Opinion
B228887
11-08-2011
LORNA LOWE, Plaintiff and Appellant, v. CITY OF LOS ANGELES POLICE COMMISSIONERS, et al., Defendants and Respondents.
Lorna Lowe, in pro per; Nana Gyamfi, for Appellant. Carmen A. Trutanich, City Attorney, ZNA Portlock Houston, Assistant City Attorney and Jennifer Handzlik, Deputy City Attorney, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS121319)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert H. O'Brien, Judge. Affirmed.
Lorna Lowe, in pro per; Nana Gyamfi, for Appellant.
Carmen A. Trutanich, City Attorney, ZNA Portlock Houston, Assistant City Attorney and Jennifer Handzlik, Deputy City Attorney, for Respondent.
Plaintiff and appellant Lorna Lowe, a civilian employee of the Los Angeles Police Department (the Department), was discharged for "unbecoming conduct." She appeals from the judgment denying her petition for a writ of mandate following the decision of the Board of Civil Service Commissioners of the City of Los Angeles (the Board) upholding her discharge. As we understand her contentions, they are: (1) the Board was without jurisdiction; (2) the charge of unbecoming conduct is unconstitutionally vague on its face and as applied to appellant's specific conduct; (3) the finding that she engaged in unbecoming conduct is not supported by substantial evidence; and (4) the discharge was an excessive penalty to impose under the circumstances. We affirm.
FACTUAL AND PROCEEDURAL BACKGROUND
At the conclusion of the hearing on the writ petition, the trial court ordered the Administrative Record returned to the city attorney and "retained in the same manner pending any further proceedings in this matter." Appellant designated the "Administrative Record (4 volumes) lodged 8/17/10" to be included in the Clerk's Transcript. The Clerk's Transcript includes the Notice of Lodging of the Administrative Record in the superior court, but not the record itself. Although neither appellant nor the city attorney caused the Administrative Record to be lodged in this court, both cite to it in their briefs. We ordered the appellate record corrected to include the Administrative Record, a copy of which was lodged by counsel for the Department. (Cal. Rules of Court, rule 8.155(c)(a).)
Appellant began working for the Department in March 1985. A year later she became a Police Service Representative (PSR). The job description for a PSR includes the ability to "deal tactfully and effectively with the public, other employees and supervisors; . . ."
From 1991 until 2002, appellant received multiple suspensions for "unbecoming conduct;" she also received several commendations during the same period. In July 2002, she was promoted to PSR II. In March 2004, appellant transferred to the Southeast Investigative Division (Southeast) where she was supervised by Detective II John Crotty, Detective II John Simmons, Detective III Mike Hanson and Detective II Nickerson. Soon after arriving at Southeast, appellant refused to perform some of her assigned duties. Crotty documented a counseling session with appellant in which Crotty gave appellant a written copy of the PSR Class Specifications and discussed with her the performance expectations for her position.
In November 2005, clerk-typist Y. Witherspoon complained to Detective Simmons that appellant was condescending towards Witherspoon and interfered with Witherspoon's work. Simmons tried to discuss the matter with appellant but appellant refused to talk to Simmons unless Hanson was present. On December 13, 2005, Simmons received another complaint about appellant, this time from Student Worker Yvette Peraza who was crying when she told Simmons that appellant raised her voice to Peraza and refused to help her. Appellant rebuffed Simmons's efforts to discuss the matter with her unless Detective Hanson was also present. When Simmons and Hanson jointly tried to discuss the matter with appellant, she refused to recognize either as her supervisor, crossed her arms and turned her back on them. Over the next two days, Simmons observed appellant sitting at her desk and allowing the telephone to ring unanswered while other employees were assisting citizens at the front desk. On December 15, 2005, PSR Natalie Jackson complained to Simmons that appellant confronted her and refused to help her with her front desk duties. In January 2006, a citizen complained to Hanson that she observed appellant not helping and speaking condescendingly to Peraza (the Student Worker) at the front desk. The next day, appellant was issued a Notice to Correct Deficiencies for unbecoming conduct and neglect of duty arising from the separate incidents involving Peraza and the two incidents involving Witherspoon and Jackson. The notice cautioned that "[a]ny further negative work performance on your part will subject you to progress[ive] discipline which can include the initiation of a Personnel Complaint."
