Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS106392, Dzintra Janavs, Judge.
Paul E. Harris, III and York Chang for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Michael E. Whitaker and Bruce Reynolds, Deputy Attorneys General, for Defendants and Respondents.
EPSTEIN, P.J.
Daren Floyd appeals from the denial of his petition for writ of administrative mandate challenging his dismissal from the Department of Motor Vehicles (DMV). We affirm based on substantial evidence which supports the findings of misconduct. The State Personnel Board did not abuse its discretion in sustaining appellant’s dismissal.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was employed by the DMV as motor vehicle field representative for 13 years and 10 months. He had a history of prior discipline, including a three-day suspension in 1994 for insubordination, disobedience, and discourtesy; and a 10-day suspension in 1998 for inefficiency, inexcusable neglect, insubordination, discourtesy, and disobedience arising from an exhibition of intimidating and unprofessional behavior toward coworkers, management, and the public.
On December 8, 2004, appellant received a notice of adverse action under Government Code section 19574 informing him that he was dismissed effective December 20, 2004. The DMV stated five grounds for appellant’s dismissal, which allegedly constituted violations of section 19572, subdivisions (d), (e), (m), (o), and (t). Appellant appealed the dismissal to the State Personnel Board (SPB).
Statutory references are to the Government Code unless otherwise indicated.
Taking his lunch break 11 minutes late; being rude and discourteous to a customer (following her out of the building and touching her shoulder); the November 8, 2004 incident involving DMV manager Kathy Myles; November 9, 2004 threat to Myles; and November 10 threatening behavior.
The administrative law judge for the SPB conducted the hearing, one day of which was held at the Inglewood field office of the DMV where appellant had been employed. On February 24, 2006, he issued a proposed decision in which he sustained appellant’s dismissal. He did so based on findings that appellant had repeatedly hit his fist against his hand while complaining to manager Kathy Myles that she had disrespected him by not moving out of his way after a meeting; and that on the next day, appellant shouted at manager Barbara Rogers while asking if she was watching everyone who was late. The hearing officer found that appellant intimidated Rogers when he answered “‘Yes’” to her question whether he was threatening her. It was found that this incident occurred after “appellant had been directed to refrain from using ‘any language that can be perceived as demeaning, threatening, or confrontational.’” Each of the remaining three grounds for dismissal was either dismissed or found not to be an appropriate basis for dismissal.
In light of appellant’s history of discipline and recent management efforts to curtail such misconduct, the administrative law judge concluded that a recurrence of this behavior was very likely if appellant remained with the DMV. He recommended that the dismissal be sustained. The SPB sustained Floyd’s dismissal and adopted the findings of fact, determination of issues, and proposed decision by the administrative law judge as its decision. Appellant’s petition for rehearing was denied.
Appellant’s second amended petition for writ of administrative mandate, challenging the sufficiency of the evidence supporting the order sustaining dismissal, is the charging pleading. (Code Civ. Proc., § 1094.5.) He also filed a motion in support of a writ of mandamus. Respondents filed a return to the petition and appellant replied. The petition was denied and appellant filed a timely appeal from the resulting judgment.
DISCUSSION
I
An employee may seek judicial review of an adverse employment decision by the SPB by petition for a writ of administrative mandamus filed in the superior court. (Code Civ. Proc., § 1094.5; State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th 512, 522.) “Because the State Personnel Board derives its adjudicatory authority from the state Constitution rather than from a legislative enactment, a superior court considering a petition for administrative mandate must defer to the board’s factual findings if they are supported by substantial evidence. (Skelly [v. State Personnel Bd. (1975)] 15 Cal.3d [194,] 217, fn. 31.)” (Ibid.)
Where an administrative personnel decision is challenged by a petition under Code of Civil Procedure section 1094.5, “[t]he trial court was required to determine ‘whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’ (Code Civ. Proc., § 1094.5, subd. (b).) The trial court was required to utilize the substantial evidence test in reviewing the agency’s decision. (County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 633.) On appeal from the decision of the trial court, this court also reviews the administrative decision, not the superior court’s decision, by the same standard, i.e., the substantial evidence test. (Ibid.)” (Valenzuela v. State Personnel Bd. (2007) 153 Cal.App.4th 1179, 1184.) “Under Code of Civil Procedure section 1094.5, subdivision (c), ‘abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.’ In evaluating the legal sufficiency of the evidence, the following basic approach is required: ‘First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial.” (Id. at pp. 1184-1185.) We have reviewed the entire administrative record. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 585-586.)
