Opinion
F084712
04-09-2024
JOHN PINHEIRO, Plaintiff and Appellant, v. CIVIL SERVICE COMMISSION FOR THE COUNTY OF FRESNO et al., Defendants and Respondents.
Motschiedler, Michaelides, Wishon, Brewer & Ryan and Russell K. Ryan for Plaintiff and Appellant. Daniel C. Cederborg, County Counsel, and Cavan M. Cox II, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 20CECG02457 Gabriel L. Brickey, Judge.
Motschiedler, Michaelides, Wishon, Brewer & Ryan and Russell K. Ryan for Plaintiff and Appellant.
Daniel C. Cederborg, County Counsel, and Cavan M. Cox II, Deputy County Counsel, for Defendants and Respondents.
OPINION
DE SANTOS, J.
John Pinheiro appeals from a judgment denying his petition for writ of administrative mandamus by which he sought to overturn the decision of the Civil Service Commission for the County of Fresno (Commission) upholding his dismissal as the County's labor relations manager. Pinheiro contends his termination was improper because his due process rights were violated, the County did not have good cause to terminate his employment, and his termination was retaliatory. Pinheiro asks us to direct the trial court to issue a writ setting aside the Commission's decision, reversing his termination, and reinstating his employment. Finding no merit to Pinheiro's contentions, we affirm.
This is not the first appeal concerning Pinheiro's dismissal. In Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458 (Pinheiro), we concluded Pinheiro was denied a fair hearing before the Commission because the Commission relied on extra-record evidence when it upheld his dismissal. Accordingly, we reversed and remanded for a new hearing before the Commission. (Id. at pp. 1460‒ 1461.)
FACTUAL AND PROCEDURAL BACKGROUND
We are bound by the trial court's factual findings if they are supported by substantial evidence, and we indulge every reasonable inference and presumption in favor of those findings. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 40 (Deegan).)
The County of Fresno (County) hired Pinheiro in November 2004, and he acted as its labor relations manager since 2005. His position was reclassified to that of personnel services manager in June 2012, though his duties remained the same. As personnel services manager, Pinheiro was responsible for managing the labor relations division and acting as the County's chief spokesperson in labor negotiations.
I. Bandy's Directives to Pinheiro
In 2009 or the beginning of 2010, Beth Bandy, who at the time was the deputy director of personnel services, talked to Pinheiro about his relationship with another County employee, Vanessa Salazar, and rumors that they were involved in a romantic relationship. Bandy advised Pinheiro to be careful, as Salazar was his subordinate. Pinheiro told Bandy they were friends and co-workers.
Beginning in October 2010, Bandy gave Pinheiro multiple directives to avoid contact with Salazar during work hours as there was no work-related reason for them to have contact. Bandy gave the first directive in October 2010, after she received reports from two department employees that they observed Pinheiro and Salazar arguing outside the County building at the start of the workday. Bandy did not put the directive in writing because that was not her habit and she expected someone like Pinheiro, who was a "high level manager," to self-correct and understand the directive.
Bandy gave the directive a second time in January 2011, after someone complained to Bandy that Pinheiro stuck his arm into the 16th floor ladies' bathroom and turned off the light and Salazar was seen running between the 16th floor stairwell and conference room. Bandy confirmed Pinheiro was away from his office multiple times during the day. Bandy told Pinheiro there was no evidence he was with Salazar, but she still told him not to contact her during the workday. She also told Pinheiro he needed to stay in his office.
Bandy gave the directive a third time in May 2012, after she personally observed Pinheiro and Salazar engage in suspicious behavior that caused Bandy to believe they had been together at work. Bandy told Pinheiro she did not care about his relationships outside the office, but he could not have contact with Salazar during the workday.
On cross-examination, Bandy was asked if her testimony was that she directed Pinheiro not to have contact with Salazar at least three times before February 2012. Bandy responded that she talked to him three times before February 2012, but there were two directives.
II. The Preliminary Investigation
On May 30, 2012, Salazar's supervisor, Paul Nerland, a personnel services manager who oversaw the employee benefits division, received information regarding Pinheiro and Salazar that caused him to be concerned about possible sexual harassment. Nerland learned from a County employee, Hollis Magill, that another County employee, Amy Ryals, told Magill that Pinheiro and Salazar were involved in a romantic relationship and Pinheiro may have physically abused Salazar. Nerland immediately reported the potential abuse to Bandy, and he, Bandy, and Magill met that day. Following that meeting, Bandy and Nerland interviewed Ryals, who said that Salazar told her that she and Pinheiro were in a relationship. Ryals also recalled that Salazar came to work with injuries at least twice and Salazar told her Pinheiro inflicted the injuries.
Nerland conducted a preliminary investigation, which involved interviewing staff that Ryals had brought up in her interview or who may have witnessed the events. On June 15, 2012, he issued a written summary of the preliminary information he received and recommended the County appoint an outside investigator.
III. St. Marie's Investigation
Bandy thereafter spoke to the County's chief administrative officer (CAO), John Navarrette, about appointing an outside investigator and they decided to select Richard St. Marie. St. Marie conducted multiple interviews, including interviews of Pinheiro and Salazar, to determine whether domestic violence or sexual harassment had occurred.
A. Pinheiro's Dishonesty
St. Marie interviewed Pinheiro twice on the same day. Pinheiro denied he was in a romantic relationship with Salazar or even that they were friends. Pinheiro also denied having daily interactions with Salazar and said it could be weeks or months between interactions. Phone records showed Pinheiro's work phone line was used to call Salazar's direct line 15 times between May 4 and September 28, 2011. Pinheiro claimed he did not know Salazar's desk phone extension. He could not explain why there would be phone calls between their extensions, other than some work-related conversations.
According to Larry Gomez, who supervised Salazar beginning in the spring of 2011, Salazar told him that she and Pinheiro carpooled to work nearly every workday, and "they would have lunch together in their car." Pinheiro, however, told St. Marie he had taken Salazar to work "once or twice" in the past several years.
At the January 2020 Commission hearing, Pinheiro admitted to carpooling with Salazar more than once or twice.
Pinheiro was known to carry two cell phones and at St. Marie's request, Bandy told Pinheiro to bring both phones to his interview. When St. Marie asked how many cell phones Pinheiro carried, he said "currently one." When asked why other people said he carried two, Pinheiro asked if "there [was] a law against carrying two cell phones." St. Marie told Pinheiro he had information that Salazar provided him with a phone so they could communicate with each other. Pinheiro stated he did not know anything about that and while he carried two cell phones in the past, both phones belonged to him. When St. Marie asked for the numbers of those phones, Pinheiro claimed he did not know them and explained that one of the phones was for a small business he ran with his wife. In the second interview, Pinheiro admitted he knew the number to his primary phone, which he provided to St. Marie, but he continued to claim he did not know the number for his business phone. When St. Marie pointed out that Pinheiro stated earlier that he did not know the number of his primary phone, Pinheiro responded that he did not "understand that to be the question" and he thought St. Marie was asking about the business phone.
