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Court of Appeal Case No.

C079254

COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

JAROSLAW WASZCZUK,

Plaintiff and Appellant,

v.

CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD;


EMPLOYMENT DEVELOPMENT DEPARTMENT,

Defendants and Respondents,

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Real Party in Interest.

PETITION FOR REHEARING

On Appeal from a Judgment of the Superior Court,


County of Sacramento
The Honorable Shelleyanne W. L. Chang , Judge
Sacramento County Superior Court Case No. 34-2013-80001699

JAROSLAW WASZCZUK
In Pro Per
2216 Katzakian Way
Lodi, CA 95242
Phone: (209) 339-1982
E-mail: jjw1980@live.com

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

I. INTRODUCTION …………………..…………….........................………9

II. THE STANDARD OF REVIEW………………………..…… ….…….. 10


A.The Court’s Review of this Case is Not the “de novo” Review…...…..10

III. THE UNPUBLISHED 3DCA OPINION IN THE CASE NO.


C079254, WASZCZUK v. CALIFORNIA UNEMPLOYMENT
INSURANCE APEAL BOARD......……………….……………………....11

A. Waszczuk’s Briefs...................................................................................11
B.The Respondents Briefs……………………..……………………….13
C. The Oral Argument on December 12, 2018 …............………………… 16
B. Prior the Oral Argument………………..…………………………….....17
IV. THE REVIEW OF THE WASZCZUK UNEMPLOYMENT INSURANCE
BENEFITS CLAIM BY THE STATE OF CALIFORNIA
EMPLOYMENT DEVELOPMENET DEPARTMENT (EDD) AND THE
CALIFORNIA UNEMPLOYMENT INSURANCE OFFICE OF THE
APEPALS ADMINISTRATIVE LAW JUDGE (ALJ) MARILYN
TAYS………………………………………………………………………18
A.The Claim Filed with (EDD) - Case No. 0410……………………… .19
B. The UC Davis HR Unemployment Insurance (UI) Coordinator Holly
Sohor’s deception and lies …….…………………….………………..19
C. The Waszczuk’ Appeal from the 12/05/2012 Notice of Dismiss …… 21
D.The January 4, 2013 EDD’s Interview with Waszczuk ………… ….. 21
E. The January 4, 2013 EDD’s Interview with Phyllis Reginelli about
Termination of Waszczuk’s employment with RPii in August -September
2011. ……………………….…………………………………………..22

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F. The EDD’s Failure to Resolve Conflicting Information …………22
V. THE REVIEW OF WASZCZUK’ UI CLAIM & HEARING
WITH THE ADMINISTRATIVE LAW JUDGE (MARYLYN
TAYS - CASE NO. 4729869…………………...…………………23

A. ALJ Marylin Tays’ Notice of Hearing ………………...………....23


B. The Hearing with ALJ Marilyn Tays …………….……………..24
C. The Hearing with ALJ Marilyn Tays ………...…………………25
VI. THE “DE NOVO” REVIEW OF THE WASZCZUK’S EDD’S
CLAIM ;ALJ DECISION BY THE CUIAB BOARD MEMBERS
MICHAEL ALLEN AND ROY ASHBURN……………………27

A. CUAIAB s Case No. AO -31-319805- Decision dated May 31, 2013


……………………………………………………………..………27
B. CUIAB’ Board Members Michael Allen And Roy Ashburn. …….27
VII. THE REASON FOR REHEARING OR MODIFICATION OF THE
UNPUBLISHED OPINION………………………………..……..28

A.The Humanitarian Reason ………...………………………………28


B. The coincidental relation of the Meidranos case to Waszczuk’s
employment termination in 2012 ……………………………...…..30

C. The Reason for Assault on May 31, 2012………………...……….30


D.The Randy Vergos , Craig Meidranos and Jerry Waszczuk …..…..32
E. The Important Factual and Evidentiary Errors in the 3 DCA
C079254 Case Opinion ………………………………………...….33

F. The Waszczuk’ employment status with the university of California


in 2010-2012……………………………………………………….33
G. Aftermath the May 31, 2012 Unsuccessful Provocation to end
Waszczuk employment in the UCDMC Trauma Unit # 11………..38

VIII. THE STORY BEHIND WASZCZUK’S MAY 3, 2012, E-MAIL


ENTITLED “MEETING WITH MCGRATH 5/2/2012,” WHICH
WAS SENT TO UCDMC HR LABOR RELATIONS MANAGER

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HUMBERTO “MIKE” GARCIA-COLUMBINE MASACRE
STORY…………………………………………………………..40

A. Hostility in the UCDMC 27 Megawatt Cogeneration Plant “Central


Plant” ………………………………………………………….….41
B. William Buckans’ 5/2/2012 e-mail to UCDMC HR attorney Jill
Vandeviver ………………….…………………………………….42

C. Waszczuk wrote the following in his 5/3/2012 e-mail………...….43


D. Letters of Expectation Served to William Buckans and Kenneth
Diede in May 2012……………………………..…………………44

E. May 30, 2012, Stress-Management Class ……….………………45

IX. THE COURT OF APPEALS JUSTIFICATION FOR THE


AFFIRMATION OF THE TRIAL COURT DECISION
DENYING PETITIONER AND APPEALANT JAROSLAW
WASZCZUK’S PETITION FOR WRIT OF MANDAMUS…....50

A. Waszczuk’s Disagreement with 3DCA’s Opinion ……….……...50


B. False Statements, and Statements in the Opinion Based on
Speculation and Guessing……………………...…………………50

X. CONCLUSION ………………………..…………………………54

CERTIFICATE OF COMPLIANCE …………………………….56

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TABLE OF AUTHORITIES

CASES
Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768;…………………….10

Aguilar Atlantic Richfield Co. (2001) 25 Cal.4th 826,


843)…………………………………………………………………..……… .….10

Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200,


1210.…………………………………...………………………….……………….4

Alicia T., supra, 222 Cal.App.3d on pp. 885-886………………………….…….4

Melissa G. v. Raymond M., B284031 (Cal.App. Dist.2


09/20/2018……………..…….…………………………………………………….5

Bennett v. California Custom Coach, Inc. (1991) 234 Cal.App.3d 333,


338…………………………………………………………..………...…….……..5

D.H. 'Williams Construction, Inc. v. Clovis Unified School Dist. (2007) 146
Cal.App.4th 757, 763.………………………………………………………...……5

Kim v. Regents of the University of California, 80 Cal.App.4th 160, 95 Cal.Rptr.2d


10 (Cal.App. Dist.1 03/27/2000),………………………………….………………8

Campbell v. Regents of the University of California, 106 P.3d 976, 35 Ca1.4th 311,
25 Cal.Rptr.3d 320 (Cal. 03/07/2005) (Supra S113275),…………………………...8

Palmer v. Regents of the University of California, 107 Cal.App.4th 899, 132


Cal.Rptr.2d 567 (Cal.App. Dist.2 04/08/2003)…………………………..………..…8

Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2014) 59 Cal.4th 551, 558
(Paratransit) [S204221]………………………………………..………………..20,24

Amador, supra, 35 Cal.3d at p. 683, fn. 9; see Robles, supra, 207 Cal.App.4th at
p. 1036; see also Reg………………………………………………………………..21

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Vergos v. McNeal, 53 Cal.Rptr.3d 647, 146 Cal.App.4th 1387 [Cal.App. Dist.3
01/23/2007])…………………………………………… ………………….24;34

Nam v. Regents of University of California. Cal.App.5th 1176 (2016) 205 Cal.


Rptr3d 687………………………………………………………………..………25

Park v. Board of Trustees of the California State University (May 4, 2017), No.
S229728 Cal.5th
(Park)……………………………………………………………………..………25

Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768……………...…….25

Aguilar Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)………………….….25

County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)………..…………40


Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388……… …46
Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184
Cal.App.4th 1539, 1554, fn. 9)………………………………………………..….46

STATUTES
Section 1142(a) of the UI Code ……………………………..…........................….12
Unemployment Insurance Code § 410………………..…………...……………….12
Unemployment Insurance Code UIC 1253(a)………………………………..……13
California Public Utilities Code Section 218.5…………………………………….23
Business and Professions Code § 17200………………………………… ..………23
Corp. Code, § 29500………………………………………………...……………..23
Government Code Section 8547-8547.12…………………………………………42
California Labor Code§ 1102.5;…………………………………………………...42
California Government Code Sections 12940-12951 Article 1……………………42
California Code of Regulations 11074……………..………………………………42
California Code of Regulations 11076……………………………………………..42

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California Code of Regulations 11084……………..………………………………42
California Code of Civil Procedure § 425.16……………..…………….…………42
California Safety Code section
1278.5…………………………………………………………………………..….46
CALIFORNIA RULES OF COURT
California Rules of Court -Rule 8.268……………………………..………….……9
California Rules of Court 8.204 (a) (1)
(B……………………………………………………….………………………..3,4
Cal. Rules of Court, rule 8.204(a)((1)(c).)…………………………………………5
Cal. Rules of Court, rule 8.220(a)(2)…………...………………………………….5
OTHER AUTHORITIES
Section 242 of U. S Code Title 18…………………………………………………..3
UC Davis Personnel Policies for Staff Members 34…………….…………………10
UC Davis Policy PPSM 23. …………………………………..…………….……..18

18 C.F.R. § 292.20…………………………………………………..……………..23

Federal Power Act 16 U.S.C. § 824d(a)…………………………………………...23

7 U.S. Code § 6b…………………………………………………………………..23

California Commodity Law of 1990………………………………………………23

The Internal Revenue Code of 1954 Section 501(C)(3)………………………… 23


UC Davis Policy PPSM 62………………………………………….……………23
UC Davis Policy PPSM 70………………………………………………...….29,44
Fair Employment and Housing Act 12926…………………………………...…..42
First Amendment of the U.S Constitution……………………………………….42
California Code of Civil Procedure § 425.16…………..………………………..42

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TO THE HONORABLE PRESIDING JUSTICE AND THE
HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL,
THIRD APPELLATE DISTRICT:

PETITION FOR REHEARING OR IN ALTERNATIVE FOR


MODIFICATION OF THE UNPUBLISHED OPINION
DUE TO FOR ERRORS IN LAW OR PROCEDURAL PROCESS

I. INTRODUCTION

Pursuant to rule 8.268 of the California Rules of Court, appellant


Jaroslaw “Jerry” Waszczuk (hereafter Waszczuk) petitions this Court for a
rehearing or in alternative in the above-entitled matter after the Court issued an
unpublished opinion, dated December 12, 2018. The Court of Appeal, by the
issued Opinion, affirmed the March 12, 2015 ,State of California, County of
Sacramento Court Judgment signed by the Honorable Judge Shelleyanne W. L.
Chang. The Hon. Chang’s order denied Waszczuk’s Petition for Writ of
Mandate (CT 200-2011), which was filed in the court on December 2, 2014,
against the California Unemployment Insurance Appeal Board (hereafter
CUIAB) as the primary Defendant and Respondent and against the Regents of
the University of California (hereafter UC Regents or RPii) as the secondary
Respondents and Real Party in Interest (CT 00001-00011). Simultaneously with
the Petition for Writ of Mandamus, on December 4, 2013, Waszczuk, in pro
per, filed a wrongful termination lawsuit against his employer in the
Sacramento County Superior Court, Case No. 34-2013- 00155479, Jaroslaw
Waszczuk v. The Regents of the University of California. The related appellate
case is Waszczuk v. The Regents of the University of California Case No.
C079524.

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II. THE STANDARD OF REVIEW

It is Waszczuk’s understanding that the Court of Appeal should review the case
de novo to determine whether there is an issue with any of the material facts
that led to CUIAB ALJ Marilyn Tays’ and the Trial Court Judge Shelleyan
Chang’s discriminatory, biased, and harmful decision concerning Waszczuk. In
performing de novo review, the Appellate Court must view the evidence in a
light favorable to the plaintiff as the losing party, thus liberally construing the
plaintiff’s evidentiary submission while strictly scrutinizing the defendants’
own showing and resolving any evidentiary doubts or ambiguities in the
plaintiff’s favor. Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768;
Aguilar Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843).

Especially in such a proceeding where there was no trial, the Court of Appeal
has a special obligation to determine who is wrong and who is right without
discrimination and bias to any party.

On the March 21, 2014, the trial date, Court Judge Shellayanne Chang was
assigned to review Waszczuk’s Petition for Writ of Mandate (CT P. 13) filed on
December 2, 20139 (CT 1-11). The Hon. Chang’s disclosure in the March 2,
2015, trial court decision (CT 154-162) was that Administrative Law Judge
(AU) Tays worked with Hon. Chang in the Office of Legal Affairs of Governor
Gray Davis in approximately 2001 or 2002 for about 6 months and that ALJ
Tays was on temporary loan from another state department to the Governor’s
Legal Affairs Office, leading Waszczuk to discover why he was witch hunted
by RPii in 2006-2009 and 2001-2012 (ARB 50-54).