In March 2006 a position was created for appellant at the property crimes table, following up on stolen cars. The position was created so that appellant would have the least amount of interaction with supervisors, co-workers, and the public. In a June 2006 annual performance review, appellant was rated "unsatisfactory." From August 1 through October 31, 2006, appellant was placed on injured duty status as a result of a stress claim. Appellant returned to work at the property crimes table on October 31, 2006. According to a June 2007 evaluation, appellant had adapted to the specially created assignment and her interactions with co-workers and supervisors had improved; she was rated "competent." 1. The First Complaint (CF No. 07-000696 )
In late 2006, Student Worker Peraza rotated to a new division. She complained to her new supervisor, Detective Karen Zuniga, that while she was at Southeast, appellant ridiculed and demeaned her, and refused to work collaboratively with her. On February
1, 2007, Zuniga completed Complaint Form No. 07-000696, which alleged that, between October 2005 and October 2006, "[appellant] created an unprofessional and hostile work environment when she repeatedly ridiculed and harassed [Peraza]" (the First Complaint), and referred it for disciplinary action. The Internal Affairs investigation that followed included interviews and reviews of the formal "comment cards" that Simmons filed after each of the incidents described earlier, the Notice to Correct Deficiencies and appellant's 2006 performance evaluation.
In a letter dated December 24, 2007, Internal Affairs investigators summarized their findings on the following five allegations of misconduct, all occurring between October 2005 and October 2006: (1) unbecoming conduct while on duty; (2) neglect of duty; (3) improper remarks to Peraza; (4) insubordination; and (5) false statements to a supervisor. 2. The Second Complaint (CF No. 07-006303 )
On November 28, 2007, before Internal Affairs had communicated its findings on the First Complaint to appellant's supervisors, appellant had a loud argument about vacation schedules with PSR Gloria Unterburger, who was at her duty station in the watch commander's office at the time; the incident was witnessed by several people including Sergeant Anthony Oddo. On December 5, 2007, at the direction of Captain Phillip Tingirides, Oddo completed Complaint Form No. 0700603 (the Second Complaint) regarding the incident with Unterburger.
Unterburger's name is spelled throughout the record variously as "Unterburger" and "Unterberger." In this opinion, we use the former.
Investigators summarized their findings on the Second Complaint in a letter dated December 28, 2007, and recommended that the following allegation be sustained: "On November 28, 2007, [appellant], while on duty, engaged in UNBECOMING CONDUCT, when she yelled at [Unterburger] while inside the watch commander's office."
3. Adjudication
Captain Phillip Tingirides received the First Complaint for adjudication on July 9, 2007, and the Second Complaint six months later, on January 18, 2008. Tingirides recommended that all five allegations of the First Complaint and the single allegation of the Second Complaint be sustained and that discharge be the penalty on both Complaints. Tingirides's recommendations were reviewed by another officer in the chain of command before the matter was presented to Chief of Police William Bratton, the "ultimate decision maker."
On January 28, 2008, Tingirides served appellant with Notice of Proposed Disciplinary Action on the First and Second Complaints, the supporting investigative materials and the discharge recommendations as to each. Appellant was placed on administrative leave that day. She submitted separate written responses to the First and Second Complaints.
Section 1016(a) of the Los Angeles City Charter provides that no person in the classified civil service "shall be discharged or suspended except for cause, which shall be stated in writing by the board or officer having power to make such discharge . . . ." The written Complaint must be served on the person and filed with the Board of Civil Service Commissioners. Discharge takes effect upon filing of the written Complaint with the Board of Civil Service Commissioners. (§ 1016(b).) Within five days of service of the written statement upon the discharged person, he or she may file a written application for a hearing to investigate the grounds for the discharge. (§ 1016(c).) If the application is denied, the person has 90 days within which to file a written claim for reinstatement. (§ 1017.)
Tingirides testified that he reviewed appellant's response to both complaints and submitted his recommendation to both at the same time. But in a letter to the Chief of Police dated March 21, 2008, Tingirides stated that he had reviewed appellant's response to the Second Complaint and found nothing in it to warrant a change in the discharge recommendation; the letter did not mention the five count First Complaint.
