Opinion
G063584
07-01-2024
COUNTY OF RIVERSIDE, Plaintiff and Respondent, v. ADRIAN ESTRADA, Defendant and Appellant.
Stone Busailah, Michael P. Stone, Muna Busailah, and Robert Rabe for Defendant and Appellant. Liebert Cassidy Whitmore, Jennifer M. Rosner, and Stefanie K. Vaudreuil for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. CVRI2202607 Daniel A. Ottolia, Judge. Affirmed.
Stone Busailah, Michael P. Stone, Muna Busailah, and Robert Rabe for Defendant and Appellant.
Liebert Cassidy Whitmore, Jennifer M. Rosner, and Stefanie K. Vaudreuil for Plaintiff and Respondent.
OPINION
GOETHALS, J.
The Riverside County Sheriff's Department (the Department) terminated Adrian Estrada's employment, following an incident in which he sexually harassed a fellow employee who was also his roommate, and then was dishonest about what had occurred during a subsequent investigation. Estrada claimed throughout the proceedings below that he was "joking" during the incident and did not intend to solicit sex from John Doe. The administrative hearing officer found Estrada not credible but nonetheless concluded he was not willfully dishonest during the investigation. The hearing officer rejected the Department's decision to terminate Estrada's employment, concluding that he should instead be reinstated after a suspension.
In his opening brief, Estrada refers to the other man as "the roommate," rather than using his name, while the Department refers to him in its respondent's brief as John Doe. We adopt the latter.
On appeal, Estrada minimizes the "joking" claim. He now claims he "never denied the central facts of his attempts to obtain his roommate's consent to engage in oral copulation." We disagree. When asked during his administrative interview if he "[w]ould . . . agree that your intention in all this was to see if [Doe] would allow you to suck his dick?" he said, "No, sir." At the hearing, he denied under oath that he was seeking sex with Doe, stating that even if Doe had said "yes" to his "joking" offer, he would not have done it.
The Department then petitioned the trial court for a writ of mandate to overturn the hearing officer's decision; the court issued the writ and ordered Estrada's termination. Estrada now appeals, arguing the hearing officer's decision must be reinstated. As the Department points out, we must evaluate the propriety of the hearing officer's decision, rather than the trial court's ruling. We conclude that several of the key findings in the hearing officer's decision are not supported by substantial evidence. We therefore affirm the trial court's decision.
We take our factual summary largely from the hearing officer's decision.
The hearing officer found Estrada "was a probationary Riverside Deputy Sheriff, after having been previously employed by the Department as a Correctional Deputy. He is openly gay, but his sexual preference did not cause any substantial happenstance [fn. omitted] until the night of September 30, 2020, when there was an off-duty, unwelcomed interaction between him and a fellow correctional deputy who was a boarder in [Estrada's] home. Deputy [John Doe] is heterosexual, and with a girlfriend at the time who was known to [Estrada.]
A correctional deputy is a "non-sworn or civilian employee that does jail-related duties," while "a sworn deputy sheriff . . . could be in a field patrol assignment, armed, making arrests." At the time of the incident, Estrada had completed his deputy sheriff training program and been placed on a patrol assignment.
"What is uncontested is that on the night of September 30, 2020, [Estrada] two or more times offered to give a 'blow job' to [Doe], the first time in [Estrada's] bedroom, where they had been comparing firearms, and the second (or third) time when [Estrada] followed [Doe] into [Doe's] bedroom, where [Estrada] got on his knees in front of [Doe] and made a motion as to pull down [Doe's] athletic shorts.
The hearing officer's apparent uncertainty about the number of times Estrada offered his sexual services arose out of the inconsistencies in the testimony.
Although Estrada was inconsistent about whether he actually pulled at Doe's shorts, Doe was not. His testimony was that Estrada tried to remove his shorts after he had refused Estrada's offer of oral sex, and that Estrada succeeded in pulling the shorts down a bit before Doe "swiped his hand out of the way and tried getting out of the room."