A. The Court’s Review of this Case is Not the “de novo” Review

The Court’s opinion in this case not the ‘de novo” review . This is a
continuance of the defamation and willful degradation by the Court of 67

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years old UCDMC former worker character and his personality to please
RPii’s ruthless thugs and their lawyers

Repeating the UC Davis Medical Center HR Labor Relation attorneys’ lies and
slanderous and defaming statements about Waszczuk’s alleged misconduct, is
not the de novo review but the miscarriage of justice, fraud upon the court, and
willful deprivation of Waszczuk’s rights or privileges and equal access to
justice under the color of law. Waszczuk is 67 years old and in poor health, and
he views the Court of Appeal’s opinion to be a violation of his human rights
and a further destruction of his family life by the California Government on
behalf of the Regents of the University of California:

• The Section 242 of U. S Code Title 18 makes it a crime for a person


acting under color of any law to willfully deprive a person of a right or
privilege protected by the Constitution or laws of the United States. For
the purpose of Section 242, acts under “color of law” include acts not
only done by federal, state, or local officials within the their lawful
authority, but also acts done beyond the bounds of that official's lawful
authority, if the acts are done while the official is purporting to or
pretending to act in the performance of his/her official duties. Persons
acting under color of law within the meaning of this statute include
police officers, prisons guards and other law enforcement officials, as
well as judges, care providers in public health facilities, and others who
are acting as public officials. It is not necessary that the crime be
motivated by animus toward the race, color, religion, sex, handicap,
familial status or national origin of the victim.

III. THE UNPUBLISHED 3DCA OPINION IN THE CASE NO.


C079254, WASZCZUK v. CALIFORNIA UNEMPLOYMENT
INSURANCE APEAL BOARD

A. Waszczuk’s Briefs
In Standard of Review on page 7, the Court stated the following:
• The Waszczuk brief is rambling and his arguments are not set forth
clearly with each point under a separate heading as required by rule
8.204(a)(1)(B) of the California Rules of Court. We have tried to

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discern and individually address his specific arguments. While
Waszczuk is representing himself on appeal, his status as a party
appearing in propria persona does not provide a basis for preferential
consideration. A party proceeding in propria persona “is to be treated
like any other party and is entitled to the same, but no greater
consideration than other litigants and attorneys.” (Barton v. New United
Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
In this nitpicking Court statement, the Court did not specify which of
Waszczuk’s briefs violated California Rules of Court 8.204 (a) (1) (B).
Waszczuk wrote two briefs. If the court acknowledged that Waszczuk failed
to comply with the rules on the briefs, then the briefs should be returned to
Waszczuk for correction and redeposited with the Court within a specified
time, ordered stricken with leave to file a new brief within a specified time,
or considered that is properly prepared” (Alicia T., supra, 222 Cal.App.3d on
pp. 885-886). The Court or Respondents failed to provide justification or
specification as to which brief is at fault and attacked Waszczuk in an
improper and discriminatory manner to justify the discriminatory and
offensive opinion against Waszczuk so as to please white-collar criminals
from the University of California, who have destroyed Waszczuk’s and
many other employees’ lives. This is not the first time this Court has
attacked Waszczuk in this way. In the cross-referenced appellate case, Case
No. C079524, Waszczuk v. The Regents of the University of California
(Anti-SLAPP Motion) (ARB 8-17), the Court went even further by attacking
Waszczuk’s briefs.

In Case No. C079524, this Court, on its own motion the Respondent’s brief
filed July 25, 2016, was stricken for its failure in supporting any reference to
the matter in the record with a citation to the volume and page number, and
it ordered the Respondent to file a new brief by December 15, 2016, but the

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Court blamed Waszczuk for violation of Cal. Rules of Court, rule
8.204(a)((1)(c).), with the following statement:

• Waszczuk’s most glaring and consistent violation of the rules was his
failure to cite the record.
Also, as same as in this case the Court slandered Waszczuk and it affirmed
trial court decision in favor of the defendants which violated any possible
rules of Court without hesitation and any consequences ..

In his AOB and ARB, Waszczuk detailed how he was discriminated in


comparison to other employees and was deprived of due process by the RPii
to resolve the conflict which was created by the rotten by corruption UC
Administration.

B. The Respondents Briefs:

In contrast to the very detailed Waszczuk’s AOB and ARB briefs, the primary
Respondent, the California Unemployment Insurance Appeal Board (CUIAB),
failed to submit any brief, and for this reason alone, the Court should decide the
appeal on the record of the opening brief by the appellant. (Cal. Rules of Court,
rule 8.220(a)(2) Melissa G. v. Raymond M., B284031 (Cal.App. Dist.2
09/20/2018); Bennett v. California Custom Coach, Inc. (1991) 234 Cal.App.3d
333, 338. See also D.H. 'Williams Construction, Inc. v. Clovis Unified School
Dist. (2007) 146 Cal.App.4th 757, 763.

As the 3DCA Register of Action shows, the CUIAB was represented by the
Attorney Ashante Norton from the California Attorney General (AG) Office.

Appellate Courts Case Information entry in Case No.C079254:

• 09/19/2016 The Court returned the document to the Respondent.


CUIAB’s request for extension of time was rejected because the request
was to non-conformance brief is currently due 9/21/16. Now due:
9/26/16.

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• 09/26/2016 Returned document for the request for extension of time
filed by CUIAB was rejected because there no non-conformance
declaration was attached or included.
• 09/21/2016 Respondent’s brief. Real Party in Interest and Respondent:
The Regents of the University of California Attorney: Cynthia Ann
Vroom Includes CIEP. (In 2016, Cythia Ann Vroom did not represent
RPii or CUIAB.)
The next entry:
• 09/21/2016 Filed joinder: CUIAB in the respondent's brief filed by The
Regents of the University of California.
AG CUIAB’s Attorney Ashante Norton filed a joinder on 09/21/2016 after the
Court Clerk four days later on 09/26/2016 rejected CUIAB’s extension of time
because the declaration was not attached or included. How it is possible to
reject something backward what was supposedly cured four days earlier . RPii
did not hire Porter Scott attorney to represent CUIAB . ALJ Tays and Hon .
Shelleyanne Chang

The CUIAB’s attorney from the AG Office knew in 2014 that ALJ Marylin
Tays and two of CUIAB’s board members, Michael Allen and Roy Ashburn,
were investigated by CUIAB’ Chief Counsel Kim Steinhardt and that
Waszczuk filed a complaint with the State Bar of California against Marilyn
Tays and Michael Allen in 2016 and against Ashante Norton, in addition to the
other 20 attorneys who participated or collaborated in destroying Waszczuk’s
life and manipulated the case . Ashante Norton knew in 2014 a CUIAB counsel
that EDD, in May 2014, reinstated Waszczuk’s unemployment benefits, and she
remembered how she, together with RPii Attorneys from UC General Counsel
office , Cinthia Vroom; Charles Robinson , Margaret Wu , Karen Petrulakis
and Waszczuk’s unfortunate attorney, Douglas Stein, attempted to nullify
Waszczuk’ Petition for Mandamus through demurer (CT 00016-00023; 00035-
00037) (CT 0038).

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The RPii’s Respondent Brief (RB) filed on 09/21/2016 by David Burkett was
not a joinder RB brief. The RPii’s brief filed on 09/21/2016 was entitled,

On Appeal From a Judgment of the Superior Court, County of


Sacramento
The Honorable David Brown, Judge
Sacramento County Superior Court Case No. 34-2013-80001699
PORTER SCOTT
A Professional Corporation David P.E. Burkett, SBN 241896
The brief was submitted by Proof of Service to Honorable David Brown in
Department 53 instead of Honorable Sheleyanne Chang in Department 24. The
RPii brief should have never been filed and Court should return the Brief to
RPii counsel from Porter Scott Davis Burkett . .

Hon. Chang was most likely was informed in 2016 that Waszczuk’s
unemployment insurance benefits were reinstated by EDD in May 2014, but
most likely she was not informed that somebody did something, and
Waszczuk’s benefits vanished without explanation. Let the District Attorney
and other authorities find out what happened to Waszczuk’s benefits.

This is not the first time that the attorney Porter Scott used the wrong Trial
Court Department to deceive the Court, Judge, Court Clerk, and Waszczuk. Not
so long ago, in September 2016, Porter Scott, two attorneys, David Burkett and
Daniel Bardzell, purposely filed a Motion to Compel in Department 54 instead
of Department 53 in Case No. 2013-00155479-CU-WT Jaroslaw Waszczuk v.
The Regents of the University of California. They deceived Waszczuk and
Judge David Brown to obtain order and sanctions against Waszczuk from the
Judge in Department 54, and they precluded Waszczuk from attending the
Court Hearing. See “via Court Case Access the Court Tentative Ruling Dept. 53
at November 14, 2018.”

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For the above reason alone, the Court should grant Waszczuk Petition for
Rehearing or modify the opinion and reverse the trial court decision that denied
Waszczuk Writ of Mandamus and his unemployment benefits .

C. The Oral Argument on December 12, 2018

On December 12, 2018, Waszczuk argued the case for himself in Pro Per.
David Burkett argued for RPii, the Regents of the University of California. The
legal counsel from the California Attorney General Office Ashante Norton
representing Primary Respondent the California Unemployment Insurance
Appeal Board (CUIAB)

Ashante Norton, did not attend the 15-minute Oral Argument at 3DCA .
Apparently, CUIAB’s legal counsel Ashante Norton had nothing to say if she
failed to submit the Respondent Brief in September 2016 . She had nothing to
say during the Oral Argument in the Trial Court in February 2015. ( See the
February 27, 2015 Reporter Transcript on Appeal )

During the Oral Argument, Waszczuk pointed out to the Court that he worked
only one month during his last employee evaluation period and emphasized
that RPii deprived him of administrative remedies, discriminated against him,
and violating its own policies and not letting Waszczuk to appeal his
suspension May 2011 under UC Davis’ Three Steps Complaint Resolution
Policies. On this subject, Waszczuk cited Kim v. Regents of University of
California (2000) 80 Cal.App.4th 160; Palmer v. Regents of University of
California (203)107 Cal. App. 4th (132 Cal.Rpt2d567); and Janet Campbell v.
Regents of the university of California S113275; Ct App. 1/1/ A097560.
Waszczuk also informed the Court during the Oral Argument that his
unemployment insurance benefits were reinstated by EDD in May 2014 but
were never paid. Waszczuk is not sure why RPii’s legal counsel did not have
much to say during the Oral Argument besides repeating the slanderous and

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defacing statements against Waszczuk that were fabricated by UCDMC HR
lawyers in 2011-2012 during Waszczuk’s forced absence from work for over
1 year.

For the safety reason Waszczuk brought to the hearing his friend and former
coworker, William Buckans, who is still working in the UC Davis Medical
Center 27 MW cogeneration power plant, where Waszczuk was employed
from June 1999 to March 2007. William Buckans was a witness during
Waszczuk’s hostile hearing with ALJ on February 13, 2013. ALJ Tays who
prohibited Buckans from testifying. Waszczuk was glad that he brought
Buckans to the Court of Appeal on December 12, 2018. Waszczuk an Buckans
noticed that the Court was completely unpopulated and empty prior, during,
and after the Oral Argument on 12/12/2018 Since RPii’s legal counsel from
Porter Scott, David Burkett, attempted to provoke a physical confrontation
with Waszczuk on August 28, 2017, after the Oral Argument, the Court did
not react after it was informed that Waszczuk considered the Court of Appeal
building to be an unsafe place to be alone.

D. Prior the Oral Argument


Prior to the Oral Argument on December 4, 2018, pursuant to California Rules
of Court, rule 8.252, and Code of Civil Procedure Section 909, Waszczuk filed
the Motion for the New Evidence on Appeal, most of which Waszczuk
discovered after the case was briefed. Waszczuk received most of the new
evidence/documents with the Production of Documents from the
defendants/RPii legal counsels in the cross-referenced case Waszczuk v.
Regents of the University of California et al., Case No. C079524, Sacramento
County Superior Court, Jaroslaw Waszczuk v. The Regents of the University of
California.

https://www.scribd.com/document/397236715/Case-No-C079254-December-
2012-New-Evidence-on-Appeal-Motion

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Through the new clear and undisputed evidence, Waszczuk wanted to show
the Court that on in 2011 and on September 25, 2012, he was eligible for the
Clinical Enterprise Management Recognition Plan 2 (“Plan”) CEMRP2 award
like any other employee; instead, he was slandered, defaced, and libeled with
the RPii Notice to Dismiss and UC Davis Police poster, which included
Waszczuk’s photo and description, and which was distributed around UC
Davis Campuses on September 26, 2012, without Waszczuk’s knowledge.

CEMRP2, as mentioned in the email title, stands for the University of


California Clinical Enterprise Management Recognition Plan 2 (“Plan”),
which is governed by Personnel Policies for Staff Members 34 (Incentive and
Recognition Award Plans – Managers & Senior Professionals and
Professional & Support Staff).

https://policy.ucop.edu/_files/policies/CEMRP2-Plan.pdf

https://policy.ucop.edu/doc/4010430/PPSM-34

Without any objection from the Respondents to Waszczuk motion the Court
denied Waszczuk’s motion in the same manner as the other motions
Waszczuk previously filed with the 3DCA

For the above reason alone, the Court should grant Waszczuk a Petition for
Rehearing or modify the opinion and reverse the trial court decision that
denied Waszczuk Writ of Mandamus.

IV. THE REVIEW OF THE WASZCZUK UNEMPLOYMENT


INSURANCE BENEFITS CLAIM BY THE STATE OF
CALIFORNIA EMPLOYMENT DEVELOPMENET
DEPARTMENT (EDD) AND THE CALIFORNIA
UNEMPLOYMENT INSURANCE OFFICE OF THE APEPALS
ADMINISTRATIVE LAW JUDGE (ALJ) MARILYN TAYS

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A. The Claim Filed with (EDD) - Case No. 0410

On December 16, 2012, Waszczuk filed the claim with the EDD via Internet
for unemployment insurance benefits (AOB Page No. 5); AR 3-4.

On December 21, 2012, the EDD, San Bernardino office mailed to RPii the
NOTICE OF UNEMPLOYMENT INSURANCE CLAIM filed by Waszczuk
with the following instructions: AR 139.

