Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BS097091 of Los Angeles County. David P. Yaffe, Judge.
Law Offices of Dean B. Gordon, Dean B. Gordon; Tritt & Tritt and James F. Tritt for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Bruce A. Behrens, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Ronald W. Beals, Assistant Chief Counsel, Manuel C. Alvarado, and Raiyn Bain, County Counsel, for Real Party in Interest and Respondent.
ASHMANN-GERST, J.
Cletus Curah (Curah) appeals the trial court’s denial of his request for a petition for a writ of mandate following his discharge of employment by the California State Department of Transportation (Caltrans). On appeal, Curah contends: (1) the trial court did not properly apply the substantial evidence standard of review when it reviewed the evidence presented at the administrative hearing; (2) the administrative law judge denied him due process by disallowing the testimony of one of his witnesses; and (3) Curah’s statements regarding race discrimination and mistreatment of him as an injured worker cannot be used against him (Cal. Const., art. I, § 2). We are not persuaded by Curah’s arguments, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Curah’s Employment History with Caltrans
Curah began working with Caltrans on July 13, 1988, and held the job classifications of a junior civil engineer and civil transportation engineer. Caltrans terminated Curah’s employment effective September 15, 2004.
Curah’s Prior Adverse Actions
This case is Curah’s third adverse action for improper conduct. On August 4, 1997, Curah received a 30-day suspension that the California State Personnel Board (the Board) adopted. Specifically, the Board found that Curah had violated Government Code section 19572, subdivisions (d) [inexcusable neglect of duty]; (e) [insubordination]; (m) [discourteous treatment]; (o) [willful disobedience]; and (t) [other failure of good behavior, on and off duty, causing discredit to the appointing authority or the person’s employment]. The Board’s finding was based upon the administrative law judge’s determination that Curah (1) was argumentative when his supervisor instructed him to attend a staff meeting, (2) was argumentative and physically threatened to harm his supervisor during a meeting called to resolve a discrimination complaint, and (3) would not take instructions from his supervisor.
Then, on June 10, 2002, the Board adopted Curah’s 45-day suspension. That time, Curah was charged with violating Government Code section 19572, subdivisions (d), (e), (m), (o), (p) [misuse of state property], and (t). The Board’s decision was based upon the administrative law judge’s finding that Curah had been confrontational with two security guards, had poked a member of the public in the chest, had urinated in public, had misused the operations of his state vehicle, and had failed to provide his supervisor with a written report.
The Instant Adverse Action
On September 2, 2004, Curah was charged with violating Government Code section 19572, subdivisions (d), (e), (m), (o), and (t). His employment was terminated, and Curah appealed. An administrative hearing was held on December 2, 2004, and December 13, 2004, at which time Curah and Caltrans presented evidence.
1. Littering on the Highway
Caltrans presented the following evidence: On July 8, 2004, John Steven Bennett (Bennett), a member of the public, was driving on Highway 168 near Shaver Lake. Because of a Caltrans project, Bennett stopped on the highway. While he was stopped, he saw Curah carrying a stack of papers. He then observed Curah crumble up a piece of paper and throw it into the wildflowers near the side of the road. Bennett attempted to talk to Curah at the scene, asking whether he had just littered. In response, Curah appeared to simply look over and laugh.
Bennett then watched Curah enter his state work truck, at which time Bennett wrote down the truck’s license plate number. Bennett authored a complaint to Caltrans.
Robert James (James), Curah’s supervisor, handled Bennett’s complaint. James confirmed that the license plate number that Bennett had supplied was the one on the truck assigned to Curah on that date.
James testified that Curah had been reprimanded for littering once before. Specifically, in 2002, James saw Curah toss some papers out of the window of his truck, at a construction site. James spoke to Curah, told him that they cannot litter, and went around and picked up the paper.
Curah’s evidence: Although he admitted that he was at the scene at the time the littering incident occurred, Curah denied littering. And, while he admitted to having “weigh master[s],” he claimed that he did not have any papers to litter. If he had littered, Caltrans would have noticed that the papers were missing, as they were necessary to complete the job.
He also challenged Bennett’s testimony by asserting that Bennett was not credible because he was only stopped for a short time in traffic, could not adequately describe the piece of paper that was tossed to the ground, and could not adequately describe Curah.