II
The administrative law judge concluded that appellant’s dismissal was proper, based on incidents that occurred on consecutive days. He found it undisputed that on November 9, 2004, appellant attended a meeting which Sheila Woods and Kathy Myles also attended, at the Inglewood DMV field office. During the meeting, Myles stood by the door. As appellant attempted to leave the room, Myles was positioned so that she blocked his exit from the room. She did not immediately move out of his way. Later, appellant complained about Myles to her supervisor, Pat Olson. Olson met with appellant and Myles together, then individually. Myles apologized to appellant.
Olson wrote a report about the incident. The report was an exhibit at the hearing. In it she said that appellant had asked to speak with her, and was upset. “Kathy [Myles] also came over to the desk. He was upset with her and was hitting his fist in his hand as he talked to her about being disrespectful to him. She was trying to explain, however, he wasn’t listening.” Olson reported both appellant’s and Myles’s accounts of what occurred when appellant attempted to leave the meeting and found his exit blocked by Myles.
The formal notification of disciplinary charges alleged appellant failed to conduct himself in a professional manner and created a hostile work environment. It was alleged that he “approached Ms. Myles, pounded your fist in your open hand, and you accused Ms. Myles of holding you in a room against your will. Your physical gesture made Ms. Myles feel as though you were threatening her.”
The administrative law judge summarized testimony given by appellant and by Myles, and the report prepared by Olson. He credited Olson’s account as accurate, and found “[t]o the extent that there is a variance between appellant’s and Myles’ testimony, and what they told Olson, it is concluded that what they told Olson is more reliable.” The administrative law judge credited Myles’s testimony that appellant hit his hand with his fist while speaking to her, and that she found this behavior “a little threatening.”
The administrative law judge did not believe Myles’s testimony that appellant approached her. “Rather, it is believed (as Olson reported) that Myles approached Olson and appellant while the latter was complaining to Olson about Myles.” The administrative law judge did not believe appellant’s denial of an intent to threaten, finding “he either knew or should have known that such conduct could be perceived by others to be threatening.”
Appellant argues the administrative law judge’s finding that he did not approach Myles is inconsistent with the finding that he threatened Myles. He cites Myles’s testimony at the hearing that appellant was hitting his fist in his hand while talking with her and Olson. Myles was asked whether she felt this was a threatening gesture. She testified: “I did, at the time I felt it was a threatening gesture because, you know, the way he came up to me.”
Based on the administrative law judge’s finding that Myles approached appellant and Olson, instead of appellant approaching Myles and Olson, appellant argues “[t]his conclusion by the ALJ should have served to discredit Myles, since ‘the way that [Floyd] came up to her’ was the only stated basis for Myles feeling that the gesture was threatening. If Floyd never approached her, there is no substantial evidence of a factual, credible basis for why Myles felt the gesture was threatening.” Appellant argues that Myles’s subjective testimony that she felt threatened is unreliable because the administrative law judge did not believe her statement that appellant approached her.
Respondents cite Myles’s testimony at the hearing that appellant was very upset and was hitting his fist in his palm during the conversation the two of them had with Olson; that she felt a little afraid; and felt it was a threatening gesture. This testimony was corroborated by Olson’s contemporaneous memorandum which describes appellant as hitting his fist into his hand while talking with Myles about being disrespectful to him.
We conclude that there is substantial evidence to support the finding that appellant hit his fist into his hand while he was upset and was talking to Myles about what he believed to have been her disrespectful treatment of him.
III
Appellant raises three challenges to the sufficiency of the evidence to support the other basis for his discharge: the charges stemming from the November 10, 2004 incident. That charge arose from a confrontation between appellant and Barbara Rogers, administrative manager for the Inglewood field office of the DMV. The DMV alleged that appellant “rushed over” to Rogers, “leaned over her desk, repeatedly pounded your fist into your hand just inches away from Ms. Rogers’s face, and asked Ms. Rogers repeatedly in a loud and angry voice ‘Are you watching everyone who’s late?’ or words to that effect.” After Rogers responded, it was alleged that appellant “lunged even closer to Ms. Rogers, still pounding your fist into your hand, and stated in a loud and angry voice ‘I am sick of you’ or words to that effect. Ms. Rogers then asked you if you were threatening her, and you replied, ‘Yes.’” Tan Riley, a manager, then pulled appellant away, but he resisted. Rogers felt so threatened she called the California Highway Patrol.