• This is a notice that a claim for unemployment insurance benefits has


been filed. Forward it immediately to persons within your organization
who are responsible for handling claims. The time limit for replying is
10 days from the mail date shown above. Failure to respond may result
in an increased employment tax rate.
On December 26, 2012, Waszczuk received NOTIFICATION OF
UNEMPLOYMENT INSURANCE BENEFITS ELIGIBILITY INTERVIEW
from the EDD’s San Bernardino office. The notification was dated 12/24/2012
and stated that the interview by phone was scheduled for January 4, 2013.
On the same day, December 26, 2012, Waszczuk sent by U.S. Express
Overnight Mail five pages of specific responses to the EDD’s nine scheduled
interview questions about Waszczuk’s employment termination (AOB P. 6);
AR 27-31.
On December 26, 2012, the EDD San Diego Call Center, Chula Vista office,
sent Waszczuk the NOTICE OF UNEMPLOYMENT INSURANCE AWARD
with a beginning date of 12/16/2012 and ending date of 12/14/2013 with a
weekly benefit amount of $450.00.
B. The UC Davis HR Unemployment Insurance (UI) Coordinator
Holly Sohor’s deception and lies

On January 2, 2013, RPii, UC Davis HR Unemployment Insurance (UI)


Coordinator Holly Sohor sent the EDD a response to the Notice of
Unemployment Insurance Claim filed by Waszczuk on December 16, 2012,

19
for the above referenced employee, stating that she was late with the response
due to closure of the university from 12/24/12 through 1/1/13 for the winter
holidays.
The UC Davis HR UI coordinator lied to the EDD stating that she was late
because the university was closed for the winter holidays. The university was
closed for students and faculty, not for employees and HR staff. The
December 2012 UC Davis Weekly Payroll Calendar shows that December
26-28, 2012, were normal working days for UC Davis employees and HR
staff.
https://health.ucdavis.edu/iphi/resources/2012_Biweekly_Payroll[1].pdf
[Section 1142(a) of the UI Code] provides:
• That an employer who willfully makes a false statement or
representation, or willfully fails to report a material fact in connection
with a separation issue may be assessed a penalty of up to 10 times the
claimant’s weekly benefit amount.
Waszczuk would not bring up the issue of the RPii late response and Ms.
Sohor’s lies and slanderous statements in her response, but in 2014, California
Attorney General Ashante Norton, who represented and still represents in
absentia the California Unemployment Insurance Appeals Board (CUIAB) in
coordinated action with the UC Office of the General counsel’s four attorneys,
attacked Waszczuk’s Writ of Mandate with Demurrer in an attempt to end
Waszczuk’s Petition for Writ of Mandate case. (CT 16-23; 35-37) The
allegation of the CUIAB and RPii was that Waszczuk filed the Petition for
Writ on December 2, 2013, two days after the statute of limitations had run
out; thus, Waszczuk violated Unemployment Insurance Code § 410, which
states:
• Notwithstanding any other provision of law, the right of the director, or
of any other party except as provided by Sections 1241, 1243, and
5313, to seek judicial review from an appeals board decision shall be
exercised not later than six months after the date of the decision of the

20
appeals board or the date on which the decision is designated as a
precedent decision, whichever is later.

As the best example how strict EDD is with submitting timely documents
to EDD is the another EDD’s Waszczuk’ case reviewed by ALJ Another
CUIAB Administrative Law Judge (ALJ) Hon. Jacob L. Rambo affirmed the
EDD decision on April 29, 2013, which denied Waszczuk eligibility for
benefits under UIC 1253(a) for the two weeks of benefits ending on January
26, 2013, because Waszczuk misplaced the claim form and submitted it four
days late (CUIAB Case No. 4797872). If the attorneys from the Porter Scott
Law Corporation representing CUIAB , Hon. Judge Chang and writing briefs
for the Court of Appeal on UC Regents behalf than EDD office employees has
no much to say in reviewing unemployment insurance benefits claims filed
against university .

C. The Waszczuk’ Appeal from the 12/05/2012 Notice of Dismiss


Prior the interview with EDD officer, Waszczuk on January 3, 2013, pursuant
to the UC Davis Complaint Resolution Policy, Waszczuk submitted to UC
Davis Medical Center (UCDMC) HR Labor Relations (LR) the Step I Appeal
from the December 5, 2012, Notice of Dismissal (AR 13-19).
• The university’s written response should be issued to the complainant
along with instructions for further appeal within 30 calendar days of the
complaint being filed with due date February 3, 2013.
https://ucdavispolicy.ellucid.com/documents/view/211/231/
D. The January 4, 2013 EDD’s Interview with Waszczuk
On January 4, 2013, an EDD officer interviewed Waszczuk by phone. The
interviewer was very unpleasant and EDD officer tried force Waszczuk to
admit wrongdoing. (AOB Page No. 6)
According to the RECORD OF CLAIM STATUS INTERVIEW
MISCONDUCT (MC) (AR 133-136), the EDD officer

21
E. The January 4, 2013 EDD’s Interview with Phyllis Reginelli about
Termination of Waszczuk’s employment with RPii in August -
September 2011.
On January 8, 2013, EDD also interviewed UCDMC Plant Operation
(PO&M) Department Administrative Supervisor Phyllis Reginelli, or, in other
words, PO&M Department Manager Charles Witcher’s secretary (AR 133-
136). Waszczuk knew Ms. Reginelli through his 13 years of employment with
the UCDMC. In her interview with the EDD, Ms. Reginelli testified during the
interview that August 31, 2011, as the date of Waszczuk’s employment
termination and December 5, 2012, as the last day of work (LDW) (AR 133).

Ms. Reginelli’s January 8, 2013, interview testimony about Waszczuk’s


termination of employment on August 31, 2011, corresponds with facts
Waszczuk provided in AR 545-547 and information Waszczuk provided in the
Clerk’s Transcript on Appeal (CT 188,189,190).

The only difference is that in 2011, Waszczuk’s employment


termination, the lasts day of work (LDW) was set by RPii not for September
25, 2012, but for September 23, 2011. The RPii’s ill-planned Waszczuk’s
employment termination on September 23, 2011, by RPii was prematurely
disclosed in joy by the individual who was given Waszczuk’s job and
Waszczuk’s secluded office as the accommodation for his son, the twice-
convicted child pornography felon, to have a cozy place for unlawful access to
the computer to surf the Internet via shop computers (Case: 2:6—cr-00418-
LKK, The United States of America v. Sean Christopher Robideaux, United
States District Court, Eastern District of California, Indictment Violation (S) 18
U.S.C § 2252 () (4)(B)—Possession of Visual Depiction of Minors in Sexually
Explicit Conduct) (CT 01062-01066); (CT 00005).
F. The EDD’s Failure to Resolve Conflicting Information

22
Furthermore, RECORD OF CLAIM STATUS INTERVIEW MISCONDUCT
(MC) ( AR 133-136) Page 3 of 4 § 12 ATTEMPTS TO RESOLVE
CONFLICTING INFORMATION OR OBTAIN INFORMATION FROM
OTHER SOURCES shows that the EDD officer assigned to the claim did not
make any effort to resolve conflicting information and did not interview any
witnesses or even bother to interview Department Head Charles Witcher who
signed the September 25, 2012, Notice of Intent to Dismiss and Termination
Notice dated December 5, 2012, or Waszczuk’s direct manager Patrick Putney.
The termination letter that disqualified Waszczuk from obtaining
unemployment insurance benefits under Section 1256 of Unemployment
Insurance Code 1256 was based on the taken-out-of-context statements from
Waszczuk’s 2011 & 2012 written correspondence to UCDMC management
and HR staff in his and his coworkers’ defense, for whom Waszczuk provided
representation in their complaints against RPii ‘s adverse action and retaliation
. AR 259-269; 276-288; 307-3014; 368; 430-434.
Waszczuk . From the September 1, 2011 to December 5, 2012 RPii thugs kept
Waszczuk hostage in his own residence without letting him know what is his
employment status and harassed Waszczuk with threating correspondence sent
to Waszczuk home and his private e-mail account .
For the above reason alone, the Court should grant Waszczuk’s Petition for
Rehearing or modify the opinion and reverse the trial court decision that denied
Waszczuk’s Writ of Mandamus.
V. THE REVIEW OF WASZCZUK’ UI CLAIM & HEARING WITH
THE ADMINISTRATIVE LAW JUDGE (MARYLYN TAYS - CASE
NO. 4729869

A. ALJ Marylin Tays’ Notice of Hearing

On January 13, 2013, Waszczuk received the EDD’s decision (dated January
11, 2013) to deny Waszczuk’s unemployment benefits (AR 2-3).

23
On January 15, 2013, Waszczuk submitted a Notice of Appeal of the EDD
decision, dated January 11, 2013, to the EDD (AR 100).
On February 2, 2013, Waszczuk received a Notice of Hearing from the
CUIAB. The appeal hearing was scheduled for February 13, 2013, in Stockton,
California, at 3:15 PM. The presiding ALJ was Marilyn Tays (AR 35; Case No.
4729869).
The NOTICE OF HEARING’S SPECIAL INSTRUCTION stated:
CLAIMANT: Appear in person at the time and location.
EMPLOYER: Appear by phone (call collect).
EDD: Appear in person at the location above.
Furthermore, the NOTICE OF HEARING provided the following additional
instructions:

• All parties send any additional documents by 2/7/2013 to the Office of


Appeals at the address shown on the attached address page. If you miss
this deadline, the judge may exclude your documents.
• If an interpreter is needed, call the phone number below immediately.
• If you are appearing in person, bring all documents and witnesses
necessary to support your case. Arrive 15 minutes early to review the
appeal file.
• If you are appearing by phone and have witnesses, contact the Office of
Appeals for instructions.
• IMPORTANT: Read the enclosed “Hearing Information” pamphlet.

B. The Hearing with ALJ Marilyn Tays

On February 13, 2013, at 3:15 pm, Waszczuk attended the scheduled hearing
with his two coworkers—Kenneth Diede and William Buckans—as his
witnesses. The employer, UC Davis, appeared by phone with two UC
representatives—one from the UCDMC HR Office and one from the UC
Davis Unemployment Insurance Office. Waszczuk’s employer did not provide

24
any witnesses who could provide testimony under oath in relation to the
allegations.

C. EDD failed to appear on the February 13, 2013 hearing with ALJ
Marilyn Tays .
The most important witness at the hearing with ALJ was the EDD’s
representative because the appeal was from the EDD’s adverse decision and
EDD denied Waszczuk benefits . The NOTICE OF THE HEARING clearly
instructed the EDD to appear in person, but the EDD did not show and next
after hearing like nothing happened ALJ Tays pleased RPii with defaming
Waszczuk decision and affirmed her hateful behavior toward Waszczk and
his witnesses in her out of blue decision. The EDD officer under oath could
provide information about Waszczuk’s ill-planned Waszczuk ‘s employment
termination on September 23, 2011, which the EDD received by interviewing
UCDMC PO&M Department Administrative Secretary Phyllis Reginelli on
01/08/2013 (AR 133). In addition to the EDD officer’s absence at the hearing,
ALJ Marlin Tays quickly neutralized Waszczuk’s witness and former
coworker William Buckans and did not let him testify.

Waszczuk’s witness William Buckans was the person who on September 23,
2011, at 8:45 am, alerted Waszczuk and department management by e-mail
about Waszczuk’s RPii employment termination on September 23, 2011.

The EDD’s January 8, 2013 interview with Phyllis Reginelli about


Waszczuk’s termination of employment in August -September 2011 and
EDD’s absence at the hearing explained why Waszczuk did not receive in
June or July 2011 his annual employee performance review for the evaluation
period of 2010/2011, which was due in June 2011-August 2011 and was
mandated by the UC Davis Policy PPSM 23.

25
Also these facts explained why ALJ Marylin Tays shut up Waszczuk witness
William Buckans at the very beginning of the hearing and Tays did not let
him testify .

On February 15, 2015, Waszczuk received CUIAB ALJ Marilyn Tays’


decision dated 02/14/2013, which denied unemployment insurance benefits to
Waszczuk based on Waszczuk’s two pieces of correspondence written in his
defense representing himself and defending his coworkers in the dispute with
ruthless and abusive RPii administration and management. Waszczuk’s
representation of himself and his coworkers in the official labor dispute with
RPii is protected by UC policies and procedures, as well as state and federal
law. The Court of Appeal justices are well aware of this.

In her despicable decision , the ALJ did not even bother to specify who
appeared at the 02/13/2013 hearing and who did not and why. The EDD,
which was instructed by CUIAB ALJ Tays to appear in person at the hearing,
was not even mentioned.

ALJ Tays’ decision was mailed the day after the hearing. She did not take
any time to go through the evidence, weigh the evidence, analyze the
evidence and the law, draft her decision, and give staff her final decision
in time for staff to mail it to the parties on February 14, 20I3 (AR 447).

ALJ Tays’ unusual behavior at the hearing and her hatful bias against
Waszczuk and his witnesses, which Waszczuk described in his complaints with
the CUIAB Chief Counsel Office, was clear indication that her decision would
be the same as the September 25, 2012, RPii’’s Notice Intent to Dismiss, or
worse (AOB 12-14) (ARB 45-47) and would the same “de novo” as her
February 13, 2013 “de novo” hearing.