"[Estrada] claimed he was merely joking and told this to [Doe] the two times [Doe] asked him if he was serious. This is disputed by [Doe] who believed ultimately [Estrada] was serious, leading to his consulting with a third housemate, who was also a Correctional Deputy, and his girlfriend. When questioned by his sergeant [Doe] said he wanted an assault complaint to be fil[]ed. [Doe] moved out of the house that night.
"After he reported to work the following day, [Estrada] was arrested and booked for a criminal assault."
After his arrest, Estrada was interviewed as part of the criminal investigation. When asked about the incident, Estrada claimed he had been joking with Doe when he asked if Doe "want[ed] a blow job." According to Estrada, Doe asked if he was kidding. Estrada said he was. But then, according to Estrada, he "asked him again, I'm like, hey, do you want a blow job, dude?" Doe walked out of the room into the main living area, and Estrada "grab[bed] his arm like, come on, dude, it'll be fun, blah, blah, blah blah." The two were then "following each other down around the house and stuff. And I'm like, are you sure, dude? And he goes, yeah, you're kidding? You're kidding? And I'm like, yes, I'm kidding."
Estrada said Doe then went into the bathroom and he left Doe alone. The interviewer then said, "you kind of left out some-some things about maybe what happened in [Doe's] room. I think a little bit more happened in the bedroom." Estrada agreed. "Oh yeah. So we were in the room and I was like, come on, dude, it'll be fine. And I went like-started going down on my knees."
Estrada claimed that was the end of the incident, but when the interviewer asked whether he ever pulled down on Doe's shorts, Estrada acknowledged he "swiped the front of his shorts" but claimed he did not pull on them. He said Doe's response to that was "like, dude, stop." Estrada said he was not trying to make Doe uncomfortable; he was just "trying to make a joke." He explained "I could joke with everybody. We used to do it in the jail, too." He described the entire encounter as "just a big joke" and "really nothing."
When the investigator asked Estrada, "Is it possible that you maybe went too far with your joking?" Estrada acknowledged, "I probably did [¶] . . . [¶] cross his personal boundaries." Estrada later said he stopped because "like I could tell that he was not just kidding anymore."
In October 2020, the district attorney declined to charge Estrada with a crime, stating there is "no way to prove beyond a reasonable doubt." The district attorney made no finding regarding the existence of probable cause to arrest Estrada.
Estrada was next interviewed on December 16, 2020, as part of an administrative inquiry by the Department's Professional Standards Bureau. He was accompanied by a legal representative.
During that interview, Estrada characterized his conduct toward Doe as "horseplay with him." Estrada acknowledged that after Doe left Estrada's room, he walked with Doe into the main living area, where he "pulled on his arm like, oh, this is going to be fun, like it's just a joke."
Estrada claimed that after the two of them "went from the kitchen to [Doe's] bedroom," Estrada "got down onto my one knee, and that was the end of it." According to Estrada, Doe then "said, oh, I'm going to take a shower"; he "exited the bedroom, went into the restroom, and then that's when the end of it was."
When the interviewer asked Estrada follow-up questions, like whether "[d]id anything else happen when you were down on one knee?" Estrada conceded, "I pulled up his shorts band, but that was it. Nothing came down or nothing was ever exposed." When the interviewer asked "what did he do when you did that?" Estrada said Doe "brushed my hand away."
Later in the interview, there was a lengthy exchange over whether Estrada pulled the band of Doe's shorts "down," as Doe claimed, or merely, "out" as Estrada claimed.
Estrada then acknowledged that when Doe left the bedroom to go into the bathroom, Estrada "was in front of the bathroom door." He said Doe "closed the door." When the interviewer asked if "anything happen[ed] as he was closing the door?" Estrada conceded that "[m]y foot was right there in front of the door, so then I moved my foot so that he could . . . finish closing the door." Estrada agreed his foot was in front of the door "[t]o prevent it from closing all the way."
After Estrada agreed, his legal representative sought to "clarify," asking Estrada if he "intentionally prevent[ed] the door from closing," and Estrada said he did not.