Magill and Gomez both testified at the first Commission hearing that Salazar provided Pinheiro with a cell phone which they used to communicate with each other.
St. Marie asked about an October 2010 incident where Pinheiro and Salazar were seen arguing outside the County building. Pinheiro denied there was a confrontation. He claimed the encounter only lasted 20 to 30 seconds and they exchanged pleasantries and talked about Salazar meeting her father at the mechanic's shop.
County employee, Debbie Zavala, saw Pinheiro and Salazar carrying on a conversation in October 2010 in which they appeared to be arguing. Zavala could not hear what they were saying, but they appeared to be upset and Zavala believed Salazar threw something at Pinheiro that looked like a set of keys. Pinheiro was "red in the face" and looked angry; eventually he moved away from Salazar. County employee, Charlotte Tilkes, also observed the incident, which she reported to Nerland. This incident led to Bandy's first directive to Pinheiro to stay away from Salazar at work.
During his January 2020 hearing testimony, Pinheiro altered his account of this incident. He stated he ran into Salazar when he was walking to get coffee at Starbucks, and she asked him about the mechanic where she just left her car. Pinheiro claimed he invited Salazar to come with him to get a quick cup of coffee, which took about 10 minutes, and they picked up the coffee and returned to work.
B. Sharing Confidential Information
The investigation revealed Salazar knew several pieces of confidential information that only senior management should have known. During a personnel services managers meeting in the fall of 2011, there was a discussion about raising the annual leave cap for certain employees from 200 to 240 hours. Management meetings were confidential, and managers would ask at the end of meetings if they could pass information along to staff. Salazar told Magill that Pinheiro would tell her what happened at the management meetings. For example, Salazar told Magill about the potential increase in the annual leave cap. Salazar also told Gomez information Pinheiro conveyed to her from the management meetings, such as updates about ongoing negotiations with certain unions concerning salary cuts, including specific percentages.
In January 2012, Nerland received a call from a headhunter asking him to interview for a job. Nerland only told Bandy and his own family about the interview. Nerland listed the interview on his work calendar as an "appointment." While the calendar was accessible to County employees, the designation was not unusual.
In March 2012, Bandy was at a labor hearing in Sacramento with Pinheiro and the County's attorney, Che Johnson, when they discussed needing Nerland to testify. While selecting dates for his testimony, Bandy suggested that it be set as soon as possible. When she was asked why, she stated "for this room only, [Nerland] may not be around in the future." Although Pinheiro, Bandy, and Johnson were the only ones involved in that discussion, Salazar told Gomez that Nerland was interviewing for a position outside the County and Gomez might be eligible for promotion to Nerland's position.
C. St. Marie's Report
St. Marie issued an internal investigation report on August 1, 2012. St. Marie concluded the allegations of workplace or domestic violence were undetermined and the charge of sexual harassment was not sustained. He sustained the following allegations against Pinheiro: (1) insubordination based on his violation of Bandy's directive not to have contact with Salazar; (2) dishonesty based on Pinheiro being very uncooperative, evasive, argumentative, and refusing to answer questions truthfully during St. Marie's interview; (3) misuse of work time based on Pinheiro making an extreme number of personal telephone calls during the workday; and (4) release of confidential information based on Salazar conveying such information to her colleagues.
IV. The Skelly and Commission Hearings
Pinheiro was served with a proposed order of disciplinary action, namely, termination, and a notice of a Skelly hearing set for September 12, 2012. At the request of Pinheiro's attorney, the hearing was continued twice and ultimately held on October 1. Pinheiro's attorney objected to Navarrette sitting as the hearing officer, so the County appointed chief probation officer Linda Penner to act as the hearing officer. After the Skelly hearing, Penner determined the intended discipline of termination was appropriate. (Pinheiro, supra, 245 Cal.App.4th at p. 1462.)
The California Supreme Court held in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly), that to satisfy due process, an agency considering disciplinary action against a public employee must accord the employee certain "preremoval safeguards," including "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Id. at p. 215.) "The Supreme Court's directive gave rise to an administrative procedure known as a Skelly hearing, in which an employee has the opportunity to respond to the charges upon which the proposed discipline is based." (Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 280 (Flippin).)
On October 1, 2012, Bandy signed the "Order for Disciplinary Action" (Order). The Order notified Pinheiro he was dismissed from his County position the following day based on violations of County personnel rules governing: (1) inefficiency; (2) insubordination; (3) neglect of duty; (4) dishonesty; (5) discourteous treatment of the public and other employees; (6) willful violation of any County code or lawful departmental or County regulation or order; and (7) conduct which bears some rational relationship to the employment and is of a character that can reasonably result in the impairment or disruption of County service.
Pinheiro appealed his dismissal to the Commission. Following an administrative hearing that spanned five days in February 2013, which included the testimony of 19 witnesses and the admission of numerous documentary exhibits, the parties submitted closing briefs. Thereafter, the Commission issued a notice of decision in which it denied Pinheiro's appeal and unanimously upheld his dismissal. (Pinheiro, supra, 245 Cal.App.4th at p. 1462.)
"The Commission subsequently issued a 129-page formal findings of fact and conclusions of law denying Pinheiro's appeal, in which it found the County had just cause to terminate Pinheiro based on five 'separate wrongdoings,' each of which constituted 'separate and independent' just cause for his termination: (1) Pinheiro repeatedly violated numerous orders that he was to have no contact with Salazar during work time on work premises; (2) Pinheiro violated his confidentiality oath of office, the County's confidentiality rules, and direct orders, by repeatedly disclosing confidential matters to Salazar; (3) Pinheiro violated the County's antimoonlighting policy by secretly working for Club One as a professional poker player; (4) Pinheiro repeatedly committed petty thefts of bags of potato chips and sodas from sandwich shops near his office; and (5) Pinheiro repeatedly lied to St. Marie and his superiors, and lied at the Commission hearing." (Pinheiro, supra, 245 Cal.App.4th at pp. 1462‒1463.)
Pinheiro filed a petition for writ of administrative mandamus. The parties submitted briefs, and Pinheiro asked the superior court to take judicial notice of additional documents. The superior court issued a 17-page statement of decision and order denying the petition. (Pinheiro, supra, 245 Cal.App.4th at p. 1463.) On Pinheiro's resulting appeal, we found Pinheiro was denied a fair hearing because the Commission prejudicially relied on evidence outside the hearing in reaching its decision to sustain Pinheiro's dismissal. (Id. at p. 1471.) Accordingly, we reversed the judgment and remanded the matter for the superior court to issue a writ of mandamus requiring the Commission to vacate its decision and afford Pinheiro a fair independent review. (Id. at p. 1472.)