The administrative law judge found the basic facts regarding the November 10, 2004 incident undisputed. Tan Riley was Rogers’s subordinate and appellant’s direct supervisor. Rogers sat at a desk in a cubical that has an adjacent countertop that is four feet tall. Appellant was three to five minutes late in arriving at work that day. He signed in on a sign-in sheet adjacent to Rogers’s cubical, and walked away toward his assigned customer window. As he was walking away, Rogers asked Riley to check the sign-in sheet and see what time appellant had signed in. “Upon overhearing Rogers, appellant said something in response, with a voice that was ‘elevated.’ Riley grabbed his arm and pulled him away from Rogers.” Rogers called the California Highway Patrol and “reported that an employee was threatening her by pounding his fist in his hand.” Highway Patrol officers came to the office and interviewed employees, including appellant, but apparently did not write a report. Appellant was not arrested or asked to leave. After this incident, he was placed on administrative leave and subsequently was dismissed.
The testimony of witnesses Rogers, Myles and James Wilkinson (an employee in the Inglewood office) was summarized by the administrative law judge. Riley did not testify, but her memorandum about the incident was admitted as an exhibit. According to Riley’s contemporaneous memorandum, when Rogers asked Riley what time appellant signed in, “Darren then turn [sic] around came back and start shouting [‘]Do you check everyone’s time.’ He said it over & over again. I pulled him by the arm. He pulled away. I pulled him again without letting him pull away. I told him to go to his workstation. I don’t think he threaten [sic] Barbara, but I know he scared the hell out of her.”
The administrative law judge concluded there was no evidence to support the allegation that appellant “‘rushed’” over to Rogers’s desk or cubical, or that he “‘lunged’” closer to Rogers during the incident. He credited the testimony of Rogers and Myles that appellant screamed or yelled, as consistent with Myles’s prior statement, Riley’s memorandum, and the testimony of James Wilkinson. The administrative law judge did not believe appellant’s testimony to the contrary. He concluded “that appellant ‘yelled’ or ‘shouted’ at Rogers: ‘You have her watching everybody’s time sheets?’ ‘[Do] you watch (or check) everybody’s time?’; and either ‘I’m sick and tired of this’ or “I’m sick and tired of you.’”
During the second day of the hearing, at the Inglewood DMV office, the administrative law judge viewed Rogers’s cubicle and adjacent countertop, taking evidence regarding its appearance at the time of the November 10, 2004 incident. This was relevant to appellant’s testimony that he physically could not have leaned over Rogers during the incident because of the height of the countertop and objects on top of it.
Myles’s testimony that appellant was hitting the countertop at Rogers’s cubical and yelling, “‘You need to leave me alone’” was not believed by the administrative law judge because Myles did not mention these things in her prior statement and no other witness corroborated this testimony. The administrative law judge also disbelieved Rogers’s testimony that appellant repeatedly hit his fist into his palm with his fist close to her face. He did so based on Wilkinson’s credible testimony that he did not see appellant pound on Rogers’s desk “or anywhere else.” No other witness corroborated this testimony by Rogers. The administrative law judge found substantial discrepancies in Rogers’s and Myles’s accounts of appellant’s physical conduct during the incident.
The administrative law judge believed Myles’s testimony that appellant initially resisted Riley’s effort to pull him away from Rogers, finding it consistent with Riley’s memorandum and appellant’s testimony that he told Riley to “‘Hold on.’” He also credited Rogers’s testimony that she called the Highway Patrol because she felt threatened by what appellant said, concluding it was consistent with Wilkinson’s testimony and Riley’s memorandum. Based on appellant’s history of prior discipline for intimidating behavior toward coworkers, management and the public, his testimony that he never meant to threaten anyone was not believed by the administrative law judge.
Appellant argues, first, that the administrative law judge misquoted the testimony of witnesses James Wilkinson and Kathy Myles, and improperly characterized them as corroborating Rogers’s testimony that appellant answered “Yes” when she asked if he was threatening her.