The one reason for ALJ Tays to issue the decision the next day was that friends
from the UCDMC HR department or UCOP Chief Counsel office waited for

26
her ruling to go forward with the Waszczuk Step I Appeal from the December
5, 2012 termination notice . The assigned by HR reviewer of Waszczuk appeal
was almost two weeks late with his decision and waited for affirmation of RPii
Notice , dismissing Waszczuk in December 2012. The Step 1 Appeal was
denied thirty days late, on February 1, 2013 (ARB 33-34) and 15 days after ALJ
issued her libelous and slandering Waszczuk decision . This also was a “shock
and awe “ tactic to discourage Waszczuk from pursuing his claim further

VI. THE “DE NOVO” REVIEW OF THE WASZCZUK’S EDD’S


CLAIM , ALJ DECISION BY THE CUIAB BOARD MEMBERS
MICHAEL ALLEN AND ROY ASHBURN

A. CUAIAB s Case No. AO -31-319805- Decision dated May 31, 2013

The Michael Allen ‘s and Roy Ashburn ‘s “ de novo “ review of the Waszczuk
EDD claim was the ‘de novo” copy and paste of disgusting and malicious “de
novo” ALJ Marilyn Tays rant dated February 14, 2013

B. CUIAB’ Board Members Michael Allen And Roy Ashburn


Assembly Speaker John Perez appointed Michael Allen to CUIAB as member
in January 2013 after Michael Allen lost reelection in 10th Assembly District in
2012 and landed in CUIAB with t a six-figure job of $128,109. It happened just
after Waszczuk employment was terminated by the Regents of the University
of California in December 2012 and just after Waszczuk filed his claim for the
unemployment insurance benefits with EDD .

The other listed CUIBAB member on the “de novo” decision dated May 31,
2013 denying my unemployment insurance benefit was Roy Ashburn . Ashburn
was gay basher in the California Legislature . Asburn was a former John
Perez’s colleague, California State Assemblyman from 1996 to 2002, and as a
California State Senator from 2002 to 2010 .

27
Morally rotten Ashburn was lacking any credibility to serve in public office .
He was gay basher who was cheating on his wife and children for decades by
fulling around with boys in Sacramento Gay bars until he got caught in 2010
by CHP when he was coming back drunk from the gay bar driving in state-
owned SUV.

Michael Allen and Roy Ashburn were perfect candidates to be handpicked by


Speaker John Perez for the job to victimized 62 years old Polish worker on
university corrupted and rotten administration behalf. John Perez in November
2014 became a member of the University of California Board of Regents
appointed by Gov. Jerry Brown

VII. THE REASON FOR REHEARING OR MODIFICATION OF THE


UNPUBLISHED OPINION

A. The Humanitarian Reason

After reading into Paratransit, Inc. v. Unemployment Ins. Appeals Bd.


(2014) 59 Cal.4th 551, 558 (Paratransit) [S204221], it is hard to believe that
Paratransit’s worker Craig Medeiros’ unemployment case actually happened
and was not stopped by the trial court with sanctions against Paratransit for
wrongfully terminating worker Medeiros and for the frivolous Writ of
Mandate. The Supreme Court concluded the opinion as follows:
• Taking into account “the humanitarian purpose of the unemployment
compensation statutes,” and “judging the reasonableness of [Claimant’s]
act from his standpoint in the light of the circumstances facing him and
the knowledge possessed by him at the time,” we find Claimant’s refusal
to sign at the moment was not misconduct but, at most, a good faith error
in judgment that did not disqualify him from unemployment benefits.
(Amador, supra, 35 Cal.3d at p. 683, fn. 9; see Robles, supra, 207
Cal.App.4th at p. 1036; see also Regs. § 1256-30, subd. (d); id., foll.
§ 1256-41, com. foll. ex. 3.) Accordingly, we conclude Claimant is
eligible for unemployment compensation benefits.
Prior to Medeiros’ case being reviewed by the Supreme Court, the only 3DCA

28
Justice Hon. Cole Blease showed humanity in his dissenting statement
written in the 3DCA May 31, 2012, Medeiros case opinion , having
some courage to speak up for worker Craig Medeiros, who was
besieged by his employer lawyers and the of California justice
system which after six years of Medeiros struggle .
The courage and the a few words of Justice Blease’s dissenting
statement have more value for Waszczuk than his unemployment
benefits denied to him by friends of the UC Regents from EDD,
CUIAB and California Courts .
• The Unemployment Insurance Appeals Board determined that the
refusal was at most a good faith error in judgment that did not
disqualify him from receiving unemployment benefits. My
colleagues would reverse the administrative judgment. I disagree.
• I would affirm the judgment of the Unemployment Insurance
Appeals Board.
Justice Blease’s words in defense of deplorable worker Meidrano refreshed
Waszczuk’s memory of the German theologian Martin Niemoller’s courage; he
was not afraid to speak up against the Nazis during Hitler’s era.

Niemoller’s words were as follows:


• Then they came for the trade unionists, and I did not speak out—because
I was not a trade unionist;
• Then they came for the Jews, and I did not speak out—because I was not
a Jew;
• Then they came for me—and there was no one left to speak out for me.

Nazi hunter Simon Wiesenthal’s words related to Adolf Eichmann’s


prosecution were as follows:
• “The world now understands the concept of ‘desk murderer’. We know
that one doesn’t need to be fanatical, sadistic, or mentally ill to murder
millions; that it is enough to be a loyal follower eager to do one’s duty.”
This resembles the justice served to Medeiros and Waszczuk .

29
Hon. Blease must have forgotten Medeiros’ case and the humanitarian purpose
of the unemployment compensation statutes, or the Regents of the University of
California battle with Waszczuk’s is a different ball game than the Paratransit
and Meidranos case. Waszczuk is aware that there is no Geneva Convention,
no prisoners, and no mercy in the the California Courts , especially in 3DCA for
a 67-year-old Polish immigrant. Waszczuk’s any hope for the humanitarian
purpose of the unemployment compensation statutes application is futile.

B. The coincidental relation of the Meidranos case to Waszczuk’s


employment termination in 2012
What caught Waszczuk’s attention in the 3DCA Maidranos case opinion was
the May 31, 2012, date.

May 2012 was full of RPii activities in relation to Waszczuk’s employment,


and May 31, 2012, was the judgment day for Waszczuk’s life and employment
with UC Davis Medical Center (UCDMC). On May 31, 2012, Waszczuk was
lured to the UCDMC premises by the May 11, 2012, notice of suspension to be
assassinated by the specially assembled RPii “Death Squad” or Waszczuk
would be euthanized if survive the gunshot from Lt. James Barbour ‘s Glock .
Lt James Barbour who replaced Lt. Matt Carmichael in UCDMC was assigned
to the task. On that day the supervisor of UCDMC Trauma Unit #11, Karen
Kouertas, was waiting ready to receive Waszczuk .

C. The Reason for Assault on May 31, 2012

The reason was the power sale contract between UC Regents and Sacramento
Municipal Utility District SMUD signed on May 31, 2012, to resume the
surplus power sale from the UCDMC 27 MW cogeneration power plant, which,
in May 2000, triggered the California Energy Crisis described in the “AB 1890”

30
or “ELECTRICITY RESTRUCTURING ACT” of 1996. The manmade crisis
resulted in $40 billion in losses for the California economy and California
taxpayers.

Worth millions of dollars unlawful commodities transactions and related


Megawatts laundering and related to the tax evasion occurred in UC Davis
Medical Center 27 MW cogeneration power plant is well documented in
Federal Regulatory Energy Commission e- library . https://www.ferc.gov/docs-
filing/elibrary.asp

Not only the illegal sale but the any amount of unlawful production or
generation of electricity by the University of California in violation of the 18
C.F.R. § 292.20 requirements, Federal Power Act 16 U.S.C. § 824d(a),
California Public Utilities Code Section 218.5, State of California Unfair
Business Competition law, and Business and Professions Code § 17200 &
California Commodity Law of 1990 (Corp. Code, § 29500 et seq., "CCL") and
7 U.S. Code § 6b and use the illegally generated power for powering the
building in the campuses should be treated by US Department of Treasury and
State of California Franchise Tax as a illegal profit and a gross violation of the
section 501(c)(3) of the Internal Revenue Code of 1954, and the State of
California Revenue and Taxation Code.

Under 18 C.F.R. § 1c it is unlawful for any entity, directly or indirectly, in


connection with the purchase or sale of electric energy or natural gas or the
purchase or sale of transmission or transportation services subject to [Federal
Energy Regulatory Commission] jurisdiction:

• To defraud using any device, scheme or artifice (i.e. intentional or


reckless conduct);
• To make any untrue statement of material fact or omit a material
fact; or
• To engage in any act, practice or course of business that operates or

31
would operate as a fraud or deceit.
Waszczuk believe that 3DCA Justice Hon. Andrea Lynn Hoch as a former
member of the Attorney General Energy and 2003 recipient of the Team Award
is very familiar with the subject of the California Energy Crisis and the January
2007 Settlement-Agreement which involved the UCDMC 27 MW
cogeneration plant and was approved by the Federal Energy Regulatory
Commission (FERC) on March March 1, 2007. The January 2007 Settlement -
Agreement ready to be approved by FERC triggered a vicious attack on
Waszczuk in January 2007 and witch hunt in attempt to erase Waszczuk from
the UCDMC landscape .
D. The Randy Vergos , Craig Meidranos and Jerry Waszczuk

Also, the May 31, 2012, Paratransit, Inc. v. Unemployment Ins. Appeals Bd.
3DCA opinion reminded Waszczuk of the 3DCA January 2007 Vergas v.
McNeal (2007) 35 Cal.App.4th 1387, 1399 opinion, which was issued in a
similar situation related to Waszczuk’s employment with UCDMC when
Waszczuk was attacked and assaulted in 2006-2007 in similar way as in
2011-2012. In the Vergos case, a UC Davis employee’s life was destroyed
by his own lawyer and 3DCA justices. Furthermore, the Vergos case was
linked to sodomy, rape, sexual predation, and gay bashing. The Vergos case
was never reviewed by the California Supreme Court. The plaintiff, Randy
Vergos, was betrayed by his own lawyers, and the case was sold to Porter
Scott’s attorneys, Michael Pott and George Acero. Waszczuk had some chat
with attorney who argued in the Vergos case in 3DCA. The 2007 3DCA
Vergos opinion were used by the 3DCA against Waszczuk in the anti-
SLAPP motion, Case No. C079524, Waszczuk v. The Regents of California
et al. after the Nam v. Regents of University of California. Cal.App.5th 1176
(2016) 205 Cal. Rptr. 3d 687 and Park v. Board of Trustees of the California
State University (May 4, 2017), No. S229728 Cal.5th (Park) and the

32
E. The Important Factual and Evidentiary Errors in the 3 DCA
C079254 Case Opinion
As Waszczuk noticed in the Statement of Review, in performing de novo
review, the appellate court must view the evidence in a light favorable to the
plaintiff as the losing party, liberally construing the plaintiff’s evidentiary
submission while strictly scrutinizing the defendant’s own showing, and
resolving any evidentiary doubts or ambiguities in the plaintiff’s favor.
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Aguilar Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.)

The EDD, ALJ Marilyn Tays, CUIAB’s board members, trial court Judge Hon.
Chang, and the 3DCA attorney who wrote the opinion failed to establish when
Waszczuk actually worked during the period of his two evaluations in 2010/
2011, and2011/ 2012; how Waszczuk was paid and how much; and what was
Waszczuk’s status as an employee during the relevant related related to the
Waszczuk claim for unemployment insurance benefit .

F. The Waszczuk’ employment status with the university of California


in 2010-2012
• In 2010, Waszczuk worked a full year in the UCDMC HVAC shop as an
exempt employee with the title of Associate Development Engineer and
received a good performance review for the evaluation period of July 1,
2009, to June 30, 2010, from his two shop supervisors, Patrick Putney
and Dorin Daniliuc. A salary of $70,000 was provided to Waszczuk
according to the February 2009 Settlement Agreement signed by
Waszczuk and the Regents of the University of California.

• In 2011, Waszczuk worked a full evaluation period as exempt employee


in the UCDMC HVAC shop as Associate Development Engineer and
received a salary of $70,000 per the February 2009 Settlement
Agreement.

33
In May 2011, Waszczuk’s annual salary was increased to $71,640 due to
his good job performance and outstanding employment record.
From June 22, 2011, to June 24, 2011, Waszczuk took three emergency
vacations because his duty and job were sabotaged. Waszczuk was
stalked by his manager Patrick Putney, and Waszczuk’s employment
became intolerable.
Waszczuk worked a full evaluation period in 2010-2011, from July 1,
2010, to June 30, 2011. Waszczuk was not provided with evaluation by
his two supervisors, Patrick Putney and Dorin Daniliuc, which should
approved by the Department Head Charles Witcher, who right away
after approval should send the evaluation to HR Waszczuk’ personnel
file as it was mandated by UC Policy PPSM 23.

• From August 3, 2011, to September 1, 2011, Waszczuk was placed by


his physician, Dr. Harvey Hashimoto from Lodi, on work-related stress
leave until September 1, 2011, due to the impossibility to work because
his two supervisors, Patrick Putney and Dorin Daniliuc, and Assistant
Manager Dennis Curry, who were friends with Waszczuk, were ordered
by HR to attack Waszczuk, and Waszczuk did not know why. Waszczuk
saw a psychologist to cope with the situation and stress. Waszczuk’s
psychologist was Dr. Franklin Bernhoft from Lodi.
• On August 31, 2011 (the last day of Waszczuk’s stress-related sick
leave), Waszczuk’s department manager sent Waszczuk an e-mail and
placed Waszczuk unlawfully on investigatory leave per UC Policy
PPSM 63, which is basically part of UC’s employment separation
policies and procedures. This was during Waszczuk’s unfinished sick
leave, which was paid from Waszczuk’s accrued sick leave and vacation
hours. The employer had no legal right to change Waszczuk’s status
from sick employee to investigated employee without the doctor and

34
psychologist’s approval. Not providing Waszczuk with an annual
evaluation and placing Waszczuk on investigatory leave meant
termination of employment.