The interviewer asked Estrada about his claim that he joked around with other deputies in an effort to make them feel comfortable around him. Estrada explained that to "smooth[] out . . . uncomfortableness" about his sexuality, he would say flirtatious things like "hey, handsome" or "what's up buddy," while moving his eyebrow. He stated he had joked around with Doe in the past, at a time when he was having difficulty with his girlfriend, telling him "we'll take you to West Hollywood . . . and we'll find you a sugar daddy." Estrada insisted that during the recent incident he "didn't have any ill intent to do anything to him or with him or had no desire to do anything with him." He claimed he had no idea why Doe was upset by the incident and suggested Doe might have been "coached."
When the interviewer asked Estrada whether details offered by Doe sounded correct, he responded, "I don't recall, sir." He acknowledged it was possible Doe's recollection was correct, but "I just don't recall." After stating he did not recall whether he had asked Doe about a blow job "five to six times"-as Doe claimed-Estrada said, "I just asked him the one time and that was it." When asked if it was possible that he asked Doe for a blow job more than once, Estrada replied "I don't recall, sir."
On February 24, 2021, the Department notified Estrada that it intended to terminate his employment as a correctional deputy because (1) he had engaged in conduct which brought "public or known discredit to this Department" or which he knew or reasonably should have known "is unbecoming a member of this department, is contrary to good order, efficiency or morale, or tends to reflect unfavorably upon this department or its members"; and (2) he made false or misleading statements, or omitted material information, during an investigation or lawful inquiry.
During oral argument, the parties agreed that Riverside County's memorandum of understanding with the Department provided for a range of disciplinary actions, including termination, if substantial evidence supported a finding that a deputy sheriff had violated department standards manual section 340.6.5 ("providing false or misleading statements") or department standards manual section 340.6.4 (conduct unbecoming a deputy sheriff).
The notice informed Estrada that his conduct during the incident was "unbecoming a department member" since Estrada had "propositioned [Doe] for oral sex several times, even after [he] told you to stop. You went so far as to kneel down in front of [him], reaching out and pull[ing] [his] shorts down slightly before [he] had to stop you and push you away."
The notice addressed Estrada's claim that his actions toward Doe were a joke, finding the claim was not credible: "you continually asking for [Doe] to perform oral sex on him, was not a joke, but a proposition to engage in oral sex with [him], thinly veiled as a joke. In this case, [Doe] continuously declined your proposition, first politely then forcibly. Despite [his] continued resistance of your advances, and adamant declination of your offer to perform oral sex, you continued to pursue him insistently, until ultimately cornering him in his bathroom where he retreated, intending to lock himself inside to stop your advances. You actively prevented [him] from shutting the bathroom door and only ceased your unrelenting advancement because of a Facetime telephone call [he] received from his girlfriend. [¶] These facts support [Doe's] allegation that the matter was an attempted sexual assault, not a joke."
The notice also addressed the fact Estrada had been dishonest during the investigation process when he made several inconsistent and dishonest statements including: (1) whether he actually pulled on Doe's shorts, or merely '"swiped"' at them; (2) at what point in the incident Doe received a call from his girlfriend; (3) whether Estrada believed '"he may have [gone] too far"' with Doe, or instead believed he "did absolutely nothing wrong during the incident"; (4) the extent to which Estrada followed Doe throughout the house; and (5) whether he asked Doe to engage in oral sex multiple times, or only once. The notice explained that, while each of these discrepancies, taken alone, might be viewed as an innocent misrecollection, when considered together they tended to show "intentional deception" and "a pattern of minimization of your part, during your administrative interview."
The notice concluded Estrada's conduct brought discredit and embarrassment to the Department because he was arrested and booked into jail after it was determined there was probable cause to conclude he had committed the crime of "attempted forcible oral copulation."
A month later, the Department terminated Estrada "for the causes and acts specified in our letter of intent dated February 24, 2021." Estrada then requested an administrative hearing to challenge the termination decision.