2. Urinating in Public
Caltrans’s allegation and evidence: Ronald Benton (Benton), a transportation engineering technician for Caltrans, testified that he was an inspector at a field construction site with Curah. On July 9, 2004, he witnessed Curah doing something near his vehicle that resembled urination. This incident took place approximately 10 feet from the roadway on which cars were passing and approximately 40 feet from where Benton was standing. Benton further testified that after he watched Curah walk away from his vehicle, Benton walked across the street to review the situation. Upon inspection, Benton viewed a wet spot near the vehicle, which he believed to be urine.
Notably, Curah had been subjected to a prior adverse action for urinating in public. As the administrative law judge in that action summarized: “On February 4, 2002, . . . [Curah] urinated on the ground while in view of the public and co-workers. [He] was standing approximately 30 meters from a portable toilet.”
Curah denied the public urination charge, making various claims. Curah contended that he used his vehicle’s door for screening. He also asserted that Caltrans failed to provide a bathroom facility for its employees “and that the decorum on the use of bathroom[s] is relaxed at construction sites.” He was unable to explain the wet spot next to his truck. He also represented that he would never urinate on a job site.
3. Intimidating and Discourteous Behavior
Caltrans’s evidence: One day in August 2004, Curah passed coworker Armie Salazar’s (Salazar) office. One of Salazar’s duties is to keep track of the mileage on Caltrans vehicles on a monthly basis. Consistent with that responsibility, Salazar asked Curah for the ending mileage balance for his truck for June 2004. Rather than give her the information, he told her to look it up herself on the computer. Curah and Salazar then approached their supervisor, James, who confirmed Curah’s obligation to provide Salazar with the mileage on his vehicle. Curah never submitted his mileage for June, forcing Salazar to submit an incomplete report.
Also, at some point on the same date, Curah complained to Salazar that his truck did not have an amber rotating safety light. Thus, she went to the storage room and picked up a temporary light to give to Curah. When Curah passed Salazar’s office a few minutes later, she attempted to hand him the light. However, Curah began yelling at Salazar, stating either that he did not have time to install the light on his vehicle or that it was not his job to install the light. Even after Salazar reassured Curah that it was a very simple installation procedure, he still became excited and animated and refused to accept the light. Salazar felt intimidated and began to raise her voice as well. Their discussion continued until another employee offered to show Curah how to install the light, and both men walked outside.
While Salazar apologized to Curah for raising her voice, he did not reciprocate.
Curah’s defense and evidence: Curah denied the charge, claiming that there was no evidence to support the allegation that he was discourteous. He also asserted that Salazar’s testimony alone did not support the allegation. Regarding Salazar’s request for mileage, Curah claimed that he never raised his voice, but merely told Salazar that the mileage information was on the computer and that she could look it up.
As for the incident regarding the amber light, Curah claimed that it occurred on a different day than the mileage incident. When Salazar handed him the light, Curah told her that he did not want to take it because he did not want to be liable if it broke, as he did not know how to install it. Another employee, Garnel Olibris, helped him install the light.
4. Speaking in a Loud and Threatening Manner
Caltrans’s case: As of August 2004, Curah had an open workers’ compensation case. Prior to August 23, 2004, Curah had a modified work agreement in place, which had expired. Although James would normally handle the implementation of a new modified work agreement, Randall Oleski (Oleski), Caltrans’s safety specialist, offered to act as a liaison between Curah and James, as the two were known to conflict. Curah agreed to this arrangement and, after giving Curah a few weeks to have Curah’s doctor clarify the necessary restrictions, Oleski arranged for a meeting, and had planned to have Curah sign another temporary modified work agreement until the doctor clarified the same necessary restrictions left out in the previous agreement.
On August 23, 2004, Oleski called Curah to his office to discuss Curah’s modified work assignment. Also present at the meeting was Carlos Lomeli, another Caltrans employee.
Oleski began the meeting by informing Curah that they were there to discuss a new modified work agreement. Curah became very upset and began speaking in a raised voice. Although Oleski attempted to explain the agreement and why it benefited Curah, Curah kept interrupting him and advising him that he was not going to sign the modified work agreement. Curah also accused James of colluding with the doctors and Caltrans and causing him stress.
At one point, Curah stood up over Oleski and began banging his finger on the desk, in front of Oleski. Even though Oleski remained calm, on more than one occasion, Curah leaned over the desk and pointed his finger within inches of Oleski’s face.