• The investigatory leave should not have lasted more than 15 days, and
Waszczuk should have received an extension after September 15, 2011.
However, Waszczuk’s termination was set for September 23, 2011, so
evaluation and extension of investigatory leave were unnecessary.
• On the morning of September 23, 2011, confidential information about
Waszczuk’s employment termination was prematurely leaked.
Waszczuk’s former coworker from the UCDMC 27 MW cogeneration
plant, William Buckans, alerted Waszczuk, department management, and
HR by e-mail and phone. Then, Waszczuk’s physician Dr. Hashimoto
and Waszczuk’s psychologist Franklin Bernhoft, Ph.D., placed
Waszczuk on stress-related sick leave.
Waszczuk’s salary was paid by his accrued sick leave and vacation hours
until Waszczuk ran out of hours in December 2011.

• On December 5, 2011, Waszczuk’s Department Manager Charles


Witcher sent Waszczuk a letter and placed Waszczuk again on
investigatory leave (PPSM 63) effective December 12, 2011, during
Waszczuk’s medical leave and attempted to lure Waszczuk to the
premises on December 12, 2011. Waszczuk ignored his employer’s
provocative request.
• On December 12, 2011, Waszczuk’s employment status during his
medical leave was changed to administrative leave without pay; his
medical, dental, and other benefits were canceled. Waszczuk was fired
without being fired.

35
• On December 22, 2011, Waszczuk’s employment status during his
official medical leave was changed again to investigatory leave, and
Waszczuk’s official title, for an unknown reason, was changed from
Associate Development Engineer.

• On January 5, 2012, Waszczuk ended his medical leave and did not ask
his doctor for an extension, waiting for an employment termination
notice. After such a roller-coaster in 2011, Waszczuk did not have a clue
for the next four years why his employer was assaulting him, even
during his medical leave. After Waszczuk’s medical leave ended,
Waszczuk did not receive any notification about his employment status
and was left in limbo but on the UC payroll.
Waszczuk’s income for 2011 was $62,919 instead of $71,640, almost
$10,000 less than it should have been.

After Waszczuk ended his medical -leave on January 5, 2012 , RPii did not
request from Waszczuk to provide the mandatory UC DAVIS HEALTH
SYSTEM RETURN TO WORK CLEARANCE which mandated that :

• EMPLOYEE: You must provide medical certification of ability to


perform job duty to your supervisor prior to return to work date when
returning from a medical leave of absence.

On May 11, 2011, Waszczuk received a Notice of Suspension for 10 days


without pay without even checking with Waszczuk if he sick or in hospital and
ordered Waszczuk by the Letter of Suspension to report to work on May 31,
2012 without mandatory UC Davis Health System Return to Work Clearance
mentioned above . The Court only could imagine what the RPii ‘UC Davis
Death Squad “ was brewing for Waszczuk on May 31, 2012 after his almost
one year “persona non grata “ status.

36
The suspension notice was used as a tool to lure Waszczuk to the UCDMC
premises on May 31, 2012, to provoke him and end his employment in the
UCDMC Trauma Unit No. 11.
To prime Waszczuk for provocation, UCDMC HR thugs served letters of
expectations to two of Waszczuk’s coworkers, Kenny Diede and William
Buckans, to whom Waszczuk was providing representation in adverse action in
appeals under UC Davis Policy PPSM 70. Waszczuk’s two shop supervisors,
Patrick Putney and Dorin Daniliuc, were suspended in May 2012 as well, for
reasons unknown to Waszczuk for stealing and cheating their employer and
other more serious reasons.

On May 31, 2012, Waszczuk arrived on the UCDMC campus and thought that
he was returning to work after almost one year of absence and persona non
grata status . Instead, Waszczuk’s Department Manager Charles Witcher,
served Waszczuk a “provocation “ which was written just before Waszczuk
arrival to UCDMC arrival given to Witcher by RPii HR thugs with order to
serve it to Waszczuk to provoke Waszczuk for physical confrontation with
Witcher . Waszczuk calmly walked away from the provocation, which was
recorded in an e-mail correspondence on June 1, 2012, by one of the UC Davis
Death Squad members, Hugh Parker, with the following words:

• “Mr. Waszczuk returned to work yesterday from his suspension and was
placed back on investigatory leave the same day. At issue are writings
sent by Mr. Waszczuk while on leave. Mr. Waszczuk did not display
any anger when told he was being place on investigatory leave.”
Hugh R. Parker
After five minutes meeting with Witcher Waszczuk did no see for one year ,
Waszczuk went to HR building as instructed by Witcher to meet HR supervisor
Brent Seifert who was very surprised that Waszczuk show up for meeting.
Waszczuk expressed his feeling about the meeting with Seifert in his June 1,
2012 by the OPEN letter to him which was entitled:” I FEEL AGAIN LIKE

37
A HUNTED JEW DURING THE HOLOCAUST “ making reference to the
similar letter Waszczuk wrote to California Legislators in October 2011.

G. Aftermath the May 31, 2012 Unsuccessful Provocation to end


Waszczuk employment in the UCDMC Trauma Unit # 11
Waszczuk received a $182.00 paycheck after the May 11, 2012, suspension
without pay, in addition to a $10,000 loss in income in 2011 due to the RPii
thugs’ assault.

Following Waszczuk’s May 11, 2012 suspension from work and further
provocation to end
Waszczuk’s employment in the UCDMC Trauma Unit # 11, RPii fired
UCDMC HT Labor Relation Manager Humberto ‘Mike” Garcia and his
assistant HR attorney Jill Vandeviver who was handling Waszczuk’s case, in
January -June 2012.
Mike Garcia had met Waszczuk in February 2012 for half hour to informally
resolve Waszczuk’s employment situation with the university in a harsh, “take
no prisoners” manner. Waszczuk had proposed to Garcia a settlement in which
university would pay Waszczuk a lump sum amount equal to Waszczuk’s
wages until he would receive his full Social Security income in 2017 and
Waszczuk would walk away from the university.
Instead of settlement, RPii assembled what could be described as a Death
Squad to resolve Waszczuk employment, beginning by firing Garcia and
Vandeviver. Concurrent with the firing of Garcia and Vandeviver in June 2012,
RPii fired Waszczuk’s superior, Department Assistant Dennis Curry, only two
weeks before his retirement from university and
after 35 years of service.
Curry then sent threatening and provocative email to Waszczuk on June 6, 2012
and attacked Waszczuk’s coworker Kenny Diede to whom Waszczuk was
providing representation. RPii did not give up after its May 31, 2012

38
provocation, using its connections in an attempt to frame Waszczuk for a crime
within the City of Lodi. Waszczuk had lived in Lodi since 1989 and, further,
has no any record of United States of America law violation since Waszczuk
was deported by communists in 1982 from his native country Poland
dominated by Soviets since WW II.
Following RPii’s provocations and its attempt to frame Waszczuk with Lodi Police,
RPii, in July 2012, forced the retirement of UC Davis Assistant Vice Chancellor Dr.
Shelton Duruisseau. A long time UCDMC employee, Dr. Shelton Duruisseau, gave
an angry interview on August 6, 2012 to the Sacramento-based African-American
magazine Sub Cultural Hub.
Dr. Shelton Duruisseau had, with UCDMC executive Director Robert, participated in
2006-2009 witch hunt against Waszczuk, so in 2011 he was upset by the fact that
Waszczuk was not destroyed on May 31, 2012 by the assembled “UC Davis Death
Squad” and that the signed on May 31, 2012 new Power Purchase Agreement with
SMUD was placed into abeyance.
The magazine interview was conducted by Donna Michelle Ramos on and was
entitled "A Look
Back." Shelton Duruisseau was bragging during the interview about the UCDMC
27MW cogeneration plant's tens of millions in illegal tax free profit which had been
generated by the unlawful power sale through gauged prices. Most likely the host of
interview Donna Michelle Ramos had no any clue what the cogeneration plant or
Central Plant stand for and why the plant was only using 9% of its generating 27 MW
capacity. During the interview Shelton Duruisseau portrayed himself as the one who
convinced the university to build its 27 MW co-generation plant in1995-1998 on the
UCDMC campus, where demand for power was less than 5 MWh.
The Shelton Duruisseau interview was, in its way, revenge against other UC white
collar criminals that since February 2009 millions of dollars of tax free dirty cash was
Lost; Duruisseau was angered at not getting his share since 2009 for his effort to make
“megawatt laundering” from UCDMC successful again
• MEGAWATT LAUNDERING IS THE TERM, ANALOGOUS TO
MONEY LAUNDERING, COINED TO DESCRIBE THE PROCESS

39
OF OBSCURING THE TRUE ORIGINS OF SPECIFIC QUANTITIES
OF ELECTRICITY BEING SOLD ON THE ENERGY MARKET.
The unsuccessful attempt to assassinate Waszczuk on May 31, 2012 was the most
likely reason for the Shelton Duruisseau's interview to push UCOP and UC Davis
“gangsters” to eliminate Waszczuk and resume the dirty cash flow from the UCDMC
27 MW cogeneration plant.
After Waszczuk signed the Settlement-Agreement with Regents in February 2009 the
unlawful power laundering from UCDMC 27 MW plant had ceased. The surplus
unsold
power from the UCDMC 27 MW would be worth today approximate $80,000,000 tax
free cash to share among participating in this criminal enterprise.
Ten days after the Shelton Duruisseau's interview, on August 6, 2012, Waszczuk
received from RPii the last Investigatory Leave letter stating that the Investigatory
Leave is extended for another month and half to September 28, 2012. On September
13, 2012 UCOP’s Office of the General Counsel led by Charles Robinson since
January 2007 gave the order to their henchmen at UCDMC to terminate Waszczuk
and distribute a libelous and humiliating Waszczuk a Police Poster with Waszczuk
photo and description on , defaming Waszczuk.
Waszczuk’s employment was finally terminated on December 5, 2012, at which
time Waszczuk was 61 years old. Today he is close to 68.
Hopefully, the specific information about Waszczuk’s employment and
RPii’s ruthless assaults that violated Waszczuk’s employee, civil, and
human rights will change the justice’s perception of what really happened
to Waszczuk and why and the Court shall modify the December 12, 2018,
opinion without remarks about rambling.

VIII. THE STORY BEHIND WASZCZUK’S MAY 3, 2012, E-MAIL


ENTITLED “MEETING WITH MCGRATH 5/2/2012,” WHICH
WAS SENT TO UCDMC HR LABOR RELATIONS MANAGER
HUMBERTO “MIKE” GARCIA-COLUMBINE MASACRE
STORY

40
A. Hostility in the UCDMC 27 Megawatt Cogeneration Plant
“Central Plant”
Waszczuk was defending William Buckans and another Central Plant
worker, Rick Tunello, from bullies who called themselves the “Jackson
Five” and attacked William Buckans and Rick Tunello in a team effort with
the plant supervisor, who brought them to the plant. Rick Tunello worked
before with Waszczuk prior for different employer before the university.
He quit his job with UCDMC in 2006 on Waszczuk’s advice after he got
the offer to work at Folsom Prison. Rick Tunello psychologically was on
the edge and was well armed when he quit his Central Plant operator job at
UCDMC after he was wrongfully accused and suspended without pay for
allegedly missing a critical hospital freezer alarm. The missed alarm
resulted in $25,000 in losses.
Waszczuk was able to prove that it was not Tunello’s fault, and his
suspension was nullified, but Tunello, with Waszczuk’s strong advice, left
the job.
In 2007-2008, Waszczuk assisted William Buckans in the witch hunt
investigation against him, which was led by UC Davis Assistant Vice
Chancellor Dennis Shimek. The witch hunt was orchestrated by two
UCDMC HR LR managers, Mike Sheesley and Stephen Chilcott, as a
retaliation against Buckans for reporting in August 2005 the massive
machine oil discharge to the Sacramento River via the storm drain from the
faulty Cooling Tower 24 gear boxes. William Buckans reported the
unlawful oil discharge to draw management’s attention to the fact that he
was injured on a slippery oil surface underneath the cooling tower floor and
that he was being constantly bullied. Management did not care at all to fix
the problems and did not stop the bullies from attacking him and
demanding that William Buckans be fired from his job.

41
Vice Chancellor Shimek’s name resurfaced in 2017 along with the name of
deceased UC Davis Chancellor Emeritus Larry Vanderhoef, who was
euthanized in the UCDMC on October 15, 2015. Shimek’s and
Vanderhoef’s names were brought to the surface by a “Mee Too” story
published in 2017 in the “Davis Enterprise”:

https://www.scribd.com/document/374906023/DANNY-GRAY-MeToo-
Parts-Unknown-Chapter-I-VIII.

The story stated that for two decades, Shimek and Vanderhoef allegedly
condoned the rape of a gay student, Danny Gray, by UC Davis Symphony
Orchestra Conductor Kern Hollomoan, who appeared as the UC Davis HR
“witch hunter” in Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1399
(Vergos), siding with sexual predator UC Davis Assistant Vice Chancellor
Allen Tollefson.

