal. The underlying record was not officially noticed, and Dr. Hsu’s
request that the record of the proceedings be officially noticed was denied. The decision in
the 2001 appeal filed by Dr. Hsu of his performance appraisal-was not officially noticed, as
the matter was decided on procedural grounds and not on the merits of the appeal.
8. Mr. Hsu’s request that official notice be taken of the records of his pending
EEOC proceedings, pending Alameda County Superior Court action against DTSC, and his
U.S. District Court, Northern District of California action against DTSC are each denied.
These pending litigation matters are irrelevant to the issues pending in this appeal, which is
limited to an inquiry of whether the ratings and comments made by Dr. Hsu’s supervisor in
his 2002 performance evaluation were fair and accurate reflections of Dr. Hsu’s work, or
whether any or all of the ratings and comments were made to abuse, harass or discriminate
against Dr. Hsu.
9. “Negative memos” offered by Dr. Hsu will be considered only to the extent
Dr. Hsu can show the author of the performance appraisal was aware of the memo,
considered and relied upon it in the making of any specific rating or comment contained in
the appraisal. There appear to be nine such memos, listed in Dr. Hsu’s exhibit list. Dr. Hsu
, 1s i the process of copying these memos, and will produce them to counsel for DTSC and
the ALJ in ten days time from the Prehearing Conference.
10. The period of inquiry for these proceedings is the period of timé covered by
the performance appraisal atissue, December 14, 2001 through January 29, 2002. Dr. Hsu
may inquire regarding work in progress before or after these dates only to the extent the work
was or should have been considered in the making of the appraisal.
11. Dr. Hsu bears the burden of proof by a preponderance of the evidence. The
standard of proof iswhether the performance appraisal was used to abuse, harass or
discriminate against Dr. Hsu. Dr. Hsu also bears the burden of going forward with the
evidence. That order will be varied slightly, as the parties and the ALJ have agreed that Dr.
Simmons will testify first for matters of convenience and efficiency. Variance in the order of
proof has no effect upon the burden of proof or the burden of going forward with the
evidence.
12. The parties stipulated and agreed that DTSC has a zero tolerance policy
against abuse, harassment and discrimination, as set forth in DTSC policy documents that
were marked as exhibits and were admitted by stipulation.
Go
.
13. Documents reflecting DTSC policies and procedures for evaluating
employees, and DTSC “core values” statements were marked as exhibits and were admitted
in evidence by stipulation.
14. Documents and evidence regarding DTSC inquiries or investigations, either
regarding complaints by, or complaints against or other inquiries regarding Dr. Hsu are
excluded and will not be admitted in evidence. There is and has been no foundational
showing any of these investigations or inquiries, or documents resulting from such, were
relied upon by the author of the performance appraisal, or played any role in the forming of
_ ratings or comments contained in the appraisal under review.
15. Dr. Hsu’s motion challenging jurisdiction to hear this matter is taken under
submission. Dr. Hsu contends there is no jurisdiction to conduct this procedure because the
required second level review conference with the appointing authority required by
Government Code section 19999,2(a) did not occur. Preliminarily, the Administrative Law
Judge ruled the contention appears to lack merit, because the record contains a good deal of
reference to a lengthy and detailed conference between Dr. Wong and Dr. Hsu regarding the
performance appraisal at issue, which appears to be the second level review. However, the
parties may inquire on the issue and itwill be ruled on in final form in the decision. Itis
anticipated that Dr. Simmons will testify regarding the procedural steps that culminated in
this proceeding.
16. Inquiry into and the presentation of evidence regarding Dr. Hsu’s applications
for or qualifications for job positions other than the position he now occupies are excluded.
Dr. Hsu’s qualifications for his current position are relevant and his curriculum vitae and list
of publications was marked as an exhibit. Counsel for DTSC contends these documents are
wrelevant. The ALJ deferred ruling on the objection until the evidentiary hearing develops
or fails to develop the foundation required for a finding of relevance. DTCS does not dispute
Dr. Hsu’s impressive educational background, the fact that he has published in the scientific
literature, or that he iswell qualified for the position he now holds. There must be’ some
additional showing of how Dr. Hsu’s qualifications and publications are relevant to the
ratings he was given, or should have been given, or the comments that were made, or should
have been made on his performance appraisal. The ruling will be mindful that the
performance appraisal assumes Dr. Hsu’s qualifications, and that the performance appraisal —
is not an instrument to weigh Dr. Hsu’s qualifications to perform the work, but rather how |
well he performed the work within the standards and guidelines set by the appointing
authority.