At the hearing before the Board of Commissioners, the Department had no explanation for how the First and Second Complaint became separated such that appellant was discharged based on only the Second Complaint.
4. Notice of Discharge
On April 22, 2008, appellant came to the station with her attorney, Nana Gyamfi. At that time, Tingirides personally served appellant with Notice of Discharge effective April 23, 2008, based on the single count of the Second Complaint (the April 22nd Notice of Discharge). Tingirides testified that the First and Second Complaints had somehow become separated and the allegations of the First Complaint were inadvertently omitted from the April 22nd Notice of Discharge. But when Gyamfi asked Tingirides whether there were any allegations other than the ones reflected in the April 22nd Notice of Discharge, Tingirides said that there were not. The next day, appellant filed an appeal of the April 22nd Notice of Discharge.
After appellant filed her appeal, the five-count First Complaint resurfaced. So that all six charges could be presented together, the Department purported to "rescind" the April 22nd Notice of Discharge and then consolidate the five counts of the First Complaint with the single count of the Second Complaint to form one combined complaint (the Combined Complaint). Count one of the Combined Complaint was the single count from the Second Complaint which formed the basis of the April 22nd Notice of Discharge and counts two through six were the five counts from the First Complaint. On May 5, 2008, the penalty recommendation on the six count Combined Complaint was accepted by the Chief's office.
On May 8, 2008, the Board granted appellant's application for an administrative hearing on the April 22nd Notice of Discharge. When attorney Gyamfi called the Department the next day to discuss details of the hearing, she was informed that the Department was planning to rescind the April 22nd Notice of Discharge and serve appellant with a new notice based on the Combined Complaint. In a letter dated May 12, 2008, Gyamfi objected to that procedure.
Notwithstanding appellant's objections, on May 13, 2008, the Department served appellant by mail with a Notice of Discharge effective that day (the May 13th Notice of Discharge) based on all six counts of the Combined Complaint. In a letter to appellant dated that day, Chief Bratton informed appellant that both the First and Second Complaints had been adjudicated and the Chief had directed that the penalty be discharge.
In a letter dated June 24, 2008, the Board of Civil Service Commissioners informed appellant that on June 12, 2008, the Board took "action to make a matter of record the Department's rescission of the [April 22nd Notice of Discharge]. [¶] There is nothing further before the Board at this time, and you are hereby notified accordingly."
5. The Administrative Hearing
Appellant did not file an appeal from the May 13th Notice of Discharge, but her appeal from the April 22nd Notice of Discharge was treated as an appeal from the six counts of the May 13th Notice. Following nine days of administrative hearings in August, September, October, November and December 2008, the Hearing Examiner filed a written report dated January 19, 2009. She concluded that there was substantial evidence to support discharge based on the Unterburger incident (the basis of the April 22nd Notice of Discharge and count one of the May 13th Notice of Discharge). She further concluded that, under section 1016 of the City Charter, the Board did not have jurisdiction of counts two through six of the May 13th Notice of Discharge because appellant had already been discharged for the Unterburger incident when the Department purported to discharge her again based on those allegations. Accordingly, the Hearing Examiner made no findings and took no action with respect to counts two through six.
Appellant appealed the Hearing Examiner's conclusions to the Board of Civil Service Commissioners. At a Board meeting on March 26, 2009, the Board's legal counsel explained that the Department could amend a Notice of Discharge but could not rescind it because if it was rescinded, the employee would be reinstated and "the whole discipline process [would have to] happen again." The Department took the position that the May 13th Notice of Discharge was simply an amendment of the earlier notice.Appellant argued that the April 22nd Notice of Discharge was the operative pleading and that the Board had jurisdiction only of the Unterburger incident which was the grounds for discharge under that notice. Because jurisdiction was undisputed on the Unterburger incident (count one of the May 13th Notice of Discharge and the only count alleged in April 22nd Notice of Discharge), the Board considered only that incident. The Board sustained the finding that appellant engaged in unbecoming conduct when she yelled at Unterburger; it also sustained the penalty determination.