At the administrative hearing, the Department's internal affairs investigator testified regarding the inquiry into Estrada's conduct. He stated that Estrada's termination was appropriate because of the severity of Estrada's misconduct, which the Department "found . . . to be disturbing and profound in the sense that [it] rose to the level that caused us great concern about one employee attempting to assault another employee"; and because of the potential for future misconduct. The investigator explained the Department was concerned that if Estrada remained employed, "[w]e faced the potential that further acts would be carried out against other members of the Department, and worst-case scenario, members of the public."
The investigator described the "physical contacts" Estrada engaged in as his grabbing Doe's arm in the main living area, and grabbing his shorts when he went down onto one knee in Doe's bedroom.
The investigator observed that, although Estrada was still a probationary Deputy Sheriff at the time of the incident, he had completed his training as a sworn deputy. Following the incident with Doe, Estrada's probationary promotion was rescinded and when Estrada was terminated from the Department, he was identified as a "correctional deputy."
During his hearing testimony, Estrada again characterized his conduct as "horseplay." Estrada acknowledged that after he and Doe left his room and he followed Doe into the main living area, he "grabbed [Doe's] wrist." Estrada insisted he did so without force; when asked why he had grabbed Doe's wrist, Estrada claimed to "have no reason for it." He denied saying anything when he grabbed Doe's wrist.
Estrada said he then followed Doe into his own bedroom before dropping onto one knee to "simulate the act of oral sex" and "swip[ing] at the front of his shorts" before Doe "brushed [his] hand away." He acknowledged "kind of brush[ing] the shorts."
Estrada claimed his foot just "got caught in the door" when Doe entered the bathroom, and he denied making any effort to force entry into the bathroom. When asked why he had followed Doe to the bathroom after Doe brushed his hand away from Doe's shorts and left his own room, Estrada replied "I don't know."
Estrada maintained throughout his hearing testimony that his interaction with Doe had been a joke. He disagreed with the statement that he "probably crossed [Doe's] personal boundaries" when he reached for Doe's shorts while kneeling in front of his groin; he claimed that statement was originally made by the interviewer, not him. After being shown the transcript of the interview, which indicated otherwise, Estrada still insisted it was the interviewer who "made that statement asking me if I had ever been told that I crossed the line and I told him no." Estrada denied becoming aware during the incident that Doe had stopped engaging with him in his "joke." Estrada acknowledged during his hearing testimony that he "mess[ed] around with co-workers in the jail" and stated it was his belief that asking Doe for oral sex "was like joking in the jail."
Although Estrada stated that his joking with coworkers in the jail did not include asking them if they wanted oral sex, the record reflects he did that, including in a text with a coworker. That coworker viewed it as a joke and was not offended.
In his decision, the hearing officer stated "[t]he factual issues in dispute are essentially whether [Estrada] was joking, and whether [Doe] reasonably concluded [he] was not." He also focused on the issue of whether Estrada's "physical action during the incident . . . justified the conclusion of the Department that [Estrada] was attempting oral copulation by use of force."
The Department's witness testified that was Doe's position, not its own.
The hearing officer found no fault in the Department's initial response to the incident, but concluded it erred by failing to reconsider its position and "become more reflective and dispassionate" after the district attorney declined to file criminal charges. The hearing officer believed that the severity of Estrada's misconduct was mitigated by the fact it did not occur while he was a sworn deputy sheriff on duty, but instead when he was an off-duty civilian jailer, and it "did not rise to the level of a forced attempt to secure [a] sexual act."
The hearing officer rejected Estrada's claim that he was joking. He noted Doe gave Estrada "no encouragement" and instead "rebuffed" him, and there was no "acceptable explanation as to why [Estrada] then followed [Doe] into [his] bathroom." The hearing officer found "there is no excusing [Estrada's] behavior beyond the first rejection of oral copulation," and that his "grabbing of [Doe's] shorts (or attempt thereto) while kneeling and facing [Doe's] groin was more than just weird."