17. Dr. Hsu’s version of his duty statement is excluded. However, Dr. Hsu may
testify regarding what he actually does in his work position. However, the evidence is only
relevant if the work actually performed different than contained in his official duty statement
‘was or should have been considered by the author of the performance appraisal, but was
overlooked or ignored in the making of the ratings and comments contained in the
performance appraisal.
18. There will be no witnesses permitted regarding the technical work performed
by Dr. Hsu except Dr. Simmons and Dr. Hsu.
19. BPS memos are subject to the same ruling as “negative memos” set forth
above. No such memo will be admitted in evidence unless itis proved that Dr. Simmons was.
aware of the memo and considered its contents in the making of any of rating or comment in
the appraisal at issue.
20. No witnesses other than Dr. Simmons or Dr. Hsu will be permitted on the
issue of “Relationships with People” absent good cause demonstrated to call another.witness. _
Good cause islimited to ashowing during the examination of Dr. Simmons that a particular
person's testimony on the issue would be material, helpful and relevant to determining the
accuracy of the rating or the comments for this particular appraisal entry. The same ruling
applies to additional evidence regarding any threats Dr. Hsu alleges were made against him.
21. The parties may make closing arguments in written form, following the
presentation of evidence. The parties will be furnished a copy of the working listof Exhibits |
that was complied during the Prehearing Conference. No other documents or writings will
be marked and admitted absent a showing of good cause why those documents were not
produced atthe Prehearing Conference.
22. Based upon the Prehearing Conference rulings,it is now anticipated that less
time will be required for the taking of testimony and admission of documents than is
currently scheduled.
DATED: Way, 2003
| fj
Meyphobiulle
STEPHEN J.SWATH
Administrative Law Judge
Office of Administrative Hearings
_ CERTIFICATION OF MAIL
I, Kathy Rossow declare as follows: Iam over 18 years of age and have no interest in the above
matter herein; my place of employment and business address is:
Office of Administrative Hearings
560 J Street, Suite 300
Sacramento, CA 95814
On May 12, 2003, I served a copy of the following entitled action:
|PREHEARING CONFERENCE ORDER -OAH CASE NO, N-2003030983
by enclosing the action in a sealed envelope and placing the envelope for collection and mailing
on that date and at the Office of Administrative Hearings, City of Sacramento, County of
- Sacramento, State of California, following ordinary business practices. J am readily familiar
with the Office of Administrative Hearings’ practice for collecting and processing
correspondence for mailing. On the same day that correspondence is placed for collection and
mailing, itis deposited in the ordinary course of business with the United States Postal Service in
a sealed envelope with postage fully prepaid.
This action was sent by regular mail, as indicated below, addressed to each of the person(s) _
named below, at the address set out below each name.
Jobn Hsu
_ P.O. Box 1255
Berkeley, CA- 94701
Linda Y. Chang
Senior Staff Counsel
Office of Legai Counsel and Investigations
Dept. of Toxic Substances Control
1001 I Street
Sacramento, CA 95814
Dept. of Toxic Substances Control
Human Resources
1001 I Street
' Sacramento, CA 95814
Linda A. Mayhew
Administrative Law Judge
Dept. of Personnel Administration
Statutory Appeals Unit .
1515 S Street, North Building : |
Suite 400 .