This was in direct contradiction to the position taken by the Department at the first administrative hearing date. At that time, the Department's representative argued that the Department "rescinded and the Department re-served and that was on the advice of the city attorney. And the reason why, like I said, it was never amended is because if you amend it, you can't reamend [sic] something of a person that is no longer an employee, so that's why the Department rescinded and re-served instead of either just amending or adding another discharge."
6. Petition for Writ of Mandate
Appellant filed a Petition for Writ of Mandate in the superior court. As amended, the petition was based on three grounds: (1) because the April 22nd Notice of Discharge was rescinded, the Board had no jurisdiction to consider either that notice or the May 13th Notice of Discharge; (2) even assuming jurisdiction, there was insufficient evidence to support the April 22nd Notice of Discharge; and (3) the charge of "inappropriate yelling" was unconstitutionally vague. In opposition to the petition, the Board argued that once the Board granted appellant's application for hearing on the April 22nd Discharge, the Department had no authority to rescind it. Thus, the purported rescission by the Department that occurred after the Board granted appellant's application was without any effect and the Board properly considered only the allegation underlying the April 22nd Notice of Discharge.
Following a hearing on August 31, 2010, the superior court denied the petition. In a written minute order it found the charge of "unbecoming conduct" self explanatory; the "weight of the evidence" supported the Board's findings; appellant did not demonstrate that the witnesses lied; appellant had a "lengthy history of inappropriate behavior" and the penalty was not too severe. Appellant filed a timely notice of appeal from the judgment filed on September 12, 2010.
DISCUSSION
A. Standard of Review
Appellant's writ petition in the trial court was governed by Code of Civil Procedure section 1094.5, pursuant to which the trial court was limited to determination of "whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and 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).)
Upon a challenge to an administrative decision that affects the appellant's fundamental vested right in his or her employment, the trial court reviews the administrative record and exercises its independent judgment in rendering judgment on the petition. (Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1130 (Davis)[agency decision impacting employee's fundamental vested right in his or her job requires exercise of trial court's independent review].) Where the trial court is authorized to exercise its independent judgment, "abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c).) The independent judgment test requires the trial court to not only examine the administrative record for errors of law, but also exercise its independent judgment upon the evidence in a limited trial de novo. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby).) The trial court may draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868 (Morrison).) But the trial court must afford a strong presumption of correctness to the administrative findings and require the challenging party to demonstrate that such findings were contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
On appeal, our task is to review the record and determine whether the trial court's findings (not the administrative agency's findings) are supported by substantial evidence. (Bixby, supra, 4 Cal.3d at p. 143, fn. 10; accord, Davis, supra, 152 Cal.App.4th at pp. 1130-1131; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52 [where superior court required to exercise independent review of administrative record, "the scope of review on appeal is limited"].) We resolve all evidentiary conflicts and draw all legitimate, reasonable inferences in favor of the trial court's decision. (Valiyee v. Department of Motor Vehicles (1999) 74 Cal.App.4th 1026, 1031.) "Where the evidence supports more than one reasonable inference, we are not at liberty to substitute our deductions for those of the trial court." (Morrison, supra, 107 Cal.App.4th at p. 868.) B. The Board Had Jurisdiction Over the April 22nd Notice of Discharge (Unterburger)
Without citation to any legal authority, appellant asserts: "Respondent should have held a hearing on the [April 22nd Notice of Discharge] within thirty (30) days of the Notice of Appeal. It failed to do so. Therefore, it lost jurisdiction over the appeal of the April 22, 2008 Notice of Discharge and Appellant should be reinstated . . . ." We disagree.
Appellant made the identical assertion in her Petition in the trial court, also without citation to any authority. She repeated it at oral argument still citing no legal authority to support it.
Over the course of the nine day administrative hearing appellant never objected that the Board did not have jurisdiction because it did not hold a timely hearing on the April 22nd Notice of Discharge. Rather, the gist of appellant's argument was that the Hearing Examiner should consider only the Unterburger incident which was the basis of both the April 22nd Notice of Discharge and count one of the May 13th Notice of Discharge. Appellant argued that the Board did not have jurisdiction over counts two through six of the May 13th Notice of Discharge because appellant could not be discharged a second time. To the extent appellant now argues that the Board did not have jurisdiction over the April 22nd Notice of Discharge because it did not hold a timely hearing, we find the issue has been waived. (Cf. Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 384 [failure to raise statutory time limit defense in administrative hearing waives issue on review of the administrative proceedings].)