The hearing officer thus concluded Estrada engaged in behavior that he knew or should have known "is unbecoming a member of the department, is contrary to good order, efficiency or moral, or tends to reflect unfavorably upon his department or its members." The hearing officer nonetheless declined to find Estrada's conduct rose to the level of a criminal sexual assault because "[n]o significant force was used by [Estrada] in his pursuit of oral copulation." The hearing officer also rejected the Department's conclusion that Estrada had engaged in intentional misrepresentation during the investigation in an attempt to hide his misconduct, noting that both Estrada and Doe had misrecollected details of the incident and "[i]n this instance of he said vs. he said, the favoring of [Doe's] credibility and denigrating the credibility of [Estrada] does not constitute proof of dishonesty."
Because the hearing officer did not believe Estrada's conduct was criminal and found his statements during the investigation were as consistent as the Department could reasonably expect from a civilian jailer, he concluded termination of Estrada's employment was not appropriate. In reaching that conclusion, the hearing officer acknowledged that an important factor in determining whether termination is appropriate is the "'likelihood of its reoccurrence.'" He explained that Estrada's misconduct was not likely to be repeated because during his 12-year history with the Department, there had been no prior complaints against him.
DISCUSSION
1. Standard of Review
Code of Civil Procedure section 1094.5 governs judicial review of adjudicatory decisions by administrative agencies. (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 418.) The review may include questions about whether there was a fair trial, and "whether there was any prejudicial abuse of discretion." (§ 1094.5, subd. (b).) An abuse of discretion is established if the administrative agency has failed to proceed "in the manner required by law, [if] the [agency's] order or decision is not supported by the findings, or [if] the findings are not supported by the evidence." (Ibid.) We "independently determine[] whether the agency prejudicially abused its discretion by failing to proceed in the manner required by law, such as by failing to comply with required procedures, applying an incorrect legal standard, or committing some other error of law." (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99.)
When an employer challenges the hearing officer's decision on a disciplinary matter we apply the substantial evidence standard of review in assessing the officer's factual findings. (Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 470.)
"'In substantial evidence review, the reviewing court defers to the factual findings made below. It does not weigh the evidence presented by both parties to determine whose position is favored by a preponderance. Instead, it determines whether the evidence the prevailing party presented was substantial-or, as it is often put, whether any rational finder of fact could have made the finding that was made below. If so, the decision must stand.'" (Coastal Environmental Rights Foundation v. California Regional Water Quality Control Bd. (2017) 12 Cal.App.5th 178, 187-188.)
"[T]he scope of review is the same in the appellate court as it was in the superior court, that is, the appellate court reviews the administrative determination, not that of the superior court, by the same standard as was appropriate in the superior court." (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501.)
Because Estrada did not file his own writ petition to challenge any aspect of the hearing officer's decision in the trial court, he cannot raise such a challenge for the first time on appeal. (Code Civ. Proc., § 1094.5; Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 117 ["an issue or theory of the case that was not asserted in the trial court may not be raised for the first time on appeal"].) We therefore do not consider Estrada's challenge to the hearing officer's finding that the Department's decision was not motivated by anti-gay bias, his contention that he was falsely arrested, or his assertion that the Department unfairly subjected him to a second interview, thus potentially "entrap[ping]" him into making inconsistent statements.
The Department's notice stated as a ground for termination that Estrada had brought discredit and embarrassment to the Department when he was arrested and booked for the crime of attempted forced oral copulation after it was determined there was probable cause to do so. Estrada argues that any embarrassment was self-inflicted because the Department arrested him without probable cause, as confirmed by the district attorney's subsequent decision not to charge him with a crime. The argument is contrary to the hearing officer's findings. Estrada did not challenge those findings below, nor has he acknowledged them on appeal.
2. Estrada's Dishonesty During Investigation
One of the Department's justifications for Estrada's termination was its conclusion that he had been intentionally dishonest during the investigation in an effort to minimize the perceived severity of his conduct. The hearing officer concluded the inconsistencies in Estrada's statements were not significant and he was not intentionally dishonest during the investigation.