Sacramento, CA 95814-7243
I certify and declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
Executed on the 12th day of May, 2003
aco
cee EL i taaacsevieg
ie SWRA en i tnaaarplane nan a nen ena oem paar lyresti gaapnunne
; ; iia at Aada lO . CONE. ER Vie 0 St
| 7 LOLP6 = VO “Adlaxeg:
to _ _ GGZL XOg O'd .
nsH ‘uyor
|
be
me
“OR
Bris (723 mays
usa V5 ~\
eae vL8S6 VO ‘OLNSWVYOVS
O0€ ALINS ‘LIIULS Pf09s
SONINVZH SALLVULSININGY JO 3O14IO
COURT’S EXHIBIT I
WAIS Document Retrieval © @ Page 1 of 2
CALIFORNIA CODES
«7
GOVERNMENT CODE
SECTION 19992-19992.4
19992. (a) After consultation with appointing powers and other
supervising officials the department shall assist and encourage state
agencies to establish standards of performance for each class of
position and shall provide a system of performance ratings. Su
Preview
e eo onmNeNAa John Hsu P. O. Box 1255 aq te CA 94701 o | Ee ie Berkeley, WN H: (510) 841-5992 ’ Bea ALAMEDA tCOUUNTY Ww Nov 9 5 2003 & epee . efuOR COURT Plaintiffin pro per CLERK OF Oa he jin ws By Deputy SUN SUPERIOR COURT OF CALIFORNIA oo COUNTY OF ALAMEDA \O 10 11 JOHN HSU, ) caspno:RG03125579 ) 12 Petitioner, ) +) COURT’S EXHIBITS I AND II; 13 v. ) ) EXHIBITS A - K; 14 ) DIRECTOR, CALIFORNIA ) DTSC’S EXHIBITS L - G1; 15 DEPARTMENT OF PERSONNEL ) ADMINISTRATION, ) FROM: 16 ) Respondent. ) ADMINISTRATIVE PROCEEDING 17 -) BELOW, DPA CASE NO. 03-H-0016, ) HSU V. DTSC. 18 CALIFORNIA DEPARTMENT OF ) TOXIC SUBSTANCES CONTROL, ) 19 ) Trial Date: Real Party in Interest. ) Time: 20 ) Department: 21 22 Exhibits B -F were submitted by Appellant John Hsu, Exhibits L - G1 were submitted 23 by Respondent DTSC, in the administrative proceeding below, DPA Case No. 03-H-0016, Hsu 24 v. DTSC. 25 26 27 28 Court’s Exhibits I & If;Exhibits A - G1; from Administrative Proceeding Below, DPA Case No. 03-H-0016. ‘Coart vl Ese can gy.} Gev tedke Mieqat-s9e9 2 @ ( bytes At hated wok | DPAR ake 598 29 ” STATE OFCALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS EXBIBIT/WITNESS LIST 7003020863 [emt 7 OF Tose VEST: Casita) ys) COMPL: ATTY/REP: eM HWE ; a . RESP. ATTIRED PED FER ; LD | EVID Rebone and Aupivalend bl HV| + at Ayaeals Gteelnar (67| sn Ae 2008 fea? Ayprajsal’ —! |szl ed» Pecumame Bal. 1] V > bpplal pf Yor Lawak \e7| | ° ze" oleae ley || 7 + Reastid frchogoeal” et |v > Strakegic Fon Cine eds 00)1] = Momps 246-02, 0-101 Fasmadls || * Core “tele memp FAS || cont * $4-0b Mem Coupotns ba Wh *Setof Pub Fipraicel Go ET) VI 2"Cadena, | esr ets alfa \xet| “| ° 2002 DBA Doce + reams ref | * Wailmuuage 5 ene fe ir se] V | Job Secs ChopBt TE | baBackground by Levee’ t-y-oL Walle|» Mev BZA. © Cyanicle Bictobar Aube. eure | BPA Empl Log Fil ef) = Rone th Etopine Laphoay 2G | <* 2a fi Moye of Te E]| A LAA Gren Gs water anbrcle d yea eK | + Stammns Moy bH OLA "email Lewrd £1422 pkelea| ref |a Bua Hery wivewhnnais|523| ~~ Email bewig Hog 7-22 |g ee, "4B 03 Mom) 1 cownpup >| Duet Chan td hyalpbicd WK l iD) V2 & 3-02 Manarctien yung Al 7 | « PA atcle b-pd0r Pidae2ley] &3 Mevy Butoh, |FA @ = reap? Ans Fool bat alt |? 6202 Cuil, (eae: * CE Lemptot azluey eo) {| * btn tvle Keae htt ch A v Kegel Lap. Chyaciejric Rawtyy gy | (A $602 e rail Stabe he Al | » belturnin of Site A202| | tel |»Reactitty AbIog ty) ppd 2 A » 2-43-02 Jeu: Neste litlew Stal eal A | S207 2 nt Hol Udeg al = Tnblne ea V 472-02. 