A report of the November 10 incident prepared by Myles was received as an exhibit at the hearing. In that report, Myles said she heard appellant yelling very loudly at Rogers’s desk. She said: “I heard Barbara ask Daren ‘Are you threatening me?’ Unfortunately I did not hear his response.” At the hearing, when asked whether she heard Rogers ask appellant if he was threatening her, Myles testified: “You know what, that part there, that’s the part that I just didn’t hear. I can’t say that I heard her say, she may have asked him that and I’m not really clear but I didn’t hear his response, if he said yes or no.”
Wilkinson testified that he was at Rogers’s desk with Riley when Rogers asked Riley to check the sign-in sheet. He said appellant came over and asked whether Rogers had Riley checking every employee’s time. He described an argument between Rogers and appellant over the timesheet. As appellant was walking toward his station, he heard Rogers say, “[Y]ou’re threatening me.” Wilkinson said he wondered what Rogers was talking about because no threat was being made. According to Wilkinson, Rogers did not ask a question, but made the statement that appellant was threatening her. When asked whether Rogers appeared intimidated, Wilkinson testified: “I would think so. She was, you know, like I said, she was calling the police. I can only assume that would be the reason that she, you know, would say that.” He testified that in his opinion, Rogers overreacted and appellant was out of line.
Respondents point to evidence from Wilkinson, Riley and Myles that appellant was yelling at Rogers; that Riley had to pull appellant away, but he resisted (Myles, Tan); and that Rogers called the Highway Patrol in response to the incident.
Appellant consistently denied that Rogers asked whether he was threatening her, and that he said, “Yes.” He also denied pounding his fist, but said that Riley did grab his arm to pull him away. When shown Riley’s memorandum of the incident, appellant testified: “[I] would concur with this statement with few exceptions. Ms. Rogers is her boss. Whether or not the Judge reinstate me or not, she’s got to deal with Ms. Rogers after this. So I feel that there’s a lot of truth in this but I feel that there’s adjectives describing things to protect herself, to cover herself because she’s still got to deal with Ms. Rogers. Like I said, I would almost concur with it with a few exceptions, with a few adjectives describing what occurred.” He explained that contrary to Riley’s account, he was not shouting, and may have asked twice whether Rogers was having her check everyone’s time. He admitted: “I would say my voice may have been somewhat elevated than normal but I was not shouting.”
The administrative law judge found the evidence supported the allegations regarding appellant’s verbal statements to Rogers on November 10, but found the evidence did not support the allegations regarding appellant’s physical conduct that day. Appellant’s loud and angry verbal confrontation with Rogers, coupled with his history of discipline and escalating confrontations with management constituted substantial evidence warranting his dismissal.
In addition to adverse actions against appellant in 1994 and 1998, he signed statements of incompatible activities in February 1991 and July 1998 acknowledging rude and discourteous treatment that was grounds for discipline.
Appellant also argues the administrative law judge failed to make findings regarding Rogers’s credibility as required by section 11425.50, which is part of the Administrative Adjudication Bill of Rights of the Administrative Procedure Act. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at p. 589.) Respondents assert that SPB hearings are governed by section 19582 rather than the statute cited by appellant.
In California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th 575, the Court of Appeal held that section 11425.50 applies to credibility determinations by an administrative law judge in SPB administrative adjudications of employee disciplinary actions. (California Youth Authority, supra, at pp. 588, 590-592.) We note that in that case, the SPB conceded that it is subject to section 11425.50, although its position in this case is to the contrary. (Id. at p. 591.) Respondents do not cite or discuss California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th 575 in their briefing of this appeal.
Section 11425.50, subdivision (b), requires in part: “If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.”
Appellant argues the administrative law judge was required to make express findings as to why he found Rogers’s testimony that appellant said he was threatening her credible. As we have seen, the administrative law judge explained why he found this testimony by Rogers credible despite the absence of corroborating testimony from other witnesses. He concluded: “Rogers’ testimony that she asked appellant if he were threatening her was corroborated by Wilkinson, as well as by Myles’ prior statement. It is believed that Rogers asked appellant if he were threatening her. [¶] Although no other witness testified to overhearing appellant answer Rogers’ question, Roger’s [sic] testimony that appellant responded in the affirmative is believed. This is because appellant testified that he perceives ‘management’ as being ‘threatened’ whenever an employee defends himself and that he was ‘defending himself’ against Rogers. It is believed that appellant responded to Rogers in the affirmative using this reasoning. Moreover, Rogers credibly testified that she called CHP because of appellant’s affirmative response to her question and not because of anything he did.”