A second hearing was held before the Commission in December 2016, and the Commission again upheld Pinheiro's dismissal. Pinheiro filed a petition for writ of mandate. In January 2018, the superior court issued an order granting the petition and a statement of decision in which it determined the Commission committed error by improperly considering reports of the Fresno Police Department regarding allegations of petty theft that did not result in citation, arrest, or conviction. Accordingly, the superior court issued a writ of mandate commanding the Commission to vacate its order sustaining Pinheiro's dismissal and to afford Pinheiro a new hearing where the evidence of petty theft was no longer considered.
The Commission held a third hearing over two days in January 2020. Pinheiro and Bandy testified in person, but the parties stipulated that transcripts of the testimony of other witnesses given at the first Commission hearing in 2013 could be admitted in lieu of live testimony, along with certain documentary exhibits. After the parties submitted closing briefs, the Commission issued a notice of decision in which it denied Pinheiro's appeal and upheld his dismissal.
At Pinheiro's request, the Commission issued findings of fact and conclusions of law on May 19, 2020. The Commission found the matter concerned Pinheiro's "on and off duty conduct." The Commission cited County Personnel Rule 10076, which states an employee may be disciplined for "[a]ny conduct which bears some rational relationship to the employment and is of a character that can reasonably result in the impairment or disruption of County service." The Commission noted it was not determining or considering the existence of an extramarital affair, and the private relationships and off-duty conduct of County employees were of concern only when they impaired or disrupted the employment relationship or fitness for office.
After making credibility determinations, the Commission found good cause to terminate Pinheiro for "the following separate and independent grounds," each of which "separately justifies termination": (1) failing to follow directives to avoid Salazar during work hours; (2) disclosing confidential information; and (3) making untruthful statements during the investigation. The untrue statements made to the investigator included: (1) that the October 2010 conversation with Salazar lasted only 20 to 30 seconds; (2) he had not called Salazar's work phone; (3) he only gave Salazar one or two rides; (4) he could not remember his phone number and responses about the number of phones he carried and the reasons for his second phone, the frequency of its use, and its purpose; and (5) he had not been directed to stay away from Salazar. The Commission also found Pinheiro's claim that he was terminated because he objected to the County favoring one union over another in a union modification matter lacked merit.
Pinheiro filed the instant petition for writ of administrative mandamus challenging the Commission's decision and seeking back pay, interest and attorney fees and damages from the County due to his wrongful termination. The parties submitted briefs in support of and opposing the petition. Following oral argument, the trial court took the matter under submission and subsequently issued a tentative and proposed order denying the petition for writ of mandate. After the County filed an objection to the tentative and proposed order, the trial court issued a 14-page order denying the petition. Pinheiro appeals from the resulting judgment.
DISCUSSION
Pinheiro contends the trial court erred in denying his petition because the Order did not support his termination for good cause. He argues Bandy: (1) improperly included alleged misconduct that was more than three years old in the Order; (2) improperly found he made untruthful statements during St. Marie's investigation regarding extraneous matters that could not be the basis for discipline; (3) based his termination primarily on unsupported gossip, rumors, and innuendo of a purported affair between he and Salazar; and (4) did not give him the opportunity to respond to the majority of the allegations in the Order during St. Marie's investigation. He further contends his termination was retaliatory.
I. Standards of Review
"The applicable standards of review at the superior court and appellate court levels differ depending upon which issues are under review." (Deegan, supra, 72 Cal.App.4th at p. 45.) "With respect to culpability, i.e., whether [Pinheiro] committed the misconduct alleged, the superior court has extensive powers of review." (Ibid.) "Where, as here, a trial court reviews a final administrative decision that substantially impacts a fundamental vested right, the trial court both examines the administrative record for errors of law and exercises its independent judgment upon the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda); Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000.) In carrying out this independent review, however, the trial court must afford the agency's decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agency's findings are contrary to the weight of the evidence, i.e., the decision was not supported by the preponderance of the evidence. (Fukuda, supra, 20 Cal.4th at pp. 808, 817, 819-822; Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077.) An abuse of discretion is established if the trial court determines that the findings are not supported by the weight of the evidence. (Fukuda, supra, at p. 811.)" (Alberda v. Board of Retirement of Fresno County Employees' Retirement Assn. (2013) 214 Cal.App.4th 426, 433 (Alberda).)
In exercising its own independent judgment, the trial court" 'is free to substitute its own findings after first giving due respect to the agency's findings.'" (Alberda, supra, 214 Cal.App.4th at p. 433, quoting Fukuda, supra, 20 Cal.4th at p. 818.) Thus, the presumption of correctness is rebuttable and may be overcome by the evidence. (Alberda, at p. 433.)" '[T]he trial court may reweigh the evidence and substitute its own findings for those of the [agency], after first giving due respect to the [agency]'s findings,'" including "examining the credibility of witnesses." (Ibid.)
Here, the trial court exercised its independent judgment and found that Pinheiro committed the misconduct alleged against him. Since "there were factual and evidentiary conflicts, the superior court's determination of culpability is conclusive and binding on the reviewing court. On appeal, we review the record to determine whether substantial evidence supports the trial court's conclusions, and we resolve all conflicts and indulge all reasonable inferences in favor of the prevailing party." (Deegan, supra, 72 Cal.App.4th at p. 45; Bixby v. Pierno, supra, 4 Cal.3d at p. 143, fn. 10.)
The parties agree that because" 'discipline imposed on [public] employees affects their fundamental vested right in their employment,'" the trial court "was required to exercise its independent judgment on the evidence and find an abuse of discretion if the [Commission]'s findings of [Pinheiro]'s misconduct were not supported by the weight of the evidence." (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572‒573.) Pinheiro asserts in passing that the trial court "rubber-stamped" the Commission's decision "even though Pinheiro was entitled to an independent review of the evidence against him." To the extent Pinheiro contends the trial court failed to exercise its independent judgment, we deem the contention forfeited because he fails to support it with cogent analysis or citation to relevant legal authority in violation of California Rules of Court, rule 8.204(a)(1)(B). (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"]; Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9; People v. DeSantis (1992) 2 Cal.4th 1198, 1240, fn. 18.)
"With respect to the question of penalty, the superior court's powers of review are quite limited, and are exercised only with great deference to the administrative agency's findings." (Deegan, supra, 72 Cal.App.4th at p. 45, citing Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652.) "Neither the trial court nor the appellate court is entitled to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed." (Deegan, at p. 45.) "The appellate court conducts a de novo review of the penalty assessed, giving no deference to the trial court's determination. Again, the appellate court reviews the agency's selection of penalty and, if reasonable minds can differ with regard to the propriety of the disciplinary action, it finds no abuse of discretion." (Ibid.) "It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown." (Id. at p. 47.)