Evaluating a witness's credibility is normally outside the purview of an appeal. (Citizens for Responsible &Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1340) [appellate court must defer to the lead agency's weighing of credibility questions involving disputed factual questions]; James v. Board of Dental Examiners (1985) 172 Cal.App.3d 1096, 1115 ["In a contest of credibility, we defer to the factfinder"].) But in this case, we find the hearing officer's conclusion was fatally flawed.
First, the hearing officer excused Estrada's inconsistencies on the basis that "a long-service civilian jailer . . . should not necessarily have been expected by the Department to have the same ability to recall details as it would expect from an experienced Deputy Sheriff." We disagree.
As the Department points out, Estrada was a sworn deputy sheriff who had completed his training by the time of the incident. Thus, the hearing officer's decision to evaluate Estrada's credibility using a reduced "civilian jailer" standard is not well-founded in this record and was therefore an abuse of discretion.
The hearing officer also found it inappropriate to draw a negative conclusion about Estrada's credibility just because his recollection of the encounter with Doe was different from Doe's recollection. Again, we disagree.
The Department's analysis of Estrada's dishonesty during the investigation was based on the many internal inconsistencies within his own statements, not on the fact his recollection of the incident differed from Doe's. Estrada's statements confirm all the essential elements of the incident: "[Estrada] agreed to give statements to both the criminal and administrative investigators, during which he admitted the essential elements of the episode, i.e., he repeatedly asked John Doe, his house-mate, if he could orally copulate him, despite being told he could not; he followed John Doe into his bedroom, where he got down on his knees and asked if he could orally copulate him; and, he left the bedroom only after John Doe entered his bathroom (and began using his cell phone)."
Estrada unequivocally asserted, during his administrative interview, that he propositioned Doe one time; he denied repeatedly that Doe ever told him "no." Estrada also claimed he had no idea Doe was upset during the incident, and he suggested Doe had been "coached" by someone into complaining. These significant inconsistencies are identified by the Department in its notice.
The hearing officer addressed only one of the inconsistent statements identified in the Department's notice of intent to terminate, i.e., Estrada's differing recollections about when it was that Doe's girlfriend called him via FaceTime during the incident.
We note that while Estrada's counsel argued that inconsistencies in statements made at different times can be attributable to innocent misrecollection, Estrada himself never actually testified that is what occurred in this case. Instead, when questioned at the hearing about his earlier inconsistent statements, Estrada denied any recollection of such statements. Consequently, there is no evidence supporting the hearing officer's conclusion that Estrada's inconsistent statements were innocent mistakes.
The hearing officer's conclusion Estrada was not intentionally dishonest during the investigation is also contradicted by the hearing officer's finding which rejected Estrada's key defense throughout the proceedings, i.e., that the entire incident with Doe was just a joke gone wrong. The hearing officer identified that issue, along with the related issue of whether Doe had reasonably believed Estrada was not joking, as the essential disputed factual issues in the case. The hearing officer concluded that "[a]s to [Estrada's] behavior that evening, it was evident he was not merely joking." The hearing officer's finding on that point indicates he agreed with the Department's conclusion that Estrada had been deliberately dishonest during the administrative investigation in an effort to minimize the severity of his conduct.
Finally, the hearing officer minimized the significance of Estrada's dishonesty, reasoning that even if Estrada had been dishonest during the internal investigation, that misconduct was not significant because "[Estrada's] responses, disingenuous or not, did not prolong or otherwise impede the administrative investigation." Once again, we disagree as the evidence before us related to that point is to the contrary.
For these reasons, we conclude the hearing officer abused his discretion in concluding Estrada did not willfully provide false or misleading statements in connection with the investigation into the incident.
3. Seriousness of Estrada's Conduct
We conclude the hearing officer erred in evaluating the seriousness of Estrada's conduct and whether that conduct justified his termination for several reasons.