58 32 cn fe ! eal VI. = nal He] Fwpeng AGED pad) |» Ter A 22 Crichinel enyeel_ * CevRTS BMteB TTS Tit HAA A1G01 eal Hs [masFal) A a Lipari S| OD 42602 Drarrvatinn D2 2) ay rMinygs Mi tect Heb Fa FH Gl kL: AOL Leyeal SO 32.wtmg 2) Peeis tp Pur ArAn 9) Maj aL158 22 z Yoe-oa = ae Cé Je 2 ! of. Fi 2b eval ¥T bh BNE H!E:He melia said al ite. B ‘oa mea d EZ 4. ‘Dees ee Be By 1G Chat FAL: m e- wto ee Q —13. ez bOP, | 4D. Dynes Bp Ph E4aE Bis [Ap yb Keo eid ia ‘—. i a ge AS IRL. e-may Tipatshao t [x4kiby ¢ lesae GIWY4 vr 3 La “Miet 5-02 Dhn: s les. eT) ci yy4) Hse Fal Hes: FaleUn \F2- [Tilo th a ey za y EZ | AwYe DOL Suppl { ? COU mo p24 r | joi We $9 teal e ._ ee. @& "WATE OF CALIFORNIA OFFICE OF ADMINIS TRATIVE HEARINGS EXHIBIT/WITNESS LIST . OAH-23 (REV.12/93) oo OW. hesi 8 43 = . AGENCY NAME: na C-najl BOF Sc abae a ref A. +40 C-wall_ 1-402 200% wis |ealey |» 26 wedi 17103 printer fe Ne 4c +8 Cmai] Halda S LTT OZ _ Ez I 783 a | le [+24 38 32 alone 6 ble -24He | : \ [EIS 41202 _I950es Br Dizevxigqral _ NON [ie 510 32 Bill Pradysts Fon \ PE]. Dre mow fo BL 4% Fak N 269 _Eph Fibs magtnly 4-26 eh 6 =] Ly 04 crea Rotem Mbp ODLi3 \iexz Ts 4p fi \chaueld Lit 2nd, VA. 7 29) 4-01. Moats 2s dale 2A a P E4 NN \ war feat nittiaael momen (52,1 | * AE ie wail G2302. 7 aL) xtan 54 zi A) Ett Dima 2PM 2 YG rate We _TAOL ere) 8, ra ou 5-28-92 S832" Screaniae o Bs" jor} . qs . HOS teFr Coed? yah mio p21 \] A. 44 6-1-0, isa, Mhmgals Raney [6-1 i< ZOD A iOL. Mop te bande |p22 SLs IO) b1S-02 ynomp foi Guestews _|FX F102 b-1462-iewy phi‘inks Home Mmal F108 0-120 nowt osa EPA mene’ ou | “14 J-2S-02 Ws5uls summary A-N eo @ “STATE OF CALIFORNIA a OFFICE OF ADMINISTRATIVE HEARINGS EXHIBIT/WITNESS OAH-23 (REV. 12/93) - LIST - hfs / _ uy $2 ‘COMPL. ATTY/REP: ia Litstuak rept | ¥ ity Keactonty aiee q-ptt | ? 0 Pai glia F108 O-20-0. Simmons “Yo ou #104 Ny 47ROL- of kn Vd Ante Biblonatby w-h-ov len Zyl Aegositi Bebe wl [xi Sf wf cm PUD Lynil WASTE bs Yi & (4 lo-Tep2- L. stops Jeg gin US atte Eabmes lab lpr Keal ray Pb 2/02 to mim Libied. FT Kegs dipa- eZ re | HS Tenspot ab Haz Dt }Regs | Eada LOFRCL Aeacthly ZOP lar Perl Yn [her bebe iL Wyman gw, FA _b24 23425 Com quits ey fence _b-224 F pA Aad RG: tm LY a Bis. 7 oH | 229 Meng iD ) bombing S2u PY }27920L (etced Zeunning Ah GI y FIZY Ketcle- PD. a nd ad Hihy gr Ceahide hewnonn g |FD (ejv (24 LY peyew “Gite [273 at SB i v — | *) ap email thee Bemntna jPBAL RDI Tae, “at he ae ELH LIST t4A0L em ate ; Boe | Galen a:May7Prehearing May 7, 2003 5/7/03 Prehearing Conference Taking Official Notice Government Code sections 19992 - 19992.4’ 2 CCR 599.798 Exhibits Respondent’s Exh. No. .Description A DPA’s Statutory Appeal Hearing Guide B _ .BPS’s 1/29/03 performance appraisal for JH C DTSC 3/19/97 Zero-tolerance policy on assaults, intimidation, threats and -harassment (Revised); Administrative Directive DO 2-97-1. Definition of “Harassment” is on page 2. D DTSC 2002 Strategic plan; “OUR VALUES” (— leadership, accountability, integrity, objectivity, quality, professionalism, <. .)on page 3 of Executive Summary E DTSC 3/29-30/01 Executive Staff Offsite SUMMARY; Bates-stamped . 000947. DTSC’s governing principles are law, science and common sense. FO Set of three Bob Borzelleri memoranda on Performance Appraisal; dated 6/16/00, 6/13/01, and’8/26/02 - DPA Case'No. 1 : . -=—-03-H-0016-----= -Hsuv.DTSC | . Exh.No. 256» DPA decisions in DPA Case No. 01-H-0132, dated 12/31/02; JH’s 1/23/02 letter to DPA Director Marty Morgenstern; DPA’s 2/21/03 response; JH’s 4/6/03 fax to Linda D. Buzzini; JH’s 1/26/03 Request for Rehearing or Reconsideration; DPA’s 4/11/03 Order Upon Reconsideration Job specification for JH’s current position, Public Health Chemist I (Specialist) MOU between California Association of Professional Scientists (representing Unit 10 employees) and the State of Califorma DPA’s computer printout of JH’s employment history DTSC 4/23/03 “Second Amended Notice of Hearing” Appellant’s Exh, No. - Description JH’s qualifications; Research Scientist [V Application; three publications (Anal. Chem 64, 434-443 (1992); review chapter in book 1996 book on “applications of LC-MS in environmental chemistry’; J. Contam. Hydrol. 