With respect to whether there was a fair trial, "[t]he' "fair trial"' requirement of [Code of Civil Procedure] section 1094.5 is not synonymous with constitutional due process and does not mandate 'a formal hearing under the due process clause.'" (Pinheiro, supra, 245 Cal.App.4th at p. 1463.) "What is required is simply a 'fair administrative hearing' [citation], which affords the appellant a '"' "reasonable opportunity to be heard." '" '" (Ibid., citing Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1297.) "When reviewing an appellant's claim that he or she did not receive a fair trial, we will uphold the trial court's decision if it is supported by substantial evidence." (Pinheiro, at p. 1464, citing Vollstedt v. City of Stockton (1990) 220 Cal.App.3d. 265, 273.) If the evidence is undisputed, however, we independently review the fair trial issue and "reverse only if the alleged error prejudicially affected the appellant's substantial rights." (Pinheiro, at p. 1464.)
II. Pinheiro Fails to Tailor His Arguments to the Standards of Review
Pinheiro disagrees with the well-established standard of appellate review in cases where, as here, the trial court exercises its independent judgment because a fundamental vested right is at issue. He contends the appellate court, like the trial court, is required to exercise its independent judgment by independently reviewing the evidence before the Commission, resolving any evidentiary conflicts, and assessing credibility to arrive at its own findings of fact. The cases he cites do not support his contention and instead confirm that our review is as we described above.
In Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, our Supreme Court held the trial court must apply the independent judgment standard whenever a fundamental vested right is at stake, but the decision did not address the standard the appellate court must apply when reviewing a trial court's exercise of its independent judgment. (Id. at pp. 32, 44‒45.) As we quoted above, the appellate court in Deegan affirms there are different standards of review at the superior court and appellate court levels, and states that where the trial court exercised its independent judgment, the appellate court reviews the trial court's findings for substantial evidence. (Deegan, supra, 72 Cal.App.4th at p. 45.) Finally, Zink v. City of Sausalito (1977) 70 Cal.App.3d 662 holds the rule articulated in Strumsky applies only to the issue of the truth or falsity of the charge against the employee, while the agency's determination of the penalty can be disturbed only where there has been a manifest abuse of discretion. (Zink, at pp. 664, 665‒666.)
Pinheiro is simply incorrect that we are required to review the Commission's decision independently. Our Supreme Court has clearly stated: "Where a superior court is required to make such an independent judgment upon the record of an administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior court's findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court." (Pasadena Unified School Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.)
Pinheiro's misapprehension of the standard of review affects the arguments he makes in his appellate briefs. Instead of addressing whether substantial evidence supports the trial court's findings, he attacks the Order and the Commission's decision, arguing the evidence presented at the administrative hearing established the Order did not support his termination for good cause. Pinheiro also fails to discuss the standard of review on the issues of the penalty imposed or whether he received a fair trial. Even after the Commission identified the correct formulation of the substantial evidence standard with respect to the trial court's findings in its respondent's brief, Pinheiro continued to assert in his reply brief that the independent judgment standard applied, citing the same authorities discussed above.
"' "Arguments should be tailored according to the applicable standard of appellate review," '" and" '[f]ailure to acknowledge the proper scope of review is a concession of a lack of merit.'" (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948; Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) "When an appellant fails to apply the appropriate standard of review, the argument lacks legal force," and the appellant "fails to show error in the judgment." (People v. Foss (2007) 155 Cal.App.4th 113, 126.)
Pinheiro does not meet his burden on appeal to show reversible error when he fails to tailor his arguments to the applicable standards of review and, indeed, seemingly ignores those standards. None of the arguments in either his opening or reply brief address whether the trial court's findings are supported by substantial evidence or whether the Commission abused its discretion in terminating him based on the findings of misconduct. Instead, Pinheiro simply reargues the merits of his underlying request for the trial court to find, based on the exercise of its independent judgment, that he did not commit misconduct and that any alleged misconduct did not justify his termination. This is not sufficient to show grounds for reversal.
Notwithstanding Pinheiro's failure to meet his burden on appeal, the Commission has addressed the merits of the argument he raises. As such, we consider the merits of the trial court's decision to uphold Pinheiro's termination.
III. Misconduct
The Commission found Pinheiro committed misconduct when he: (1) failed to follow Bandy's directives to avoid Salazar during the workday; (2) disclosed confidential information; and (3) made untruthful statements during St. Marie's investigation. The trial court determined the Commission did not abuse its discretion in making these findings, as they were supported by the weight of the evidence.
Specifically, the trial court found there was substantial evidence Pinheiro made false or misleading statements prior to and during testimony to the Commission. The trial court agreed with the Commission's credibility determinations-that Pinheiro was not credible regarding his relationship with Salazar, while the County's witnesses were credible-and cited the following as examples of Pinheiro's lies: (1) his statement that his encounter with Salazar outside the County building lasted only 20-30 seconds, which account he "later substantially altered" when he testified they had coffee together after speaking outside the County building; (2) Pinheiro's claim he did not call Salazar's direct line was refuted by physical evidence showing his work phone line was used multiple times to call Salazar's direct line; (3) Pinheiro's claim he only gave Salazar a ride to work once or twice was refuted by Gomez, who understood that Pinheiro and Salazar carpooled almost every day of the week, and Pinheiro's later admission they carpooled more frequently; and (4) Pinheiro's claim that he did not know his own phone number and his misleading statement to St. Marie that he only possessed one phone.
The trial court also found there was sufficient evidence to show Pinheiro failed to follow Bandy's directives to avoid contact with Salazar during the workday. The trial court explained that Personnel Rule 10074 gave Bandy the authority to provide an order or directive to Pinheiro, and she credibly testified that beginning in October 2010, she gave multiple directives to Pinheiro to avoid contact with Salazar and that there was no work-related reason for them to have contact. The trial court further found multiple witnesses credibly testified Pinheiro violated Bandy's directive by continuing to have repeated contact with Salazar. The trial court noted that Pinheiro and Salazar denied these incidents, but the compelling evidence from multiple witnesses balanced against Pinheiro's and Salazar's lack of credibility supported the Commission's findings. Finally, the trial court determined there was sufficient evidence to support the Commission's finding that Pinheiro disclosed confidential information more than once.
In his opening brief, Pinheiro directs his arguments to the allegations in the Order and disregards the trial court's findings. In arguing the evidence shows he was not dishonest, did not violate Bandy's directive, and did not divulge confidential information, Pinheiro cites only evidence and inferences favorable to his position and, in doing so, misconstrues or misapplies the substantial evidence standard of review. In applying the substantial evidence standard of review, we accept all evidence supporting the trial court's findings, completely disregard contrary evidence, and draw all reasonable inferences from the evidence to support the findings. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581‒582.) We determine only "if substantial evidence exists to support [finding] in favor of the prevailing party, not to determine whether substantial evidence might support the losing party's version of events." (Id. at p. 582.) We cannot reweigh the evidence, substitute our own inferences from the evidence, or make different assessments of credibility from the trial court's assessments. (Id. at pp. 582‒583; In re Ana C. (2012) 204 Cal.App.4th 1317, 1329.) An appeal is not a retrial of the case or an opportunity for an appellant to rehash arguments about the strength of the evidence. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.)