Oleski testified that at first he was comfortable with the interaction. However, after Curah began bringing Oleski personally into the situation, Oleski became uncomfortable and intimidated. Similarly, at some point during the conversation, Lomeli became uncomfortable and wanted to leave, but he did not want to leave Oleski alone in the situation.
Curah accused Oleski of “treating me badly because” of his race and stated “you . . . are doing this to me.”
Although the volume of Curah’s voice continued to rise, Oleski never raised his voice.
Following the confrontation, Curah refused to sign the modified work agreement and left Oleski’s office.
Both Oleski and Lomeli believed that Curah’s conduct violated Caltrans’s workplace violence policy.
Curah’s evidence: According to Curah, Oleski informed him that the doctor’s note that Curah had provided Oleski was ambiguous and did not specify when the work restriction would expire; Oleski instructed Curah to obtain another note specifying the problem. Meanwhile, Oleski was going to write up a new modified work assignment agreement. Curah informed Oleski that he would not sign a new agreement as Oleski was not a physician. When Oleski continued to ask Curah to sign the agreement, Curah got up and left.
Curah testified that he did not speak to Oleski in a loud or threatening manner. He denied telling Oleski that Caltrans and James were “out to get [him]” or that he was being mistreated because of the color of his skin. He also denied pointing his finger at Oleski or tapping his finger on the desk.
Curah did admit telling Oleski that the doctors were in collusion with Caltrans.
5. Exclusion of Mohammed Megag’s (Megag) Testimony
Curah called Megag, a friend and former coworker, to testify on his behalf. Megag, a Caltrans transportation engineer, testified that while Curah is a naturally loud talker, his voice is not offensive. He further stated that he did not have any problems with Curah at any work sites.
Megag was then prepared to opine “as to whether . . . Curah’s interpersonal relationships with his co-workers were troubled or were not of any significance,” even though he did not know anything about the specific incidents at issue. However, Caltrans objected to this line of testimony as irrelevant.
The administrative law judge sustained Caltrans’s relevance objection.
Administrative Law Judge’s Decision; Board’s Termination of Curah’s Employment
On April 25, 2005, the administrative law judge affirmed Caltrans’s decision to dismiss Curah. She found that Curah’s misconduct of littering, urinating on the ground in view of the public and coworkers, and speaking to Salazar and Oleski in a loud and/or intimidating manner constituted discourteous treatment in violation of Government Code section 19572, subdivision (m), and other failure of good behavior causing discredit to the appointing authority or the person’s employment, in violation of Government Code section 19572, subdivision (t). She also found that Curah’s misconduct of littering, urinating in public, and mistreatment of Oleski constituted inexcusable neglect of duty, in violation of Government Code section 19572, subdivision (d).
The administrative law judge found that Curah showed no remorse; his denial of any misconduct indicated that the likelihood of recurrence was great. Thus, she determined that the penalty of dismissal was proper and sustained it.
The Board adopted the administrative law judge’s decision.
Curah’s Petition for Writ of Administrative Mandamus; Motion for New Trial; Appeal
On July 7, 2005, Curah filed a petition for writ of administrative mandamus, pursuant to Code of Civil Procedure section 1094.5. He challenged the Board’s decision to sustain Caltrans’s dismissal of the petition on the following grounds: (1) The administrative law judge committed a prejudicial abuse of discretion when it refused to admit Megag’s testimony; and (2) the Board’s decision regarding Curah’s discourteous treatment and inexcusable neglect of duty was not supported by the findings.
On June 6, 2006, the trial court held a hearing on Curah’s petition for writ of administrative mandamus. After considering argument and the parties’ evidence, the trial court denied Curah’s petition, finding substantial evidence to support the charges leveled against him. Judgment was entered on August 15, 2006.
On September 19, 2006, Curah filed a motion for a new trial, arguing: (1) The trial court applied an improper standard of review; (2) the administrative law judge erroneously excluded Megag’s testimony; (3) Curah was exercising his First Amendment right to free speech; and (4) the reversal of any of the subject charges or factual incidents relied upon required remand of this case to the Board. The trial court denied Curah’s motion for a new trial.
This timely appeal ensued.