B. William Buckans’ 5/2/2012 e-mail to UCDMC HR attorney Jill


Vandeviver

To the best of Waszczuk’s recollection, on May 2, 2012, Waszczuk’s


former Central Plant coworker William Buckans copied Waszczuk on the
e-mail about hostility toward him at the UCDMC cogeneration plant (where
Waszczuk was employed from June 1999 to March 2007) that he sent to
HR attorney Jill Vandeviver, HR LR Manager Humberto Mike Garcia,
Department Head Charles Witcher, and UCDMC CEO Ann Madden Rice.
After William Buckans copied his e-mail to Waszczuk and others, he
phoned Waszczuk very upset, disturbed, and distraught and sought help. At
the relevant time, Waszczuk was Buckans’ official representative in the
sexual and general harassment complaint he filed under UC Policies and
Procedures with UCDMC HR against his coworkers from the cogeneration

42
facility Central Plant who officially, without any hesitation, were
demanding that the plant manager fire William Buckans.
William Buckans’ 5/2/2012 e-mail included in tone of anger remarks about
the Central Plant operator Todd Georlich’s who committed suicide or was
helped by somebody to kill himself .Waszczuk had never noticed this
before, and was convinced that it was his civil duty to alert UCDMC
Management and UC Davis Police about the anger Buckans displayed in
the e-mail and phone conversation with Waszczuk after confrontation with
Central Plant Manager Steve McGrath in the Central Plant parking lot,
where Buckans went when he was on medical leave to confront McGrath
about his hostility.
On May 3, 2012, Waszczuk forwarded Buckans’ 5/2/2012 e-mail to HR
Manager Humberto Garcia and others with a comment related to the
“Columbine School Tragedy” to make them aware of Buckans’ anger and
to take care of business regardless of Waszczuk’s own employment
situation.
C. Waszczuk wrote the following in his 5/3/2012 e-mail:
• William is very opposite to my character and is taking abuse for long
time like a kid in the school who has been defenselessly and
hopelessly bullied by pack of wolves. I am not psychologist but I
read the William's letter as some story about Columbine where two
kids were
were picked on and tormented. We no need Columbine School
tragedy in the Central Plant . We had there one tragedy with Todd
Georlich which I believe has been triggered by Central Plant hostile
environment
I am using my pen to defend myself and don't own gun and I don't
like guns but not everybody defending themselves like me with a
pen and written words Because I am getting very tired and disturbed
of this whole situation , I am seriously thinking to press criminal
charges with the District Attorney Office against Putney, Curry ,
Witcher, Nichols and Chilcott

43
Waszczuk’s grammar and awkward written statements might not look good
in the e-mail, but the e-mail was not about Waszczuk’s literacy and English
writing skills. Waszczuk was expecting somebody to talk to Buckans, calm
him down, and offer him psychological help in the HR Academic and Staff
Assistance Program (ASAP) office.
• The ASAP offers confidential, cost-free assessment, intervention,
consultation, and referral services to all UC Davis and UC Davis Health
faculty and staff, as well as their immediate families.
https://hr.ucdavis.edu/departments/asap

Waszczuk could not use this HR service because he was kept hostage in his
own home and considered a persona non grata by RPii for almost year and
a half.
D. Letters of Expectation Served to William Buckans and Kenneth
Diede in May 2012

https://www.scribd.com/document/397235474/May-2012-
Buckans-Diede-Letters-of-Expectation-UCDMC

Instead of offering help to William Buckans, UCDMC’s ruthless HR thugs


served Waszczuk a Letter of Suspension for 10 days without pay on May
11, 2012; they also served a Letter of Expectation to Waszczuk’s coworker
Kenny Diede with out-of-the-blue accusations. Waszczuk provided
representation to Kenneth Diede in his retaliation complaint because he
reported a twice-convicted child pornography felon who was accessing the
HVAC shop computer with the permission of HVAC shop supervisor
Patrick Putney and Dorin Daniliuc and their superior Dennis Curry. The
mentioned individual was not a UC employee and was on five years’
probation for his crimes, per federal court judge order. He was prohibited
from touching any electronic device that was connected to the Internet.
Following Waszczuk’s suspension and the Letter of Expectation to Kenny

44
Diede, on May 23, 2012, instead of getting help from management and the
HR ASAP office, William Buckans was served with a nasty Letter of
Expectation in relation to his anger and confrontation with Central Plant
Manager Steve McGrath on May 2, 2012, in the Central Plant parking lot
when Buckans was on medical leave.

The May 23 Letter of Expectation served to William Buckans stated


the following:
• I am writing this letter of expectation to you for unprofessional
communication regarding an interaction you had with Steven
McGrath on May 2, 2012.
On May 2, 2012, you called in sick prior to the start of your shift
(6:30 a.m.). You then drove into the Central Plant to speak with
Steve McGrath face to face at 6:30 a.rm You confronted Mr.
McGrath (your supervisor) just as he arrived for work. During this
confrontation you repeatedly mentioned that you were mad and
pissed. You were agitated and had a raised voice. This is
concerning because you had already called in sick, yet still came to
work, and you appeared distraught. The concern is with the time,
manner, and place in which you chose to convey your concerns The
proper way to bring forward a complaint is to schedule time with
your supervisor In advance or approach him or her while at work is
the supervisor Is available. If you are ill, you need to stay home and
get welt. Coming Into work, other than for scheduled medical
appointments, is inappropriate on days you call in sick.’
The Letter of Expectation served to William Buckans only partially
described what actually happened on May 2, 2012, and how angry he was
on that day.

Buckans got so angry on May 23, 2012, when he was served the Letter of
Expectation that Waszczuk wrote a long, open letter to HR attorney Jill
Vandeviver on May 24, 2012, entitled “REVENGE AND RETALIATION
IS NOT WISE.”

E. May 30, 2012, Stress-Management Class

45
To calm the situation, on May 23, 2012, Waszczuk signed up for a stress-
management class hosted by HR ASAP social worker Marjore Tragodon-
Shock and Worker Compensation HR Manager Hugh Parker. Waszczuk
convinced his two very upset and agitated coworkers William Buckans and
Kenny Diede to sign up for the class as well.

The stress-management class offered solutions to control anger, as


follows:
• A class on managing stress and anger and maintaining good working
relationships with co-workers will be held on Wednesday, May 30,
from 1-2:30 pm. In Tycon III, room 2400.Sponsored by Training and
Development, "Stress Management" will include a video and case
vignettes for enrollees to discuss. Participants will learn how to
identify their anger triggers, including thoughts. The class will
describe effective responses to anger, including coping thoughts and
relaxation techniques.
Although stress and anger affect everyone, anger can be problematic
if people use it to gain control and express It unprofessionally.

On May 30, 2012, Waszczuk arrived at the HR building with his two coworkers
and surprisingly was kicked out of class with the excuse from class host Hugh
Parker that Waszczuk must leave because Waszczuk was on suspension.
Waszczuk was suspended for alleged hostility incidents toward his two
supervisors in March and May 2011. Waszczuk did not understand why he was
kicked out of class the day before he was scheduled to go back to work.

William Buckans, for offenses to similar to Waszczuk’s alleged offenses, was


served with a Letter of Expectation right after the alleged offenses took place.
Waszczuk, however, was held hostage in his own residence for one year and was
suspended for 10 days without pay and then fired. Where is the justification for
such treatment and discrimination?

As Waszczuk learned later, William Buckans was so upset and angry about the
Letter of Expectation that on May 30, 2012, in the stress-management class, he

46
confronted and verbally battered class host Marjore Tragadon-Shock after
Waszczuk was kicked out. Tragaadon-Shock, for some reason, thought that
Waszczuk was attacking her and alerted UC Davis Police.

As Waszczuk learned later from William Buckans, another host of the stress-
management class, Hugh Parker, approached William Buckans and told him that
RPii administration had specially developed a plan for Waszczuk for May 31,
2012, upon Waszczuk’s return work and that Buckans would never have to worry
about Waszczuk again.

Waszczuk appealed Kenny Diede’s and William Buckans’ Letters of Expectation


on their behalf, and the letters were removed from their HR personnel files by a
Step II Appeal (PPSM 70). Hopefully, Waszczuk’s explanation will clarify for the
Court the issue of the May 3, 2012, e-mail including remarks about the
Columbine tragedy and guns.

IX. THE COURT OF APPEALS JUSTIFICATION FOR THE


AFFIRMATION OF THE TRIAL COURT DECISION
DENYING PETITIONER AND APPEALANT JAROSLAW
WASZCZUK’S PETITION FOR WRIT OF MANDAMUS

A. Waszczuk’s Disagreement with 3DCA’s Opinion


The affirmation by the Court of Appeal of the trial Court decision denying
Waszczuk Petition for Mandamus has no justification whatsoever, and
Waszczuk views the 3DCA’s opinion as an insult to and a further
destruction of Waszczuk and his family life and violation Waszczuks’
human rights by the State of California Government.
In the Waszczuks’ AOB and ARB, Waszczuk provided enough facts not to
be once again insulted by the 3DCA attorney who wrote the 12/12/2018
opinion and a previous similar opinion in the cross-referenced case
Waszczuk v. the Regents of the University of California.

47
In this Petition for Rehearing, Waszczuk further provided more details
about what happened to him in 2011 and 2012, and how the ALJ Law
Judge conducted the hearing on February 13, 2013.
Holding Waszczuk as a hostage in his own residence for over one year and
not letting him come back to work, harassing and attacking Waszczuk even
during his medical leave, and fabricating five witch-hunt reports by
assigned witch-hunters Danesha Nichols, Cinndi Oropeza and Brent Seifert
in 2011-2012 shall not be justification for trial Court of Law or Court of
Appeal to deny Waszczuk unemployment benefits, which were reinstated in
May 2014, then vanished.
The fabricated reports to provoke Waszczuk were full of lies and libelous
defacing statements about Waszczuk’s employment with RPii for 12 years;
attempted to provoke and assassinate Waszczuk; caused Waszczuk a loss in
2011-2012 of over $12,000 in income and his house; defaced, defamed and
libeled Waszczuk with Notices of Intent to Suspend; and humiliated and
portrayed Waszczuk as a criminal by distributing UCDPD posters around
campus. RPii not only violated Waszczuk’s signed February 2009
Settlement Agreement, but RPii grossly violated Waszczuk’s civil and
human rights and deprived Waszczuk of Liberty and Property Interest
together with the California government, including EDD, CUIAB and the
California Attorney General counsel representing CUIAB.
The Fourteenth Amendment prohibits U.S. states from “depriving any
person of life, liberty, or property, without due process of law”.
The doctrine of substantive due process prevents the government from
engaging in conduct that “‘shocks the conscience’ and is ‘arbitrary in the
constitutional sense’” County of Sacramento v. Lewis, 523 U.S. 833, 845-
46 (1998).

48
The attorney from 3DCA who wrote two opinions in two Waszczuk cases
is not better in this matter than the witch-hunters from UCDMC’s HR
Department.
The correspondence that Waszczuk exchanged with RPii officials from
September 2011 to December 2012 was nothing else but response to RPii
correspondence provocations, threats and intimidations and Waszczuk’s
own defense and defense of Waszczuk’s three coworkers against witch-
hunt reports. Waszczuk represented himself and his coworkers under the
UC Whistleblowing Policy and UC Davis Complaint Resolution Policy
PPSM 70.
On top of this, RPii UCDMC HR witch hunters in 2011-2012 sent
provocative, accusatory, defacing and threating correspondence to
Waszczuk’s private residence and to his private e-mail address. This even
occurred during Waszczuk’s medical leave from September 23, 2011 to
January 5, 2012. During this time, Waszczuk was placed on work stress-
related sick leave by his physician and his psychologist. On December 14,
2011, Waszczuk’s psychologist protested Rpii’s behavior. Then RPii Senior
Vice President Dan Dooley’s spouse, Diana Dooley, who held the position
of State Social Services Director (She was appointed in May 2018 to Chief
of Staff position for Government by Jerry Brown) gave order to Social
Services office to ride Dr. Franklin Bernhoft’s (Waszczuk’s
psychologist’s) residence in Lodi in an attempt to provoke and harm Dr.
Doctor Bernhoft using the Lodi Police. Waszczuk already informed the
Court about this in August 2018.
The Court is perfectly aware that Waszczuk’s representation of himself and
his coworkers and any correspondence written on his and his coworkers’
behalf on his own time, in his own residence, on his own computer and his
own e-mail in 2011-2012 are activities protected by state and federal laws

49
and statutes and University Policies and Procedures including but not
limited to:
University of California Whistleblower Protection Policy, which represents
the University’s implementation of policies of the California Whistleblower
Protection Act (Government Code Section 8547-8547.12); UC Davis
Complaint Resolution Policy PPSM 70; California Labor Code; amended
California Labor Code§ 1102.5; California Government Code Sections
12940-12951 Article 1: Unlawful Practices, Generally; Fair Employment
and Housing Act; California Code of Regulations 11074; California Code
of Regulations 11076; California Code of Regulations 11084; Fair
Employment and Housing Act 12926; and Health and Safety Code §
1278.5. Waszczuk’s responses to RPii provocation especially were
activities protected by the First Amendment of the U.S Constitution.
Waszczuk represented himself from December 16, 2014 against RPPii in an
anti-SLAPP motion filed by RPii under the California Code of Civil
Procedure § 425.16. Waszczuk knows what the First Amendment stands for
(3DCA Case C079524 Waszczuk v. The Regents of the University of
California). If RPii would have let Waszczuk work in 2011-2012 and had
treated him like any other employee, then Waszczuk would not need to
write. Proofreaders are expensive.

B. False Statements, and Statements in the Opinion Based on


Speculation and Guessing.