By citing only evidence favorable to his position and ignoring evidence supporting the trial court's findings, Pinheiro cannot carry his burden of showing the evidence was insufficient to support the trial court's findings and is deemed to have forfeited the substantial evidence argument. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1072; Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.)
Nevertheless, substantial evidence supports the trial court's findings of misconduct. As we set forth in discussing St. Marie's investigation above, record evidence supports the trial court's findings that Pinheiro was dishonest during that investigation in claiming (1) his October 2010 encounter with Salazar lasted only 20 to 30 seconds, (2) he did not call Salazar's direct line, (3) he only gave Salazar a ride to work once or twice; and (4) he did not know his own phone number and possessed only one phone.
Pinheiro had no right to mislead or lie during an internal investigation. (McGrory v. Allied Signal Technologies, Inc. (2013) 212 Cal.App.4th 1510, 1527 [an employer may impose discipline "for an employee's misbehavior during an internal investigation, such as attempting to deceive the investigator"].) "[P]ublic policy does not protect deceptive activity during an internal investigation." (Id. at p. 1528.) The trial court noted that Pinheiro and Salazar both admitted to making false or misleading statements prior to and during testimony to the Commission. For example, Pinheiro admitted his statements to St. Marie that there was no reason for there to be any calls between his and Salazar's phones and that he gave Salazar only one or two rides over a several-year period were "inaccurate." Salazar also admitted to lying to Bandy and Nerland during the investigation. The trial court found the Commission's credibility determinations-that Pinheiro was not credible while respondents' witnesses were credible-were supported by the weight of the evidence.
Further, there is sufficient evidence, as we set forth above, that Bandy issued multiple directives to Pinheiro to avoid contact with Salazar during the workday. As the trial court found, multiple witnesses testified that Pinheiro had repeated contact with Salazar in violation of that directive. The trial court cited examples of this contact, which the evidence supports, including that they were on the same floor in the same vicinity, they were seen in a stairwell together, and they were seen carpooling and arriving to work after the workday began.
Pinheiro asserts there is no evidence that Bandy directed him to avoid contact with Salazar. He cites evidence that he claims show the directive could not have been made- Bandy was the only witness to testify to the directive's existence, Pinheiro denied she ever gave him such a directive, the directive was not in writing, and Bandy did not mention the directive or that Pinheiro violated it in his performance appraisal. But as respondents point out, this argument is foreclosed by the trial court's credibility findings. The trial court specifically found that Bandy credibly testified about the multiple directives she gave Pinheiro to avoid contact with Salazar. "A single witness's testimony may be sufficient to satisfy the substantial evidence test." (Sieg v. Fogt (2020) 55 Cal.App.5th 77, 88.) Thus, Bandy's testimony alone was sufficient to establish that she gave Pinheiro the directive and supports the trial court's finding on this point.
With respect to the trial court's finding that Pinheiro disclosed confidential information more than once, Pinheiro denies disclosing such information. His argument, however, suffers from the same flaw as his other arguments-he cites only evidence that supports his position and ignores evidence that supports the trial court's findings. As we set forth above, there is sufficient record evidence to show that Pinheiro shared confidential information with Salazar on several occasions.
Pinheiro contends the charges against him were based on hearsay and circumstantial evidence. Circumstantial, or indirect, evidence, however, is an acceptable means of proof, and it is not entitled to any greater or lesser weight than direct evidence. (California Jury Instructions-Civil (CACI) No. 202 (Feb. 2024 Update).) "[T]he fact that evidence is 'circumstantial' does not mean that it cannot be 'substantial.' Relevant circumstantial evidence is admissible in California. [Citation.] Moreover, the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony." (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580.)
In sum, there was sufficient evidence to support the findings of misconduct based on dishonesty, insubordination, and the disclosure of confidential information.Therefore, Pinheiro has not satisfied his burden of showing the trial court erred in making these findings.
Pinheiro also contends he did not violate the County's antimoonlighting policy. Following the first Commission hearing, the Commission found Pinheiro violated the County's antimoonlighting policy and cited that as a ground for termination. (Pinheiro, supra, 245 Cal.App.4th at pp. 1462‒1463.) But that was not one of the grounds for termination cited in the Commission's 2020 decision or the trial court's order denying the petition for writ of mandate. Accordingly, we do not address Pinheiro's argument.
IV. Penalty
Since the trial court concluded Pinheiro committed the offenses alleged against him, it was required to uphold the Commission's punishment if there was any reasonable basis for sustaining it. (Deegan, supra, 72 Cal.App.4th at p. 46; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.) As we stated above, "the penalty imposed by the administrative body will not be disturbed in the mandate proceeding unless a manifest abuse of discretion is shown," and there is no abuse of discretion if reasonable minds may differ as the penalty's propriety. (Deegan, at pp. 46‒47.)
We use the same standard as the trial court, reviewing the Commission's penalty for manifest abuse of discretion. (Deegan, supra, 72 Cal.App.4th at p. 47.) We conduct "a de novo review of the trial court's determination of the penalty assessed, giving no deference to the trial court's determination." (Flippin, supra, 148 Cal.App.4th at p. 279.) We do not substitute our discretion for that of the administrative agency on the punishment to be imposed. (Deegan, at p. 47.) "Agencies are vested with high discretion and its abuse must appear very clearly before courts will intervene." (Id. at p. 48.)
Here, the Commission upheld Pinheiro's termination, finding there was good cause to do so based on: (1) his "violations of his employer's directives"; (2) his "multiple violations … of his duty not to disclose confidential information"; and (3) the untruthful statements he made during the investigation. The Commission found "[e]ach ground separately justifies termination."
We find no abuse of discretion in the Commission's decision based solely on Pinheiro's dishonesty. An employee who lies or withholds information during an employer's internal investigation of a discrimination claim may be subject to termination. (McGrory v. Allied Signal Technologies, Inc., supra, 212 Cal.App.4th at p. 1528.)" 'Lying in an internal investigation is disruptive of workplace discipline,'" and public policy does not protect such deceptive activity. (Id. at pp. 1527, 1528.) The Legislature has indicated a strong public policy against having dishonest employees in government service. (Department of Corrections & Rehabilitation v. California State Personnel Bd. (2007) 147 Cal.App.4th 797, 808; accord, Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 952 [" '[p]ublic employees are trustees of the public interest and thus owe a special duty of integrity' "]; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231 ["[d]ishonesty is incompatible with the public trust" and is a basis for termination of employment].)
In managing the labor relations division, acting as the County's chief spokesperson in labor negotiations, and representing the County in its contact with unions and employee groups, Pinheiro held a very public position that required a high degree of good judgment, honesty, and integrity. After Bandy received information of suspected domestic violence between Pinheiro and Salazar, she initiated an investigation to comply with the County's duty to prevent harassment or workplace violence. (Gov. Code, § 12930, subds. (j) & (k).) During that investigation, Pinheiro lied to and misled the investigator, St. Marie, as set forth above. Such dishonesty supports the penalty of dismissal. (Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 718‒719.)