51, 163-178 (2001)); two recognitions (7/25/97 e-mail from Brad Parsons to Bart Simmons; 1997 DTSC Superior Accomplishment Team Award) Comparison of year 2000 performance appraisals for JH and CD JH’s statutory appeals of year 2002 performance appraisal submitted to the DPA (12/3/02; 2/23/03) JH’s “Reasons for appeal” Leslie Frye 2/15/02 memo to Mark Hutchinson, on “Response to Margaret Lamb’s memorandum,” top page, Bates-stamped AGO-004449; Ivory Mitchell’s 10/15/01 memo on “Findings on the June 10, 2001 incident, re: Dr. John Hsu,” top page, Bates-stamped AGO-004450 .BPS’s memoranda 9/3/02. wiHisudimen 6/1 0/02, : ertaioa 8/1 6102. “ 2 Ave 9/13/02: °~ COURT’S EXHIBIT I BEFORE THE DEPARTMENT OF PERSONNEL ADMINISTRATION | STATE OF CALIFORNIA In the Matter of the Appeal of Performance Appraisal of: Case No. 03-H-0016 _ JOHN HSU, Public Health Chemist II, OAH No. N-2003030983 Appellant, DEPARTMENT OF TOXIC SUBSTANCES | CONTROL, Respondent. PREHEARING CONFERENCE ORDER . Administrative Law Judge Stephen J. Smith, Office of Administrative Hearings, State of California conducted a Prehearing Conference in this matter in Sacramento, California on May 7, 2003. Linda Y. Chang, Senior Staff Counsel, represented the Department of Toxic Substances Control, State of California. Appellant John Ic Hsu represented himself. The parties each submitted Prehearing Conference Statements together with proposed exhibit and witness lists. Issues raised in the Prehearing Conference Statements and in several submissions in advance of the Prehearing Conference were litigated, stipulations made, and exhibits were marked. The Prehearing Conference was tape recorded. 1. The Administrative Law Judge clarified and confirmed the ruling regarding the applicable procedural law governing this appeal set forth in the Administrative Law Judge’s Order of April 29, 2003; The Administrative Procedure Act (“the APA”) does not govern these proceedings, and will not be applied.’ These proceedings are statutory appeals proceedings governed by the statutes, rules and procedures of the Department of Personnel Administration. The governing statutes are Government Code sections 19999.1-19999.4. 'Government Code section11410.50. : : SO a : DPA Case No. ~~ _ .03-H-0016 ' Hsuv.DTSC % i Court’sExh. I i The primary governing authority for this proceeding is Title 2, California Code of Regulations (“CCR”) section 599.798, also known as DPA Rule 599.798. A copy of the Rule was marked as an exhibit, and the Administrative Law Judge took official notice of both the statutes and the Rule/regulation. DPA has enacted and published a series of © additional Rules construing Rule 599.798, to govern the conduct of statutory appeals such as this one. These Rules contain the governing procedure for the conduct of this appeal. The Administrative Law Judge marked a copy of the Rules as an exhibit, and the Administrative Law Judge officially noticed these rules as well. 2. The statutes, regulations and Rules do not provide any employee the right to a full evidentiary hearing on an appeal.of a performance evaluation the employee finds unsatisfactory. The nature of the review can range from a strictly documentary review without witnesses, to permitting oral argument, to a limited evidentiary hearing, in the discretion of DPA. In this instance, a strictly limited evidentiary hearing will be provided, allowing for the testimony of two witnesses and the review of a limited set of documentary evidence, as outlines during the Prehearing Conference and in this Order. 3. Only in the absence of a DPA statute or Rule applicable to any specific issue will the Administrative Procedure Act formal adjudication rules (Government Code section 11400, et. seq.) be, in the exclusive discretion of the ALJ, referred to for nonbinding © guidance. Some of the DPA Rules for the conduct of this appeal specifically incorporate certain provisions of the APA, such as the APA hearsay rule, Government Code section 11513. Those specifically incorporated APA provisions will be applied, as set forth in the ‘Rules. . 