The administrative law judge thus credited this aspect of Rogers’s testimony based on other evidence rather than on her demeanor. Under such circumstances, the court in California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at page 596 found section 11425.50 inapplicable: “Here, the ALJ merely stated in his decision that he believed or disbelieved certain witnesses; he did not identify any ‘observed demeanor, manner, or attitude’ of the witnesses.... Thus, the ALJ based this credibility determination on inferences unrelated to witness demeanor, manner or attitude.” Similarly, as we have seen, the administrative law judge here did not base his credibility determination regarding Rogers’s testimony on her demeanor, manner, or attitude. We find that section 11425.50 does not apply.
Appellant cites the administrative law judge’s finding that “Mr. Floyd himself testified that he perceives ‘management’ as being ‘threatened’ whenever an employee defends himself and that he was ‘defending himself’ against Rogers.” He contends there is no such admission in the record regarding the events of November 10, 2004. We have reviewed the transcript of the hearing and agree with appellant that there is only one reference to defending himself. Appellant was asked what Riley meant when she wrote that while she did not think appellant had threatened Rogers, she knew he had “scared the hell out of her.” Appellant answered: “Like I said, whether or not this Judge reinstate me or don’t reinstate me, Ms. Riley still, Ms. Rogers is her boss. She still got to deal with her. And, you know, like I said I think it’s clear that she knew I didn’t threaten Barbara but, you know, she still got to deal with her. And this is her way of saying, hey, I’m not going to lie on this man, you know, I was there, he didn’t threaten you. But if you want me to put that he scared the hell out of you, hey. Me being here defending myself could scare the hell out of some people, you know....” (Italics added.)
We infer that this is the testimony to which the administrative law judge referred. The statement was made in discussing Riley’s account of the confrontation between Rogers and appellant. It was reasonable for the administrative law judge to infer that appellant’s reference to “some people” was to management in this context. We conclude the administrative law judge’s characterization of appellant’s testimony was reasonable based on this record. In addition, the administrative law judge also relied on the fact that Rogers took the step of reporting the incident to the California Highway Patrol based on what appellant said to her.
We find substantial evidence to support the SPB order sustaining the charges against appellant based on the incidents on November 9 and 10, 2004.
IV
Appellant argues the SPB abused its discretion by failing to provide evidence to support what he characterizes as an excessive penalty. He emphasizes the requirement under Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 218, that the overriding consideration in employee discipline cases is the extent to which the employee’s conduct resulted in, or is likely to result in harm to the public. Appellant argues the administrative law judge made no findings regarding the extent to which his conduct would cause harm, how it affected relationships between coworkers, or their ability to provide public services. The administrative law judge found: “The good order and discipline of public service is harmed when a subordinate verbally and physically attempts to intimidate his or her supervisors.” Appellant contends the administrative law judge’s statement was too conclusory.
Appellant also cites the administrative law judge’s reference to “recent management efforts to curtail such misconduct” in finding a high likelihood of recurrence. He construes this reference as pertaining to management efforts to curtail threatening or discourteous misconduct on his part, and claims there is no evidence to support such a finding. We disagree with appellant’s characterization of the statement. Rather, we construe it as a reference to evidence presented at the hearing that the DMV had adopted a zero tolerance policy toward violence in the workplace and had conducted annual training for employees on the subject, accompanied by training materials appellant received.
“‘[A]n appellate court is no more free than a trial court to substitute its discretion for that of the administrative agency as to the degree of punishment imposed.’” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 832, quoting Caveness v. State Personnel Bd. (1980) 113 Cal.App.3d 617, 631.) “This is particularly true in those circumstances where reasonable minds may differ. Thus, as we noted in Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 423, 427, ‘[a]n appellate court may not substitute its judgment for that of the Board, even if another equally reasonable determination might have been made.’ Indeed, ‘[t]he fact that reasonable minds may differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within the area of its discretion.’ (Flowers v. State Personnel Bd. [(1985)] 174 Cal.App.3d [753,] 761.)” (Department of Parks & Recreation, supra, 233 Cal.App.3d at p. 832.)
Based on appellant’s misconduct in the charged incidents, coupled with his disciplinary history, we find no abuse of discretion in the order sustaining his dismissal.
DISPOSITION
The judgment is affirmed.
We concur:, MANELLA, J., SUZUKAWA, J.