Pinheiro asserts he cannot be disciplined for attempting to cover up his relationship with Salazar as he has a constitutional right to privacy concerning his sexual relationships, citing Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1026. In that case, the appellate court held evidence of the plaintiff's extramarital affairs was erroneously admitted at the trial of his personal injury action because the evidence was irrelevant and unduly prejudicial. (Id. at p. 1014.) In so holding, the appellate court noted that evidence of an extramarital affair, while generally inadmissible because it lacks relevance and smears a witness's character, "may be admissible where it has connection to a substantive issue and goes to motive." (Id. at p. 1026.) The appellate court rejected the defendant's argument that the evidence was relevant to the plaintiff's credibility because during his deposition he denied knowing two of the women involved. The court explained that where marital infidelity is irrelevant to the case's substantive issue, a witness's denial of an extramarital affair at a deposition "may not be contradicted at trial because the denial itself is irrelevant and prejudicial and thus inadmissible." (Id. at pp. 1029, 1034; Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 575‒577 [party not entitled to discovery on the plaintiff's sexual conduct with third persons because her conduct was irrelevant to the issues in the litigation; while the plaintiff denied engaging in extramarital conduct at her deposition, any contradictory proof was, at best, collateral].)
Here, the nature of the relationship between Pinheiro and Salazar was highly relevant to the County's initial inquiry into possible domestic or workplace violence. As we have explained, Pinheiro had no right to lie to or mislead the investigator during that inquiry. This is not a situation, as in the cases Pinheiro cites, where the County was attempting to impeach Pinheiro on an irrelevant issue. Rather, lying during the investigation was relevant to his fitness for his position as the County's representative in labor negotiations. Moreover, the Commission did not terminate Pinheiro's employment because he was involved in an affair. As the Commission explained, it was not concerned with whether there was an extramarital affair, but rather with whether Pinheiro's private relationships impaired or disrupted the employment relationship or his fitness for public service. The Commission did not abuse its discretion in determining Pinheiro's dishonesty had a direct bearing on his fitness for public service.
Pinheiro asserts the County did not have good cause to terminate his employment because his" 'misconduct must bear some rational relationship to his employment and must be of such character that it can easily result in the impairment or disruption of public service,'" citing Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, 483. This principle, and the cases he cites to support it, do not apply here, where Pinheiro was terminated for dishonesty.
The State Civil Service Act lists the causes for discipline of state civil service employees. This list includes insubordination, dishonesty, and a subsection that permits discipline of an employee for "[o]ther failure of good behavior either during or outside of duty hours, which is of such a nature that is causes discredit to the appointing authority or the person's employment." (Gov. Code, § 19572, subds. (e), (f) & (t).) Case law has held that when disciplining an employee under Government Code section 19572, subdivision (t), there must be more than a failure of good behavior; rather, "[t]he misconduct must be of such a nature as to reflect upon the employee's job." (Yancey v. State Personnel Bd., supra, 167 Cal.App.3d at p. 483; accord, Stanton v. State Personnel Bd. (1980) 105 Cal.App.3d 729, 739‒740 [noting the legislative purpose behind Gov. Code, § 19572, subd. (t) "was to discipline conduct which can be detrimental to state service"]; Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187, 194.) These cases, however, do not involve discipline for dishonesty or provide that this test applies to anything other than discipline under Government Code section 19572, subdivision (t).
The County's "Personnel Rule 10," which governs the discipline of County employees, contains a list of causes for disciplinary action similar to the list in Government Code section 19572.
Pinheiro's reliance on Brewer v. Department of Motor Vehicles (1979) 93 Cal.App.3d 358 also is misplaced. There, the Department of Motor Vehicles revoked a vehicle salesman's license to sell vehicles based on his conviction of a crime of moral turpitude. (Id. at pp. 360‒361.) The appellate court affirmed the trial court's decision to order the department to vacate its revocation order because there was an insufficient connection between the conviction and his occupation. (Id. at pp. 361, 365.) The case was not an employment case and did not involve discipline for dishonesty.
Pinheiro argues termination was excessive because he had never been disciplined in any form prior to his termination. Whether progressive discipline was appropriate rested within the Commission's discretion. (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 76; Talmo v. Civil Service Com., supra, 231 Cal.App.3d at p. 230.) Pinheiro does not cite to any evidence that the County formally adopted a progressive discipline policy. The County's rule that governs disciplinary actions, Personnel Rule 10, does not require progressive discipline. In the absence of any formal progressive discipline policy, we decline to conclude the Commission abused its discretion solely because it approved Pinheiro's termination without first requiring the imposition of lesser disciplinary measures. (See Kazensky, at pp. 73, 76.)
In sum, the Commission did not abuse its discretion in terminating Pinheiro's employment based on dishonesty.
V. Pinheiro's Retaliation Claim
Pinheiro contends he was terminated in retaliation for his whistleblowing activity. Labor Code section 1102.5 "provides whistleblower protections to employees who disclose wrongdoing to authorities." (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (Lawson).) Claims brought under Labor Code section 1102.5 follow the two-step burden-shifting process set out in Labor Code section 1102.6. (Lawson, at p. 718.) First, the employee has the burden of demonstrating by a preponderance of the evidence "that the employee's protected whistleblowing was a 'contributing factor' to an adverse employment action." (Id. at p. 712; Lab. Code, § 1102.6.) Once the employee makes this threshold showing, "the employer bears 'the burden of proof to demonstrate by clear and convincing evidence' that the alleged adverse employment action would have occurred 'for legitimate, independent reasons' even if the employee had not engaged in protected whistleblowing activities." (Lawson, at p. 712; Lab. Code, § 1102.6.)
Labor Code section 1102.5, subdivision (b) provides: "An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties."
Pinheiro's retaliation claim stems from an attempt of Unit 2 of the Service Employees International Union, Local 521 (SEIU), which the County had a memorandum of understanding with, to break away from the SEIU. In March 2012, the Fresno Sheriff's Correctional Officers Association (Association) filed a petition with the County to modify Unit 2 to sever the correctional officers from the unit and establish a new unit. In May 2012, the County sent a letter to the Civil Service Commission, which Pinheiro signed, that advised the County was remaining neutral in the matter.
"[A]n employer owes a 'duty of strict neutrality' in the face of competing organizational campaigns between two employee organizations." (County of Monterey (2004) PERB Dec. No. 1663-M, p. 18; Santa Monica Community College Dist. (1979) PERB Dec. No. 103E, p. 22.)