We are also unpersuaded by appellant's argument that the Board lost jurisdiction over the April 22nd Notice of Discharge when the Department rescinded it. First of all, appellant had notice of the April 22nd discharge, had the opportunity to challenge that discharge administratively up the chain of command and eventually the Board, and in fact litigated the issue throughout the various proceedings. In our view, the Department did not have authority to rescind the April 22nd Notice of Discharge. This is because the Board had granted appellant's application for an administrative hearing on the April 22nd Notice of Discharge on May 8, 2008, five days before the Department purported to rescind that notice and served appellant with the May 13th Notice of Discharge. Once the Board granted appellant's application, the Department was without authority to unilaterally rescind the discharge so as to serve appellant with another discharge. Accordingly, the Department's rescission was null and void and the April 22nd Notice of Discharge remained the operative notice. To the extent the Unterburger incident was referred to during the administrative appeals process as count one of the May 13th Notice of Discharge, which was identical to the single count underlying the April 22nd Notice of Discharge, we find the error harmless. The fact is that the Hearing Examiner based her decision solely on the Unterburger incident. In reviewing that decision, the Board considered only whether the Unterburger incident supported the finding that appellant engaged in unbecoming conduct. Likewise, the superior court considered only the Unterburger incident. And finally, we consider only that incident in determining whether substantial evidence supported the trial court's findings.
C. The Charges Against Appellant Were Not Unconstitutionally Vague
Appellant contends the basis of her discharge, "inappropriate yelling," is unconstitutionally vague and arbitrary. But appellant was charged with "unbecoming conduct," the factual basis of which was the allegation that she yelled at a co-worker. Appellant conflates two separate issues: (1) whether the phrase "unbecoming conduct" is specific enough to avoid a challenge for vagueness and (2) whether appellant's act of yelling at a co-worker is conduct that so clearly falls within the proscription of "unbecoming conduct" that the rule's application to appellant is constitutionally valid. (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 770 (Cranston).)We answer both questions affirmatively.
1. The charge of "unbecoming conduct" is not unconstitutionally vague on its face
Vague laws offend due process because "they may trap the innocent by not providing fair warning." (Cranston, supra, 40 Cal.3d at p. 763.) Although "void-for-vagueness" challenges arise most often in the criminal context, the rule also extends to administrative regulations that affect conditions of governmental employment. (Id. at pp. 763-765.) A vagueness challenge that does not involve First Amendment freedoms must be examined based on the circumstances of the particular case, not in the abstract. A person cannot complain that a statute is vague if that person's conduct falls clearly within its bounds. (Ibid.)
Cranston involved a Richmond City police officer terminated pursuant to a personnel rule which proscribed: "Conduct unbecoming an employee of the City Service." (Cranston, supra, 40 Cal.3d at p. 763.) Our Supreme Court observed that the phrase "conduct unbecoming" was not intended to impose upon all city employees an identical standard of "becoming" conduct, but rather was to be interpreted based upon the occupation involved in a particular case. (Id. at p. 769.) Accordingly, it interpreted the rule to read: " 'conduct unbecoming' a city police officer [and] to refer only to conduct which indicates a lack of fitness to perform the functions of a police officer. [Citations.]" (Id. at p. 769, italics in original.) The court concluded that, "[t]hus construed, [the rule] provides a sufficiently specific standard against which the conduct of a police officer in a particular case can be judged. Police officers, like teachers and veterinarians, will normally be able to determine what kind of conduct indicates unfitness to perform the functions of a police officer." (Ibid.)
Here, under the reasoning of Cranston, we construe "unbecoming conduct" to read: "unbecoming conduct of a Police Service Representative" and to refer only to conduct which indicates a lack of fitness to perform the functions of a Police Service Representative. Read in this manner, the rule is not unconstitutionally vague on its face.
Next, we turn to the question of whether the alleged misconduct by appellant so clearly falls within the rule's proscription that its application to her is constitutionally valid.