4. The discovery provisions of the APA are not applicable to these proceedings, nor are the provisions of Government Code section 11450.50 regarding the production of witnesses. Section 11450.50 applies only to hearings required to be conducted according to the APA.” . 5. Dr. Hsu’s pending Notice to Produce Witnesses and Documents pursuant to the authority of Government Code section 11450.50, and counsel for the Department of Toxic Substances Control (“DTSC”)’s motion to Quash the Notice and for a Protective Order were resolved by a combination of the ruling above regarding the inapplicability of the APA to these proceedings, and determination of witnesses from the parties’ list of proposed witnesses who will be permitted to actually testify atthe evidentiary hearing. Section 11450.50 does not apply to the production of documents from an agency, as contended by Dr. Hsu. The Notice to Appear to witnesses portion of the Notice is inapplicable. The witnesses who will appear are set forth below, and DTSC has agreed to produce Dr. Simmons, the key DISC witness. The ALJ advised Dr. Hsu that there is no need to continue his efforts to subpoena any other witnesses whose attendance was sought by the Notice to Produce Witnesses pursuant to Section 11450.50. 2 Government Code section 11450.05 6. Dr. Simmons, the author of the performance evaluation at issue, and Dr. Hsu will be the only witnesses permitted to testify at the evidentiary hearing. No other witnesses will be permitted to testify, unless good cause is shown to permit the testimony of another witness. Good cause will be strictly and narrowly construed, and will be found only where there is a showing that the proposed witness’ testimony isrequired to address an unknown and unanticipated situation that developed during the course of the evidentiary hearing. 7. Official notice was taken of the DPA decision in Dr. Hsu’s 2002 appeal of his performance appraisal. The underlying record was not officially noticed, and Dr. Hsu’s request that the record of the proceedings be officially noticed was denied. The decision in the 2001 appeal filed by Dr. Hsu of his performance appraisal-was not officially noticed, as the matter was decided on procedural grounds and not on the merits of the appeal. 8. Mr. Hsu’s request that official notice be taken of the records of his pending EEOC proceedings, pending Alameda County Superior Court action against DTSC, and his U.S. District Court, Northern District of California action against DTSC are each denied. These pending litigation matters are irrelevant to the issues pending in this appeal, which is limited to an inquiry of whether the ratings and comments made by Dr. Hsu’s supervisor in his 2002 performance evaluation were fair and accurate reflections of Dr. Hsu’s work, or whether any or all of the ratings and comments were made to abuse, harass or discriminate against Dr. Hsu. 9. “Negative memos” offered by Dr. Hsu will be considered only to the extent Dr. Hsu can show the author of the performance appraisal was aware of the memo, considered and relied upon it in the making of any specific rating or comment contained in the appraisal. There appear to be nine such memos, listed in Dr. Hsu’s exhibit list. Dr. Hsu , 1s i the process of copying these memos, and will produce them to counsel for DTSC and the ALJ in ten days time from the Prehearing Conference. 10. The period of inquiry for these proceedings is the period of timé covered by the performance appraisal atissue, December 14, 2001 through January 29, 2002. Dr. Hsu may inquire regarding work in progress before or after these dates only to the extent the work was or should have been considered in the making of the appraisal. 