In March 2012, Bandy told Pinheiro that Navarrette's son was a correctional officer in Unit 2. Pinheiro testified he was concerned that might affect the perception of the County's neutrality. Pinheiro also was concerned about the correctional officer being severed from Unit 2 and joining the Association, as the Association was viewed more positively than Unit 2 and was able to negotiate for better benefits. Pinheiro was concerned the County was not being neutral, as it was "engaging in unnecessary discussions to convolute the situation," and claimed he expressed that concern to Bandy. When Pinheiro discussed with Bandy an unfair labor practice charge that the SEIU filed in May 2012, he claimed he continued to express concerns about whether the County was being neutral. Pinheiro felt his relationships with Bandy and Navarrette changed after the unfair labor practice charge was filed. The investigation into Pinheiro started within three weeks of the County's receipt of the unfair labor practice charge. Pinheiro believed speaking to Bandy or Navarrette about his concerns regarding union neutrality was a factor in the decision to investigate him.
The unfair labor practice charge was amended in October 2012, which Pinheiro testified referred to some of the neutrality issues he expressed concerns about.
Bandy, however, did not recall that Pinheiro ever told her or Navarrette they needed to maintain a neutral stance on bargaining units, and Navarrette denied that Pinheiro ever told him he was doing anything illegal in connection with the correctional officers' efforts to separate from Unit 2. Bandy was aware of neutrality, as it was a basic tenet of the job, and she acknowledged the County was obligated to remain neutral when there were issues between bargaining units or representatives.
To Bandy's knowledge, Navarrette did not do anything to support or oppose unit modification, and she was not aware of any benefit his son, or the other correctional officers, would receive if the unit modification were granted. Bandy was not aware of any meetings Navarrette had with anyone in Unit 2. While he met with Eric Schmidt, the president of the Deputy Sheriffs Association, and Eulalio Gomez, the head of Unit 2 and a member of the retirement board, she did not have any reason to believe they discussed Unit 2. Navarrette denied having secret meetings with Schmidt where they discussed the Association's effort to pull away from Unit 2. Bandy testified that to her knowledge, Pinheiro did not tell either she or Navarrette that he should not meet with these people, and Pinheiro never said she had to be neutral and could not take a position. Bandy denied taking any action to negatively impact SEIU or limit SEIU's access to their employees, and Navarrette denied doing anything to encourage the correctional officers to withdraw from Unit 2. Bandy also denied that the union issues had anything to do with her decision to dismiss Pinheiro.
Both the Commission and the trial court rejected Pinheiro's claim that he was terminated because he warned Bandy and Navarrette that the County needed to remain neutral in a union issue, finding it was not supported by the evidence and was without merit. The trial court determined Pinheiro's claim that Navarrette favored a bargaining unit due to a family member's association was speculative, and Bandy expressly denied any concerns about the County's neutrality. Moreover, there was no evidence to corroborate Pinheiro's claim that illicit meetings were held on this topic between County officials and union representatives.
On appeal, Pinheiro asserts: (1) he told Navarrette and Bandy they would violate state and federal law if they engaged in illegal efforts to break the SEIU; and (2) Navarrette and Bandy secretly supported the correctional officers' effort to modify their unit and become part of the Association, where Navarrette's son and other correctional officers would receive better compensation and benefits with the Association. Pinheiro argues the short time frame between the SEIU filing the unfair labor practice charge and Bandy's authorization of the Pinheiro investigation suggests the investigation and his subsequent termination were retaliatory.
Pinheiro, however, ignores the standard of review, which requires us to review the trial court's factual findings for substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824.) The trial court rejected Pinheiro's retaliation claim because he failed to support it with credible evidence. The claim relied exclusively on Pinheiro's testimony. While the credible testimony of a single witness can prove a fact, the trial court is not required to accept that testimony as true. (Lohman v. Lohman (1946) 29 Cal.2d 144, 149.) The trial court rejected Pinheiro's claim that he warned Bandy and Navarrette that the County needed to remain neutral and accepted Bandy's testimony that there were no concerns about the County's neutrality. As respondents point out, Pinheiro's theory of retaliation was rebutted by both Bandy or Navarrette, who denied that Pinheiro ever told them the County needed to remain neutral, that he told them they were doing anything illegal, or that there were concerns about the County's neutrality.
At the Commission hearing and in the trial court, Pinheiro bore the burden of proving his protected whistleblowing was a contributing factor in the County's decision to terminate him. Pinheiro failed to carry this burden because the trial court rejected his testimony and accepted the testimony of Bandy and Navarrette. We are bound by the trial court's credibility determinations and therefore also reject Pinheiro's retaliation claim.
VI. Fair Trial
Pinheiro contends his due process rights were violated because: (1) the Order included allegations of misconduct that occurred more than three years prior to the Order and of contact between Pinheiro and Salazar that occurred before Bandy issued the no-contact directive in October 2010; and (2) he did not have an opportunity to respond to the allegations listed in the Order during the investigation.
A. Evidentiary Issues
Before the Commission, Pinheiro filed a motion in limine to preclude evidence of (1) alleged misconduct that occurred more than three years before the issuance of the Order, and (2) contact between Pinheiro and Salazar before any alleged directive not to have contact with each other.
On the first point, Pinheiro asserted evidence of misconduct older than three years may not be the basis of discipline; therefore, the consideration and inclusion of evidence of the following allegations in the Order would be improper: (1) Pinheiro and Salazar were in a conference room together sometime in 2006 or 2007; (2) Pinheiro and Salazar were in an elevator together in January 2009; (3) emails Salazar exchanged with Rochelle Ramos in September 2009, in which Salazar indicated she was with Pinheiro; and (4) discussions regarding disclosure of confidential information where one of the participants left the County in October 2009. Pinheiro asserted these allegations should be stricken from the Order and witness testimony on them should be disregarded.
On the second point, Pinheiro asserted that assuming Bandy directed Pinheiro not to have contact with Salazar during the workday in October 2010, the following evidence of contact during the workday that occurred prior to the directive was improperly included in the Order and could not be the basis of discipline: (1) Pinheiro and Salazar were in a conference room together sometime in 2006 or 2007; (2) Pinheiro and Salazar were in an elevator together in January 2009; (3) emails Salazar exchanged with Rochelle Ramos in September 2009, in which Salazar indicated she was with Pinheiro; (4) July 19, 2010 emails between Salazar and Eric Cervantes; (5) July 2010 emails between Salazar and Laura Martinez; (6) the October 22, 2010 verbal altercation outside the County building; (7) discussions regarding disclosure of confidential information where one of the participants left the County in October 2009; (8) rides or carpooling, which would occur before or after work that are referenced throughout the Order; (9) taking leave at the same time; and (10) allegations of an affair taking place after hours. Pinheiro asserted that because none of these facts could be the basis for his termination, they must be excluded from evidence at the hearing.
The Commission denied the motion without prejudice stating it was unable to rule on the relevance of such information without context.