2. The charge was not unconstitutionally vague as applied
In Cranston, supra, the court found a rule providing for discipline for conduct unbecoming an employee was not unconstitutionally vague as applied to the police officer who drove his car in a reckless manner while off-duty because the officer had sufficiently definite notice that his conduct might be cause for discipline: a police department manual suggested that officers were expected to exercise good judgment both on and off duty and the officer had previously been warned that his driving might subject him to discipline. (Cranston, supra, 40 Cal.3d at pp. 771-772.) In California School Employees Ass'n v. Bonita Unified School Dist. (2008) 163 Cal.App.4th 387 (Bonita), the court observed that " ' " '[F]ighting with supervisors or co-workers, is so evidently a violation of commonly accepted notions of work conduct that it will be presumed that the employee is on notice that such conduct is unacceptable and that [she] can be penalized for violating such rules.' " ' [Citation.]" (Id. at p. 404, citing Cranston, supra, at p. 770, fn. 13.)
Under Bonita, any reasonable PSR would know that "yelling" at a co-worker in front of other co-workers and supervisors would be cause for discipline or dismissal whether or not specifically proscribed by rule. And under Cranston appellant had actual notice both that the ability to deal tactfully with other employees was part of her job description and that the failure to fulfill this duty was cause for discipline. For these reasons, we conclude the rule was not unconstitutionally vague as applied to appellant.
D. Substantial Evidence Supported the Finding of Unbecoming Conduct
As we understand appellant's contention, it is that there was insufficient evidence to warrant dismissal based on the Unterburger incident because there was no evidence that she threatened Unterburger, used profanity or racial epithets: "It is illegal for the Department to discharge Appellant for using the words she used in her discussion with PSR Unterburger." We disagree.
In Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 385, the court observed that an employer "might reasonably choose to terminate an employee who was rude to even one customer. . . ." Under Government Code section 19752, subdivision (m), discourteous treatment of the public or other employees is grounds for discipline, including dismissal, of a state civil service employee. The city, like the state and any business enterprise, has a legitimate interest in maintaining good morale. Rudeness between co-workers can have an adverse affect on that morale. For example, in Hosford v. State Personnel Bd. (1977) 74 Cal.App.3d 302, the court upheld the discharge of a California Highway Patrol officer based on findings that the officer committed misconduct which included, among other things, getting into a shouting match with an assistant district attorney, which could be heard by members of the public; the officer accused the attorney of ineptitude and called him names. The court reasoned that the officer's misbehavior "impaired relations between himself and those with whom he worked" and created a morale problem. (Id. at p. 312.)
Here, there was substantial evidence before the trial court that appellant engaged in a verbal altercation with Unterburger in the presence of co-workers and supervisors. Sergeant Oddo testified that he was in the office next to the watch commander's office when he heard "very loud yelling" in the watch commander's office. Entering that office, Oddo saw appellant standing over Unterburger, who was seated at her station at the Area Command and Control computer; appellant was very close to Unterburger, leaning over her and pointing at her while yelling something about Unterburger bumping her off her vacation. Oddo did not recall hearing Unterburger say anything. In response to Oddo's inquiry if they were arguing, appellant replied, "No, that's just the way we talk." Oddo said, "Stop." Appellant walked away. While working with Unterburger later that evening, Oddo asked, "What was the deal with the yelling?" Unterburger told Oddo that appellant had been yelling at her. Oddo later ran into Captain Tingirides, who asked Oddo whether the incident amounted to misconduct. Oddo responded affirmatively and Tingirides instructed him to initiate a complaint.
Unterburger testified that while she was working in the watch commander's office appellant approached her and complained about the vacation schedule. In a calm voice, Unterburger explained that she had seniority over appellant. Appellant's body language became "nasty and mean," she stood over Unterburger in an intimidating manner, and in a very loud voice (but not yelling), appellant said, "Well, I don't have to let you talk to me just any kind of way." After Oddo intervened, appellant walked away stating, "Well, I'm going to get what I want any way. I'll just go to the other side and they'll give it to me." Later, after Oddo asked Unterburger what had happened and she explained, Oddo said he was going to " 'cut a face sheet [i.e. complete a complaint form] because this is unacceptable.' " Unterburger characterized appellant's behavior as rude, a "tad" arrogant, condescending, disruptive and inappropriate.