11. Dr. Hsu bears the burden of proof by a preponderance of the evidence. The standard of proof iswhether the performance appraisal was used to abuse, harass or discriminate against Dr. Hsu. Dr. Hsu also bears the burden of going forward with the evidence. That order will be varied slightly, as the parties and the ALJ have agreed that Dr. Simmons will testify first for matters of convenience and efficiency. Variance in the order of proof has no effect upon the burden of proof or the burden of going forward with the evidence. 12. The parties stipulated and agreed that DTSC has a zero tolerance policy against abuse, harassment and discrimination, as set forth in DTSC policy documents that were marked as exhibits and were admitted by stipulation. Go . 13. Documents reflecting DTSC policies and procedures for evaluating employees, and DTSC “core values” statements were marked as exhibits and were admitted in evidence by stipulation. 14. Documents and evidence regarding DTSC inquiries or investigations, either regarding complaints by, or complaints against or other inquiries regarding Dr. Hsu are excluded and will not be admitted in evidence. There is and has been no foundational showing any of these investigations or inquiries, or documents resulting from such, were relied upon by the author of the performance appraisal, or played any role in the forming of _ ratings or comments contained in the appraisal under review. 15. Dr. Hsu’s motion challenging jurisdiction to hear this matter is taken under submission. Dr. Hsu contends there is no jurisdiction to conduct this procedure because the required second level review conference with the appointing authority required by Government Code section 19999,2(a) did not occur. Preliminarily, the Administrative Law Judge ruled the contention appears to lack merit, because the record contains a good deal of reference to a lengthy and detailed conference between Dr. Wong and Dr. Hsu regarding the performance appraisal at issue, which appears to be the second level review. However, the parties may inquire on the issue and itwill be ruled on in final form in the decision. Itis anticipated that Dr. Simmons will testify regarding the procedural steps that culminated in this proceeding. 16. Inquiry into and the presentation of evidence regarding Dr. Hsu’s applications for or qualifications for job positions other than the position he now occupies are excluded. Dr. Hsu’s qualifications for his current position are relevant and his curriculum vitae and list of publications was marked as an exhibit. Counsel for DTSC contends these documents are wrelevant. The ALJ deferred ruling on the objection until the evidentiary hearing develops or fails to develop the foundation required for a finding of relevance. DTCS does not dispute Dr. Hsu’s impressive educational background, the fact that he has published in the scientific literature, or that he iswell qualified for the position he now holds. There must be’ some additional showing of how Dr. Hsu’s qualifications and publications are relevant to the ratings he was given, or should have been given, or the comments that were made, or should have been made on his performance appraisal. The ruling will be mindful that the performance appraisal assumes Dr. Hsu’s qualifications, and that the performance appraisal — is not an instrument to weigh Dr. Hsu’s qualifications to perform the work, but rather how | well he performed the work within the standards and guidelines set by the appointing authority. 17. Dr. Hsu’s version of his duty statement is excluded. However, Dr. Hsu may testify regarding what he actually does in his work position. However, the evidence is only relevant if the work actually performed different than contained in his official duty statement ‘was or should have been considered by the author of the performance appraisal, but was overlooked or ignored in the making of the ratings and comments contained in the performance appraisal. 