Pinheiro reprised these arguments in the trial court. He asserted the consideration and inclusion of the above evidence in the Order entitled him to a writ and warranted reversal of his firing and immediate reinstatement. The trial court rejected these arguments, finding the case Pinheiro relied on for the proposition that misconduct older than three years was inadmissible was distinguishable. The trial court noted the conduct upon which Pinheiro's discipline was based occurred well within three years, and contrary to Pinheiro's claims, the discipline was based on Pinheiro's conduct during the investigation combined with his conduct within a three-year period.
The trial court found "evidence supporting the existence of more than a co-worker relationship between Salazar and [Pinheiro] was highly probative and relevant evidence." The trial court explained that even if there were a three-year limitation period on bringing disciplinary actions, the Commission properly considered evidence of the alleged relationship occurring more than three years prior to the discipline because the nature of Pinheiro's and Salazar's relationship was relevant to determining whether harassment or workplace violence occurred and was introduced to support or refute the conduct which occurred within the appropriate time period.
On appeal, Pinheiro repeats the same arguments made before the Commission and trial court. He asserts the use of evidence of misconduct that occurred more than three years before the Order and contact between Pinheiro and Salazar during the workday that occurred before October 2010 requires reversal.
First, while Pinheiro asserts admission of this evidence constitutes a due process violation, he does not cite any authority governing when an administrative agency violates a person's due process rights or make any reasoned argument that his due process rights were violated by the erroneous admission of evidence. Accordingly, he has forfeited any due process argument. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 [appellant must demonstrate prejudicial or reversible error based on sufficient legal argument supported by citation to an adequate record]; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 [matters not properly raised or that are lacking in adequate legal discussion will be deemed forfeited]; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867 ["[A]n appellant must present argument and authorities on each point to which error is asserted or else the issue is waived"].)
Pinheiro contends that evidence of misconduct older than three years may not be the basis of discipline, citing Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151. There, the appellate court held laches precluded a university from basing its decision to discipline a professor accused of sexual harassment on events that occurred five years before charges of misconduct were brought. (Id. at pp. 1154‒1155, 1157.) The appellate court borrowed the three-year statute of limitations of Government Code section 19635, which is applicable to state civil service employees where discipline is based on any civil service law, to hold that unless excused, "a delay in the initiation of disciplinary proceedings for more than three years is unreasonable as a matter of law." (Brown, at pp. 1157, 1160.)
Even if this case is applicable here, it does not hold that evidence of older events may not be admitted if relevant, but rather that discipline may not be founded on those events. Pinheiro does not argue the Commission's decision to terminate his employment was based on the events he asserts should have been excluded. He would be hard-pressed to do so, as the Commission's imposition of discipline based on his dishonesty clearly was based on events that occurred within three years of the Order, which we have determined is sufficient to support the Commission's decision to terminate him.
Moreover, even if the Commission erred in admitting the evidence he objects to, the erroneous admission of evidence at an administrative hearing does not constitute a prejudicial abuse of discretion "if there is sufficient competent evidence to support [the] determination." (So. Cal. Jockey Club. v. Cal. etc. Racing Bd. (1950) 36 Cal.2d 167, 176; English v. City of Long Beach (1950) 35 Cal.2d 155, 159 ["where there is substantial evidence, properly admitted, which supports a tribunal's determination, its order or decision will not be annulled because of errors in ruling on the admission of evidence"]; McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044, 1054.) Thus, "[t]he admission or rejection of evidence by an administrative agency is not grounds for reversal unless the error has resulted in a miscarriage of justice," i.e., "it must be reasonably probable a more favorable result would have been reached absent the error." (Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2009) 176 Cal.App.4th 1249, 1254‒1255.)
Since there is evidence to support the trial court's findings of misconduct based on dishonesty, and, as the Commission found, that ground supports Pinheiro's termination, Pinheiro cannot show he would have achieved a more favorable result had the events that occurred more than three years before the Order or before Bandy issued her directive been excluded from evidence.
B. Pinheiro's Opportunity to Respond to Allegations
Finally, Pinheiro claims his due process rights were violated because he was not given the opportunity to respond during St. Marie's investigation to many of the allegations that were lodged against him in the Order. Citing case law that applies to wrongful termination actions based on implied employment contracts that involve public and not public employment, he asserts the Commission was required to determine whether St. Marie's investigation was objectively and fairly conducted. (See Cotran v. Rollins Hudig Hall Intern., Inc. (1998) 17 Cal.4th 93, 107‒108 [defining" 'good cause'" for discharge as a "reasoned conclusion … supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond"]; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 264 [employer liability for wrongful termination turns on whether the employer acted in good faith, made the decision to terminate after "an investigation that was appropriate under the circumstances," and had reasonable grounds for believing the employee engaged in misconduct]; Pomeroy v. Wal-Mart Stores, Inc. (E.D. Cal. 2011) 834 F.Supp.2d 964, 977 [following Cotran].)
Despite Pinheiro's reliance on wrongful termination law, his claim is styled as a due process violation. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) The County, however, complied with case law governing public employment and due process. (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 538, 545‒548; Skelly, supra, 15 Cal.3d at pp. 207‒208; Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 949.) A permanent civil service employee such as Pinheiro is entitled to pre-removal safeguards including notice of the proposed action and the reasons therefor, a copy of the charges and materials on which the action is based, and the "right to respond, either orally or in writing, to the authority initially imposing discipline." (Skelly, at p. 215.) "[A] public employee is entitled to a full evidentiary hearing after the disciplinary action is imposed." (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1176; accord, Townsel, at pp. 949-950.)" 'The minimal due process rights required by Skelly prior to discharge are merely anticipatory of the full rights which are accorded to the employee after discharge.'" (Williams v. City of Los Angeles (1990) 220 Cal.App.3d 1212, 1217.)
As the trial court determined, the record does not support Pinheiro's claim that he did not have sufficient opportunity to present his defense. Pinheiro was interviewed twice by St. Marie, who the trial court noted appeared to be a neutral investigator. Even if Pinheiro was not given the opportunity to respond to every allegation in the proposed order of disciplinary action, he was given the full panoply of pre- and post-termination rights granted public employees. He was served with notice of the proposed disciplinary action; a Skelly hearing was scheduled and continued twice at his attorney's request. At the Skelly hearing, Pinheiro, who was represented by counsel throughout these proceedings, had the opportunity to present his case. Following issuance of the Order dismissing him, Pinheiro requested a hearing before the Commission and submitted a 16-page answer which addressed each allegation in the Order. Pinheiro has had three full hearings before the Commission. In each hearing, he had the opportunity to respond to the allegations, cross-examine witnesses, call his own witnesses, and testify in his own defense. The circumstances of this case did not warrant anything more.
Pinheiro has not convinced us that in addition to these due process protections, the Commission must determine whether St. Marie's investigation was adequate. Moreover, Pinheiro has not carried his burden of proving the conduct of the investigation deprived him of a fair hearing or otherwise amounted to a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: DETJEN, Acting P. J. FRANSON, J.