Rachel Canchola, a sworn employee, testified that she was in the supervisor's office getting ready for roll call when very loud talking in the watch commander's office next door caused her to look in that direction. Canchola saw appellant standing over a seated Unterburger. To Canchola, it appeared that appellant was using their relative positions to intimidate Unterburger. Based on their body language and the tone of appellant's voice, Canchola believed they were fighting. Entering the watch commander's office, Canchola could hear both women talking loudly, but could not make out the words. After Oddo interceded and then left, Unterburger stopped talking but appellant continued talking, although in a lower tone. Canchola believed that appellant's conduct was unprofessional, rude and unacceptable because appellant, who had no work-related reason for being in the watch commander's office, was distracting Unterburger from her responsibilities, which created an officer safety issue.
PSR Tina Bennett testified that she was in the watch commander's office when appellant and Unterburger had a "heated" conversation about vacation schedules. Both women were talking in raised voices, but appellant's voice was louder. Bennett characterized it as "loud talking that, maybe, escalated into a slight yelling." Although Bennett thought appellant's behavior was inappropriate for the watch commander's office, she thought the incident was relatively minor.
This evidence was sufficient to support the finding that appellant engaged in unbecoming conduct consisting of yelling at Unterburger. It is not determinative that appellant did not threaten Unterburger or use profanity because neither is necessary to establish misconduct. Appellant's challenge to the witnesses' veracity is also not determinative because their credibility was for the Hearing Examiner and the trial court to determine, not this court. Finally, appellant's contradictory version of events and Lieutenant David Kowalski's testimony that he did not observe appellant being unprofessional does not compel a contrary result. Like credibility, conflicts in the evidence were for the trier of fact to resolve.
E. No Abuse of Discretion In Selecting Discharge As A Penalty
Appellant contends the Board abused its discretion in discharging her as a penalty for unbecoming conduct. She argues that discharge was excessive under the circumstances and that the Department failed to follow its policy of progressive discipline. We disagree.
" '[T]he propriety of a penalty imposed by an administrative agency is a matter resting in the sound discretion of the agency and its discretion will not be disturbed unless there has been an abuse of discretion.' [Citations.]" (Cranston, supra, 40 Cal.3d at pp. 772-773.) Among the factors that may be considered in determining a penalty are the circumstances surrounding the misconduct, whether the conduct resulted in harm to the public service and the likelihood of its reoccurrence. (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 423, 429.)
Here, each of these factors supports the Department's decision to discharge appellant. First, Canchola's testimony that appellant distracted Unterburger from her responsibilities, which created an officer safety issue, shows that appellant's misconduct, if repeated, could result in harm to the public service. And it is clear from the evidence that the misconduct is likely to be repeated. The City's Guide to Disciplinary Standards permits but does not require progressive discipline before the penalty of discharge may be imposed. Nevertheless, the Department tried progressive discipline to no avail. Lieutenant Anne Clark testified that appellant was in Clark's chain of command beginning in the spring or summer of 2004 until she was discharged. During that time appellant had to be counseled multiple times about getting along with co-workers and supervisors. Clark testified: "It got to such a point with [appellant] that she was consistently disruptive regardless of who she was working with, what their rank or pay grade was. She was rude, she was hostile, she was angry. [¶] I don't have enough adjectives to go into it. She just was really a very hateful person in the workplace."
Moreover, it is clear that appellant's history of misconduct was a factor in the decision to discharge her based on the November 28th incident. Clark testified that a special position was created for appellant because she "could not be in a position where she [had to deal] with the public or coworkers or supervisors in a civilized manner." But despite the special position and the repeated counseling sessions, "clearly no headway was being made. No change was taking place." Tingirides testified that he based his discharge recommendation on appellant's demonstrated inability to get along with people as shown by the number of complaints about her over the years, not including the five allegations of the First Complaint. Under these circumstances, appellant has not shown that it was an abuse of discretion to select discharge as the penalty for her unbecoming conduct.
DISPOSITION
The judgment is affirmed. Each side to bear their own costs.
RUBIN, ACT. P. J. WE CONCUR:
FLIER, J.
GRIMES, J.