DISCUSSION
I. Standard of review
The applicable standard of judicial review in a mandamus proceeding depends on the right at issue. Where a fundamental vested right is involved, the trial court exercises its independent judgment. (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1173; Mardesich v. California Youthful Offender Parole Bd. (1999) 69 Cal.App.4th 1361, 1366–1367.) Under this standard of review, the trial court must independently weigh the evidence and must set aside the administrative decision where the agency’s findings are not supported “by the weight of the evidence.” (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 111; Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th at p. 1174; Code Civ. Proc., § 1094.5, subd. (c).) In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811–812.)
Where no fundamental vested right is involved, the substantial evidence standard applies. The trial court does not reweigh the evidence, but rather reviews the administrative record to determine if the decision is supported by substantial evidence. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584; Code Civ. Proc., § 1094.5, subd. (c).)
Regardless of what test was applied in the trial court, we review the administrative record to determine whether there is substantial evidence to support the judgment. (Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52–53.) “Substantial evidence has been defined as relevant evidence that a reasonable mind might accept as adequate support for a conclusion. [Citation.] A presumption exists that an administrative action was supported by substantial evidence. [Citation.]” (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340–1341.) 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. (Kazensky v. City of Merced, supra, 65 Cal.App.4th at pp. 52–53.)
II. Substantial evidence supports the trial court’s judgment
We easily conclude that the trial court’s judgment is supported by substantial evidence. Bennett’s testimony supports the littering charge; Benton’s testimony supports the public urination charge; Salazar’s testimony supports the intimidating and discourteous behavior charge; and Oleski and Lomeli’s respective testimony supports the charge that Curah spoke in a loud and threatening manner.
In challenging the trial court’s judgment, Curah does not dispute the foregoing. Instead, he argues that the trial court erred because it did not conduct the required complete substantial evidence analysis. In other words, Curah claims that the trial court failed to consider evidence that contradicted or otherwise detracted from the evidence that supported the charges leveled against him.
There is no evidence whatsoever that suggests the trial court did not engage in the proper review of the Board’s decision to terminate Curah’s employment. Rather, the trial court heard oral argument and reviewed the entire administrative record before determining that Caltrans properly decided to terminate Curah’s employment. It even identified the supporting evidence in its order denying Curah’s petition. While the trial court’s minute order may not specify each and every piece of evidence that it considered when it made its judgment, Curah directs us to no legal authority requiring the trial court to cite to contrary evidence and/or otherwise indicate how it reached its decision.
III. The administrative law judge properly excluded Megag’s testimony
Curah complains that the administrative proceeding was fundamentally unfair because the administrative law judge excluded Megag’s testimony. We are not convinced.
According to Curah, “Megag was going to testify about the personal relationships between and among the accusatory witnesses and [Curah].” (Bold & underlining omitted.) However, Megag had only worked with Curah and the witnesses until May 2003, an entire year before any of the incidents which were the basis of the administrative hearing occurred. Thus, the administrative law judge acted well within her discretion in excluding Megag’s proposed testimony.
Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, upon which Curah relies, is distinguishable. In that case, the appellate court struck down an administrative tribunal’s decision after the administrative law judge declined to hear evidence from the petitioner’s experts on the theory that they were not qualified. (Id. at p. 1137.) The Court of Appeal concluded that the administrative law judge’s wholesale exclusion of all of the petitioner’s experts “en masse” denied him “the opportunity to present his defense to the charge that his treatment fell below the standard of care,” a defense that necessitated expert testimony. (Id. at p. 1142.)
In contrast, Curah’s defense did not require Megag’s testimony. And, Curah was able to challenge Caltrans’s evidence, as he did through his testimony. Under these circumstances, we cannot adopt Curah’s theory that he was denied a fair hearing before the administrative law judge.
IV. All charges are affirmed
Curah argues that Caltrans’s decision to terminate his employment was based upon several factual incidents; if any one of those findings fails, then the entire matter must be remanded to the Board. As set forth above, each of the charges against Curah is supported by substantial evidence. Because none is reversed, we need not address Curah’s claim that remand is proper.
V. Curah was not disciplined for properly exercising his First Amendment right to free speech
Finally, Curah asserts that his employment could not have been terminated in response to his complaint about being the victim of racial discrimination and about being mistreated as an injured worker. Curah’s employment was not terminated because he complained about racial discrimination or about mistreatment. Rather, as set forth above, Curah’s employment was terminated because he littered, urinated in public, and intimidated his coworkers.
DISPOSITION
The judgment of the trial court is affirmed. Caltrans is entitled to costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.