On Page No. 4, the Court applies false statements to justify the affirmation
of trial Court’s ruling denying Waszczuk’s Petition for the Writ of
Mandamus . “Waszczuk appealed the denial of benefits; a hearing before an
administrative law judge (ALJ) was scheduled for February 13, 2013. The
notice of the hearing stated all documents had to be submitted by February
7. The night before the hearing, Waszczuk submitted 170 pages of

50
documents. The ALJ noted she had authority to deny admittance of these
late-filed documents, but left them in the file for future proceedings.”
The fact is that Waszczuk timely submitted 170 pages of documents on
February 7, 2013, not the night before the hearing. The author of the
opinion purposely lied to justify the opinion.
On Page 10 of the opinion, the Court states:
https://www.scribd.com/document/397237344/FEBRUARY-7-2013-DOCS-FOR-ALJ-TAYS-CUIAB
• The ALJ found Waszczuk was untimely in submitting the documents
because they were not submitted until the night before the hearing,
which did not permit time for review by the ALJ or UCDHS.
On Page 10, the Court stated:
• Waszczuk’s claim that the ALJ was biased against him and belligerent
and hostile does not withstand scrutiny. The one comment by the ALJ
that Waszczuk sets forth as a purported example of his claims of
belligerence, hostility, and “despicable bias” shows none of these.
Another statement taken out of context from Waszczuk’s 2011-2012
correspondences exchanged with the RPii HR thugs and witch-hunters in
defense of himself and his three besieged coworkers was used in the
September 25, 2012 Notice to Dismiss. RPii did not provide to EDD or the
ALJ Judge Waszczuk’s full letters or the slide show “Welcome To
Romania” to compare the HVAC shop portrayed to ALJ Tays in color.
There is no other way for Waszczuk to provide his full 2012
correspondence with UCDMC HR and UC’s Office of the President then
pasting a link for correspondence
https://www.scribd.com/document/397236443/2012-May-June-Letters-
UCDMC
On Page 11 of the Opinion, the Court stated:
The 2014 matter raised by Waszczuk during the Oral Argument on
12/12/2018 was nothing else but Waszczuk‘s unemployment insurance
benefits, which were reinstated by EDD on May 14, 2014 after CUIAB

51
Chief Counsel Kim Steinhart investigated ALJ Marilyn Tays and two
CUIABs for their conspiracy with Waszczuk’s employer. It is interesting
that the Court does not want acknowledged the fact Waszczuk’s benefits
were reinstated and disappeared in May 2014. That is why the CUIAB
counsel from the Attorney General’s office, Ashante Norton, did not show
her face for the Oral Argument on 12/12/2018, and the Court failed to
notice that fact in the opinion beside that CUIAB counsel also did not file a
Respondent Brief and the Court. As though nothing had happened, affirmed
trial Court Judgment denying Waszczuk’s Writ of Mandamus. Nice Court
collaboration with the University of California Regents.
On Page 11, the Court stated:
• “Waszczuk contends he was denied progressive discipline. He fails to
mention, however, that he was suspended for the 2011 misconduct. He
was given notice and an opportunity to improve his behavior. He failed
to do so.”
This was not worth mentioning because Waszczuk did nothing wrong in
2011. He was hunted down because somebody got impatient to resume the
surplus power sale worth millions of dollars from the UC Davis Medical
Center. The surplus power sale ceased after Waszczuk signed the February
2009 Settlement-Agreement with the Regents. The two UC Davis HR
representatives heard over the phone were not the witnesses, and they had
nothing to do with Waszczuk beside processing claims or complaints and
assisting employers during complaints hearing conducted under UC Davis
Policy PPSM 70 (Gina Harwood).

Marilyn Tays: Okay, 110 questions. All right, Ms. Harwood, please
raise
your right hand while I administer an oath. Do you swear or affirm that the
testimony you're about to give will be the truth?

52
Gina Harwood- Yes.
Marilyn 'Tays: And what is your job title there?
Gina Harwood: I'm an employee and labor relations consultant at the
Health System.
Marilyn Tays: Any idea where Patrick Putney is today and why he's
not here to testify?
Gina Harwood: I don’t know because it was just discovered this
morning that the hearing was occurring. I don’t believe that Mr. Putney
was aware of the hearing
Marilyn Tays: How about the other supervisor? Same reason?
Gina Harwood: I think so. Yeah. I honestly don't
know if they even present in the workplace today.
Marilyn 'Tays: Okay. And do you know what the content of the e-mail
was that was sent to Mr. Putney and others after the
May 5, 2011, confrontation?

HR Consultant Gina Harwood lied under oath; her office was located 150
yards from Putney’s and Daniliuc’s offices, and she could simply check
whether they were working or not by calling their office or departmental
Administrative Supervisor. (CT 186) or walk into their office in HVAC
shop and ask .
Waszczuk did not know in 2013 or for many years after that his supervisors
Daniliuc and Putney were suspended for their misconduct, having stolen
and cheated their employer of money. That was the reason that Gina
Harwood would not mention Daniliuc’s or Putney’s names during the
phone appearance at the hearing. More likely, her boss absolutely
prohibited Gina from mentioning Daniliuc and Putney. Gina Harwood was
caught off guard by ALJ Tays with such requests and she had to lie. From
this point at the hearing ALJ Tays figured out that she had asked the wrong

53
question and turned against Waszczuk and Waszczuk’s witness, cutting
him off. ALJ Tays could have simply ordered the hearing to continue and
ordered Gina Harwood to bring Daniliuc and Putney to the hearing in
person rather than interviewing over the phone, a situation in which it is
impossible to verify who is testifying under oath. On February 6, Waszczuk
asked ALJ Tays to continue the hearing for a few days because he had
gotten sick and wanted to prepare himself better for the hearing.

On Page 11, the Court stated:


• Waszczuk fails to show how his extended administrative leave had any
effect on the finding that he was discharged for misconduct and thus
ineligible for unemployment benefits.
Waszczuk was kept hostage by RPii for over one years, and the Court
named this extended administrative leave. The 3DCA Justices must like
Polish jokes.
On Page 12, the Court stated:
• Further, absent a justification for failure to raise the point in the opening
brief, we will not consider arguments raised for the first time in a reply
brief or in oral argument (See Mansur v. Ford Motor Co. (2011) 197
Cal.App.4th 1365, 1387-1388 [reply brief]; Haight Ashbury Free
Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th
1539, 1554, fn. 9).
Waszczuk pointed out previously that CUIAB legal counsel Ashante
Norton did not file a brief at all and did not show up for the Oral Argument
on 12/12/2018. The above Court argument is no argument at all.

X. CONCLUSION
In conclusion, Mr. Waszczuk apologizes to the Court for rambling in his
Petition for Rehearing. However, the State of California Supreme Court

54
Chief Justice Hon. Tani Cantil-Sakauye, in a 2005 interview with The
Sacramento Bee, said:
• “My philosophy is to really listen closely to what people have to say
and try to balance it with everything they’ve told me and give them a
fair shot to tell me what they’re thinking...If I let them ramble a bit,
point them in a direction, I learn why that person is there much
better than in a question-and-answer format.”
For the above presented facts and arguments, Waszczuk respectfully
requests by this Petition that the Court modify the 12/27/2018 Unpublished
Opinion and reverse the trial Court decision that denied Waszczuk’s
Petition for Writ of Mandate.
Respectfully Submitted on January 10, 2019

I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct. Executed this 10th day of January ,
2019in Lodi, California.

___________________________________
Jaroslaw Waszczuk—Plaintiff and Appellant

55
CERTIFICATE OF COMPLIANCE

Pursuant to California Rules of Court rule 8.360(b)(1), I certify that

this Petition for Rehearing contains 13414 words, based on the word-
count feature of my word-processing program.

DATED: JANUARY 10, 2019

Respectfully submitted

______________________________

Jaroslaw Waszczuk

Plaintiff and Appellant In Pro Per

56
DECLARATION OF SERVICE BY ELECTRONIC AND BY US
MAIL

Re: Jaroslaw Waszczuk v. California Unemployment Insurance Appeal


Board et, al.

Case No.: C079254

I, IRENA WASZCZUK, the undersigned, declare that I am over 18 years


of age and not a party to the within cause; my address is 2216 Katzakian
Way in Lodi, California. On 1/10/2019, I served a true copy of the attached
Petition for Rehearing on each of the following by placing same in an
envelope or envelopes addressed respectively as follows:

Ashante L. Norton, Esq. Hon. Shelleyanne Chang


CUIAB Legal Counsel The Sacramento County Superior
Court
1300 I Street, Suite 125 720 Ninth Street,
Sacramento, CA 944255 Sacramento, CA 95814-1380
(US Mail)
California Supreme Court (ELECTRONIC MAIL-TRUEFILING)
350 McAllister St.
San Francisco, CA 94102

David P.E. Burkett Esq. (TRUE FILING )


PORTER/SCOTT LAW FIRM
350 University Avenue, Suite 200
Sacramento, CA 95825
Each envelope was sealed and deposited in the United States Mail in San
Joaquin County, California, the county in which I am residing, with the
postage thereon fully prepaid.
I declare under penalty of perjury of the laws of the State of California that
the foregoing is true and correct. Executed on January 10,2019 , at Lodi,
California.

_________________________
IRENA WASZCZUK

57
NOT TO BE PUBLISHED
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


THIRD APPELLATE DISTRICT
(Sacramento)
----

JAROSLAW WASZCZUK, C079254

Plaintiff and Appellant, (Super. Ct. No. 34-2013-


80001699-CU-WM-GDS)
v.

CALIFORNIA UNEMPLOYMENT INSURANCE


APPEALS BOARD,

Defendant and Respondent;

THE REGENTS OF THE UNIVERSITY OF


CALIFORNIA,

Real Party in Interest and Respondent.

After Jaroslaw Waszczuk was fired from his job at the University of California
Davis Health Systems (UCDHS), he sought unemployment benefits which were denied
because he had been discharged for misconduct. Representing himself, as he did in the

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administrative and trial court proceedings, Waszczuk appeals from denial of his petition
for a writ of mandate to overturn the decision of the California Unemployment Insurance
Appeals Board (the Board) that found him disqualified for unemployment benefits. He
contends there was no showing of misconduct and he was denied a fair hearing. He also
raises issues concerning the length of his suspension before discharge, the lack of
performance evaluations for the last two years, and the absence of progressive discipline.
We find no merit in any of the contentions and affirm.
BACKGROUND
Waszczuk began his employment with UCDHS in 1999. At discharge, his
position was associate development engineer and he worked in the heating, ventilation,
and air conditioning (HVAC) shop.
In 2011 Danésha Nichols, a UCDHS investigations coordinator, began an
investigation of allegations against Waszczuk of disruptive behavior that violated
UCDHS’s policies against violence and hate incidents in the workplace and
discrimination. The substantiated allegations included the use of profanities and
derogatory comments about other employees, including supervisors Dorin Daniliuc and
Patrick Putney. On April 13, 2012, the plant manager sent Waszczuk a notice of intent to
suspend due to his continued inappropriate behavior in the workplace. The notice told
Waszczuk he was immediately expected to follow all UC policies and procedures, show
respect and remain professional in the workplace, follow direct orders, and attend classes
regarding communication and respectful treatment. In May, Waszczuk was suspended
for 10 working days.
On April 27, 2012, Waszczuk sent an e-mail to Nichols that included a video
entitled “Welcome to Romania.” The e-mail accused Nichols of protecting “PO&M
[Plant Operation and Maintenance] Emperor, HVAC Chicken Farm Manager. Daddy
and his child porn lover boy and Romanian Supervisor who thinks that Saint Nick is still
his Patron i[n] USA and could steal without being punished.” The e-mail referred to the

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video as made by Romanians and as “almost like the HVAC shop.” “Maybe it make you
understand why the HVAC Shop looks like a junk yard with filthy restrooms, ‘dining-
lunch area’ and Romanian Locker Room” and claimed there were goats and chickens in
Putney and others’ car trunks. The video showed defecation and people engaged in
sexual activity. This e-mail and included video triggered a second investigation of
Waszczuk.
In an interview as part of the second investigation, Waszczuk submitted a written
document that stated the purpose of the video was to show Putney and Daniliuc, who are
Romanian, that the HVAC shop culture was like that in the video.
On May 3, 2012, Waszczuk sent an e-mail to Mike Garcia, a labor relations
manager, and several other staff members. The e-mail complained about harassment and
abuse in the central plant and people being bullied. It continued, “I am no psychologist,
but I read the Williams letter and some story about Columbine where two kids were
picked on and tormented. We need no Columbine school tragedy in the central plant. . . .
I am using my pen to defend myself and don’t own gun [sic] and I don’t like guns but not
everybody [is] defending themselves, like me, with pen and written word.” The e-mail
concluded that Waszczuk was thinking of pressing criminal charges against several
UCDHS employees, including Nichols.
The second investigation substantiated allegations that Waszczuk’s disruptive and
intimidating e-mails regarding Daniliuc’s national origin violated policies regarding
workplace violence and discrimination.
On December 5, 2012, UCDHS terminated Waszczuk for violating policies
regarding work place violence and hate, and discrimination.
Waszczuk applied for unemployment insurance benefits. The Employment
Development Department denied benefits, finding Waszczuk was ineligible because he
had been discharged for breaking a reasonable employer rule.