18. There will be no witnesses permitted regarding the technical work performed by Dr. Hsu except Dr. Simmons and Dr. Hsu. 19. BPS memos are subject to the same ruling as “negative memos” set forth above. No such memo will be admitted in evidence unless itis proved that Dr. Simmons was. aware of the memo and considered its contents in the making of any of rating or comment in the appraisal at issue. 20. No witnesses other than Dr. Simmons or Dr. Hsu will be permitted on the issue of “Relationships with People” absent good cause demonstrated to call another.witness. _ Good cause islimited to ashowing during the examination of Dr. Simmons that a particular person's testimony on the issue would be material, helpful and relevant to determining the accuracy of the rating or the comments for this particular appraisal entry. The same ruling applies to additional evidence regarding any threats Dr. Hsu alleges were made against him. 21. The parties may make closing arguments in written form, following the presentation of evidence. The parties will be furnished a copy of the working listof Exhibits | that was complied during the Prehearing Conference. No other documents or writings will be marked and admitted absent a showing of good cause why those documents were not produced atthe Prehearing Conference. 22. Based upon the Prehearing Conference rulings,it is now anticipated that less time will be required for the taking of testimony and admission of documents than is currently scheduled. DATED: Way, 2003 | fj Meyphobiulle STEPHEN J.SWATH Administrative Law Judge Office of Administrative Hearings _ CERTIFICATION OF MAIL I, Kathy Rossow declare as follows: Iam over 18 years of age and have no interest in the above matter herein; my place of employment and business address is: Office of Administrative Hearings 560 J Street, Suite 300 Sacramento, CA 95814 On May 12, 2003, I served a copy of the following entitled action: |PREHEARING CONFERENCE ORDER -OAH CASE NO, N-2003030983 by enclosing the action in a sealed envelope and placing the envelope for collection and mailing on that date and at the Office of Administrative Hearings, City of Sacramento, County of - Sacramento, State of California, following ordinary business practices. J am readily familiar with the Office of Administrative Hearings’ practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, itis deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. This action was sent by regular mail, as indicated below, addressed to each of the person(s) _ named below, at the address set out below each name. Jobn Hsu _ P.O. Box 1255 Berkeley, CA- 94701 Linda Y. Chang Senior Staff Counsel Office of Legai Counsel and Investigations Dept. of Toxic Substances Control 1001 I Street Sacramento, CA 95814 Dept. of Toxic Substances Control Human Resources 1001 I Street ' Sacramento, CA 95814 Linda A. Mayhew Administrative Law Judge Dept. of Personnel Administration Statutory Appeals Unit . 1515 S Street, North Building : | Suite 400 . Sacramento, CA 95814-7243 I certify and declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed on the 12th day of May, 2003 aco cee EL i taaacsevieg ie SWRA en i tnaaarplane nan a nen ena oem paar lyresti gaapnunne ; ; iia at Aada lO . CONE. ER Vie 0 St | 7 LOLP6 = VO “Adlaxeg: to _ _ GGZL XOg O'd . nsH ‘uyor | be me “OR Bris (723 mays usa V5 ~\ eae vL8S6 VO ‘OLNSWVYOVS O0€ ALINS ‘LIIULS Pf09s SONINVZH SALLVULSININGY JO 3O14IO COURT’S EXHIBIT I WAIS Document Retrieval © @ Page 1 of 2 CALIFORNIA CODES «7 GOVERNMENT CODE SECTION 19992-19992.4 19992. (a) After consultation with appointing powers and other supervising officials the department shall assist and encourage state agencies to establish standards of performance for each class of position and shall provide a system of performance ratings. Su