First, as explained in People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12, even a minor unconsented touching may qualify as a criminal battery because "'force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'" And here, where Estrada's unconsented touch was to the elastic waist of Doe's shorts, which followed Estrada's disturbingly persistent effort to get the unconsenting Doe to submit to his advances, that touch was hardly minor. As the hearing officer concluded, Doe was "understandably freaked-out" by it.
Second, the hearing officer's focus on the potential criminality of Estrada's conduct appears to arise from the hearing officer's mistaken belief that the Department's decision to terminate Estrada was based in part on its conclusion that he had committed a criminal assault. As the hearing officer put it, "[Estrada's] behavior did not constitute an attempted criminal assault as the Chief intim[]ated in his Notice of Intent to Terminate."
But the Department's notice of intent to terminate does not cite criminal misconduct as a basis for its decision to terminate Estrada. While the Department did note that the facts of the incident "support[ed Doe's] allegation that the matter was an attempted sexual assault, not a joke," the significance of that statement was its rejection of Estrada's "joke" claim. At no point did the Department state in its findings that Estrada had engaged in a criminal sexual assault, or that his termination order was based on such a finding.
An "assault" is a civil wrong when the level of force is an unconsented touching, without significant violence. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890 [civil assault requires only that the defendant acted with intent to cause harmful or offensive contact or threatened to touch the plaintiff in a harmful or offensive manner, and the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner].) That the Department was concerned about potential liability arising out of a civil assault is confirmed by the witness's explanation that it was "looking at the liability side of that as far as future acts could be carried out against other [members of the Department] or members of the public" which "would cause great concern for us."
Consequently, to the extent the hearing officer concluded that the Department's termination decision could not stand because the Department's justification for it-i.e., a criminal sexual assault-failed, that conclusion was unsupported by substantial evidence.
4. Conduct Bringing Discredit and Embarrassment to the Department
The Department cited the fact that Estrada's conduct brought discredit and embarrassment to the Department as one of its grounds for termination. It noted that as a consequence of his conduct, he was "arrested and booked into jail," that "[a]rrest records of adults . . . are available to the public," and that the criminal case "sheds a negative light on the Department to an outside agency."
The hearing officer agreed that Estrada's conduct caused the Department embarrassment: Estrada "should have known his behavior would cause an embarrassment within the Department.... The Department is a paramilitary organization and would not welcome, nor should it, unwanted sexual behavior on a co-employee, whether on or off duty."
While Estrada sought to establish on appeal that it was the Department which was responsible for any public embarrassment, because his arrest was unjustified, that assertion was rejected by the hearing officer, who found no fault in the Department's initial response to the incident.
5. Likelihood that Estrada's Conduct Would be Repeated
In deciding that termination was too harsh a consequence in this case, the hearing officer acknowledged that under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, a key factor in deciding whether termination is appropriate is "the extent to which the employee's conduct resulted in, or if repeated is likely to result in '[h]arm to the public service."' (Id. at p. 218.)
The hearing officer found that Estrada's conduct was not likely to be repeated; he did not explain how he reached that conclusion other than by referencing a lack of prior complaints from coworkers or inmates. But the uncontradicted evidence demonstrated Estrada had made a habit of engaging in sexual banter while at work. Estrada does not deny that; he described the incident with Doe as being in keeping with that habitual behavior.
Strikingly absent from this record is any recognition by Estrada that his behavior with Doe was unacceptable. The only evidence in our record related to that subject is Estrada's statement during the criminal interview that he probably crossed Doe's personal boundaries. But he later denied ever saying that. Estrada does not claim to have been intoxicated or otherwise impaired during the incident. He never suggested he would not do anything like this in the future. We conclude the evidence in this record is insufficient to support the hearing officer's conclusion that Estrada was not likely to repeat his conduct.
For the foregoing reasons, we conclude the hearing officer erred in deciding that termination of Estrada's employment was not the appropriate remedy in this case.
DISPOSITION
The judgment is affirmed. The Department is entitled to its costs on appeal.
WE CONCUR: MOORE, ACTING P.J., GOODING, J.