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Waszczuk appealed the denial of benefits; a hearing before an administrative law
judge (ALJ) was scheduled for February 13, 2013. The notice of the hearing stated all
documents had to be submitted by February 7. The night before the hearing, Waszczuk
submitted 170 pages of documents. The ALJ noted she had authority to deny admittance
of these late filed documents, but left them in the file for future proceedings.
The issue at the hearing was “whether Mr. Waszczuk left the most recent
employment voluntarily without good cause or whether he was discharged for
misconduct connected with the most recent work.” UCDHS appeared by telephone. At
the hearing, there was testimony about Waszczuk’s disruptive conduct in 2011, including
his use of profanity and intimidating behavior.
The focus of the hearing was on the two e-mails about Romania and Columbine;
the contents of these e-mails were read into the record. Waszczuk admitted he sent both
e-mails. The video was not presented as evidence, but Waszczuk admitted the video
showed defecation and sex and testified he sent it because he believed the HVAC shop
looked like Romania. He testified he sent the e-mail about Columbine to communicate to
Garcia that he needed “to take care of conflicts in the central plant.” He claimed it was a
hostile work environment and “somebody would finally snap there and would kill
people.”
The ALJ found Waszczuk had been discharged for misconduct. After initial
disruptive and harassing behavior in 2011 and a warning, Waszczuk sent further e-mails
that were disruptive and threatening. The ALJ found this behavior was not a good faith
error in judgment or discretion, but a disregard of a standard of behavior the employer
had a right to expect.
Waszczuk appealed to the Board, which adopted and affirmed the decision of the
ALJ.

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Waszczuk then petitioned for a writ of mandate, contending he was denied a fair
hearing and it was error to find misconduct. The trial court found sending the two e-
mails did constitute misconduct and denied the petition.
Waszczuk appeals from the judgment. 1
DISCUSSION
I
The Law
“The fundamental purpose of California’s Unemployment Insurance Code is to
reduce the hardship of unemployment by ‘providing benefits for persons unemployed
through no fault of their own.’ [Citations.] In light of this purpose, ‘ “fault is the basic
element to be considered . . . ” ’ when ‘interpreting and applying’ the provisions of the
code. [Citation.]” (Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2014) 59
Cal.4th 551, 558 (Paratransit).)
“An individual is disqualified for unemployment compensation benefits if the
director finds that he or she left his or her most recent work voluntarily without good
cause or that he or she has been discharged for misconduct connected with his or her
most recent work.” (Unemp. Ins. Code, § 1256.) 2 “The term ‘misconduct,’ as used in
the code, is limited to ‘ “conduct evincing such wilful or wanton disregard of an
employer’s interests as is found in deliberate violations or disregard of standards of
behavior which the employer has the right to expect of his employee, or in carelessness or
negligence of such degree or recurrence as to manifest equal culpability, wrongful intent
or evil design, or to show an intentional and substantial disregard of the employer’s
interests or of the employee’s duties and obligations to his employer. On the other hand

1 The matter was assigned to the panel as presently constituted in September 2018.
2 Further undesignated statutory references are to the Unemployment Insurance Code.

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62
mere inefficiency, unsatisfactory conduct, failure in good performance as the result of
inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or
good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the
meaning of the statute.” ’ [Citations.]” (Amador v. Unemployment Ins. Appeals Bd.
(1984) 35 Cal.3d 671, 678 (Amador).)
The elements of misconduct are: “(1) The claimant owes a material duty to the
employer under the contract of employment. [¶] (2) There is a substantial breach of that
duty. [¶] (3) The breach is a willful or wanton disregard of that duty. [¶] (4) The
breach disregards the employer’s interests and injures or tends to injure the employer’s
interests.” (Cal. Code Regs., tit. 22, § 1256-30, subd. (b).) “An employee owes an
implicit duty to support and serve the employer’s interests and not to willfully or
wantonly engage in acts or statements which evince an attitude of disregard of the
employer’s interests. Except in aggravated circumstances, ordinarily the first instance of
an employee’s isolated willful or wanton act or statement showing disregard of the
employer’s interests would not be sufficiently substantial to constitute misconduct. If the
employee continues the acts or statements after warning or reprimand, his or her conduct
viewed as a whole may constitute a willful and substantial breach and justify a discharge
for misconduct, particularly if the repeated acts or statements occur within a relatively
short span of time.” (Id., § 1256-32, subd. (b).)
“Section 1256 creates a rebuttable presumption that, absent evidence from the
employer, the employee was not discharged for misconduct.” (Paratransit, supra, 59
Cal.4th at p. 561.) “The employer bears the overall burden of proving misconduct.
[Citations.] However, once it is established that the employee has violated a reasonable
order, the burden shifts to the employee to show good cause. [Citation.]” (Amador,
supra, 35 Cal.3d at p. 681, fn. 7.)

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II
Substantial Evidence of Misconduct
A. Standard of Review
“In reviewing a decision of the Board on a petition for writ of administrative
mandamus, ‘ “the superior court exercises its independent judgment on the evidentiary
record of the administrative proceedings and inquires whether the findings of the
administrative agency are supported by the weight of the evidence.” ’ [Citation.] On
review of that decision, an appellate court determines whether the independent ‘findings
and judgment of the [superior] court are supported by substantial, credible and competent
evidence’ in the administrative record. [Citations.] ‘[A]ll conflicts must be resolved in
favor of the respondent and all legitimate and reasonable inferences made to uphold the
superior court’s findings; moreover, when two or more inferences can be reasonably
deduced from the facts, the appellate court may not substitute its deductions for those of
the superior court.’ [Citation.]” (Paratransit, supra, 59 Cal.4th at p. 562.)
Waszczuk’s brief is rambling and his arguments are not set forth clearly with each
point under a separate heading as required by rule 8.204(a)(1)(B) of the California Rules
of Court. We have tried to discern and individually address his specific arguments.
While Waszczuk is representing himself on appeal, his status as a party appearing in
propria persona does not provide a basis for preferential consideration. A party
proceeding in propria persona “is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and attorneys.” (Barton v. New
United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
B. Sufficiency of the Evidence
Waszczuk contends UCDHS “did not provide any evidence of Waszczuk’s
misconduct because it did not have any evidence. It was physically impossible to provide
any documents during the phone hearing.” Waszczuk is mistaken.

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64
There was evidence of misconduct produced at the hearing. First, at the beginning
of the hearing, the ALJ marked as exhibits various documents in the file relating to
Waszczuk’s employment and discharge. Second, there was testimony about Waszczuk’s
disruptive and intimidating behavior, beginning in 2011 and continuing after his
suspension in 2012. Testimony is evidence. Third, the contents of the Romania and
Columbine e-mails were read into the record without objection. (Tennant v. Civil Service
Com. (1946) 77 Cal.App.2d 489, 498-499 [necessity of objection in administrative
proceeding].) Further, Waszczuk admitted sending the e-mails and did not dispute their
content. He also admitted the vulgar content of the video accompanying the April 2012
e-mail. Finally, Waszczuk admitted he knew of UCDHS’s policies about workplace
violence, discrimination, and harassment. This was all evidence.
This evidence showed a continued pattern of misconduct. The misconduct began
with shouting profanity and other intimidating behavior. It continued after Waszczuk
was suspended and instructed to follow UCDHS’s policies, show respect, and remain
professional in the workplace. Despite the notice of suspension and warning, Waszczuk
sent an e-mail to Nichols that was extremely disrespectful in tone and accompanied by a
vulgar video that mocked Daniliuc’s Romanian heritage. This was followed by the e-
mail referring to the Columbine shooting and guns. At the hearing, Waszczuk presented
the testimony of a coworker who did not find the Columbine e-mail offensive, but viewed
it as simply a warning. Both the ALJ and the trial court found the e-mail threatening.
It is not our role on appeal to conclusively determine the nature and intent of the e-
mail. Our role is to resolve all conflicts in favor of the judgment and not to substitute our
deductions for those of the trial court. (Paratransit, supra, 59 Cal.4th at p. 562.) The
trial court could reasonably infer the Columbine e-mail was threatening.
Waszczuk provided no evidence of good cause for his behavior and violation of
the UCDHS policies and direct instructions. If his goal was to call attention to problems
in the workplace, he could have done so in a respectful manner, without vulgarity,

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65
disrespect to his fellow employees, or references to guns and violence. This is not a case
like Amador, supra, 35 Cal.3d 671, where an employee was found not to have committed
misconduct despite refusing to comply with a work assignment. In Amador, a
histotechnican, one who prepares tissue samples for pathologists, refused to perform a
procedure known as grosscutting on tissue removed from live patients. (Id. at pp. 675-
676.) Our Supreme Court found her refusal was not misconduct because it was based on
her good faith belief that she was unqualified to perform the important task, a belief
supported by her previous work experience at Stanford University and Oxford University,
where histotechnicans were not allowed to perform grosscutting, and by the opinions of
three pathologists. (Id. at pp. 680-681.)
Waszczuk appears to argue that his discharge was not for misconduct because he
had received good performance reviews for 11 years. That Waszczuk may have been a
good employee in the past does not excuse or eradicate his continued misconduct in 2011
and 2012.
III
Fair Hearing
Waszczuk contends he was denied a fair hearing. He argues the ALJ improperly
denied him an extension to submit 170 pages of documents, an extension he required due
to illness. He further contends the ALJ was “belligerent and hostile” towards him and
had a “despicable bias” against him.
On a petition for a writ of administrative mandamus, the trial court shall inquire as
to whether there was a fair trial. (Code Civ. Proc., § 1094.5, subd. (b).) “We review the
fairness of the administrative proceeding de novo.” (Doe v. Regents of University of
California (2016) 5 Cal.App.5th 1055, 1073.) A “fair trial” means a fair administrative
hearing. (Ibid.) At the hearing, each party has the right to call and examine parties and
witnesses, introduce exhibits, question opposing parties and witnesses, and rebut
evidence against it. (Cal. Code Regs., tit. 22, § 5062, subd. (d).)

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66
The ALJ found Waszczuk was untimely in submitting the documents because they
were not submitted until the night before the hearing, which did not permit time for
review by the ALJ or UCDHS. Waszczuk disputes the timing and cites to evidence in the
record showing the documents were submitted several days before the hearing and were
sent to UCDHS. He further contends he sought an extension due to illness, a good cause,
which the ALJ improperly denied.
Waszczuk describes the documents only as including his 1999-2010 performance
evaluations and contends they were critical to rebut UCDHS’s allegations of misconduct.
He appears to be making the argument we have already rejected, that his prior good
performance means his discharge could not have been for misconduct. In its review, the
Board found the excluded documents were irrelevant or cumulative. Waszczuk has not
shown otherwise. “An administrative law judge has discretion to exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
necessitate undue consumption of time, or to prevent injustice, undue burden, or
prejudice.” (Cal. Code Regs., § 5062, subd. (f).) There was no error in excluding the
documents even if the submission was timely. Waszczuk has failed to show he was
denied a fair trial.
Waszczuk’s claim that the ALJ was biased against him and belligerent and hostile
does not withstand scrutiny. The one comment by the ALJ that Waszczuk sets forth as a
purported example of his claims of belligerence, hostility, and “despicable bias” shows
none of these. We have carefully reviewed the record of the administrative proceeding
and find these allegations unfounded.
IV
Other Contentions
Throughout his brief, Waszczuk objects that he was placed on administrative leave
for an extended period of time. The record indicates Waszczuk’s last day of work was
August 2, 2011. Between then and the termination of his employment on December 5,

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67
2012), Waszczuk was on various terms of paid administrative leave pending
investigations into his behavior, suspension, and medical leave. The trial court found the
issue of the time elapsed between the alleged events of misconduct and his eventual
termination was not before the ALJ at the hearing. On appeal, Waszczuk fails to show
how his extended administrative leave had any effect on the finding that he was
discharged for misconduct and thus ineligible for unemployment benefits.
Waszczuk contends he was denied progressive discipline. He fails to mention,
however, that he was suspended for the 2011 misconduct. He was given notice and an
opportunity to improve his behavior. He failed to do so.
Waszczuk raises the point that he was not given performance evaluations for 2011
and 2012. He cites to Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958. The
issue in Jensen was whether a negative performance evaluation would support an action
for libel. The case has no application here; it does not address whether a performance
evaluation is required before a finding of discharge for misconduct. It is unclear what
point Waszczuk is trying to make about the missing evaluations. He was on leave for
most of that time.
In his reply brief and at oral argument, Waszczuk referred to numerous matters
outside the record, including a separate case, an employment matter involving another
employee, a 2009 settlement agreement, and matters he alleged occurred in 2014.
“Appellate review is generally limited to matters contained in the record. Factual matters
that are not part of the appellate record will not be considered on appeal and such matters
should not be referred to in the briefs.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th
89, 102.) Further, absent a justification for failure to raise the point in the opening brief,
we will not consider arguments raised for the first time in a reply brief or in oral
argument. (See Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388
[reply brief]; Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184
Cal.App.4th 1539, 1554, fn. 9 [oral argument].)

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DISPOSITION
The judgment is affirmed. The Regents of the University of California shall
recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

Duarte, J.

We concur:

Blease, Acting P. J.

Butz, J.

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69
IN THE
Court of Appeal of the State of California
IN AND FOR THE
THIRD APPELLATE DISTRICT

MAILING LIST

Re: Waszczuk v. California Unemployment Insurance Appeals Board


C079254
Sacramento County
No. 34201380001699CUWMGDS

Copies of this document have been sent by mail to the parties checked below unless they were
noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is
not checked below, service was not required.

Jaroslaw Waszczuk
2216 Katzakian Way
Lodi, CA 95242

Ashante L. Norton
Office of the Attorney General
P.O. Box 944255
1300 I Street, Suite 125
Sacramento, CA 94244

David P.E. Burkett


Porter Scott
350 University Avenue, Suite 200
Sacramento, CA 95825

 Honorable Shelleyanne Wai Ling Chang


Judge of the Sacramento County Superior Court
720 Ninth Street
Sacramento, CA 95814

70