Opinion
C040775.
10-31-2003
GAIL RUDOW, Plaintiff and Appellant, v. NORTHERN SIERRA AIR QUALITY MANAGEMENT DISTRICT, Defendant and Respondent.
Following charges and counter-charges between herself and her supervisor that lasted over two years, plaintiff Gail Rudow was terminated by defendant Northern Sierra Air Quality Management District (the District), a local air pollution control agency, for poor performance and insubordination. The trial court denied Rudows petition for a writ of mandate to overturn this decision, finding that the evidence showed that there was good cause to terminate Rudow for insubordination. We shall affirm the trial courts decision.
FACTUAL AND PROCEDURAL BACKGROUND
The District is a local governmental agency, which was formed by merging the air pollution control districts of three counties. Its function is to regulate emissions and control air pollution in the area in order to comply with federal, state, and local air quality standards. (Health & Saf. Code, § 40150 et seq.)
In May 1995, the District hired Rudow as an Air Quality Engineer. At the time of Rudows employment, the District had some eight employees, operating from a main office and a satellite office. Rudows position of Air Quality Engineer was second in the staff hierarchy after the Air Pollution Control Officer, which was held by Rod Hill. Hill evaluated all employees, including Rudow.
In November 1995, Hill evaluated Rudow and gave her an overall rating of "very satisfactory" — just below the highest rating. In January 1997, Hill again evaluated Rudow, giving her an overall rating of "above average" — one rating below "very satisfactory."
However, Rudow and Hills relationship began to deteriorate significantly after Rudow reported an incident involving a temporary employee, Pete Alesi. Specifically, in October 1997, Rudow wrote a memo to Hill that she had had two disturbing experiences with Alesi, preferred not to work with him, and refused to be alone with him.
Hill investigated, interviewed staff members, including Rudow and Alesi, and reported the results in a memo. Hills memo described a personality conflict between Rudow and Alesi that had led to an outburst where Alesi angrily yelled at Rudow and shook his finger at her (though no one else saw the incident). Rudow regarded Alesi as disrespectful, and Alesi regarded Rudow as overly critical. The memo reported comments from other staff members that supported both positions. One staff member said that Alesi used profanity in the office, raised his voice, and talked in a condescending manner to Rudow. Three staff members said that Rudow antagonized Alesi. Hill told Rudow that she would no longer be working with Alesi.
Hill filed this report of the investigation and separate "coaching" memos in the personnel files of both Rudow and Alesi, but imposed no other discipline. Hill coached Alesi on his use of profanity in the office. The memo to Rudow stated that she should have warned Hill of the conflicts before the point where she refused to work with Alesi. To improve working relationships, Hill asked Rudow to use more tact and courtesy, citing her use of humor at others expense and ready criticism of others. Hill also advised her regarding the overuse of written communications (i.e., memos). Hill cautioned that extra care was necessary in memos because one wrong word could be perceived as inflammatory or derogatory.
The memo to Alesi itself is not in the record. Hill described its contents in one line of his report on his investigation and testified that he had placed a memo similar to Rudows in Alesis personnel file.
Nonetheless, a flurry of memos and meetings followed. Rudow responded to her coaching memo with a memo of her own, asking whether Hills memo was a formal "reprimand." Hill wrote back that there was no formal reprimand for the incident, but that formal discipline might result if a pattern of unacceptable behavior emerged.
Rudow and Hill also met twice to discuss her reaction to Hills memo about the incident with Alesi: She did not want a memo in her file and felt that it unfairly blamed her for the incident.
These meetings led to another memo from Hill documenting these talks, including his informing her of her option to respond to his report of the investigation with a memo of her own. The upshot was that Rudow agreed to consider working with Alesi again on some matters and to take a conflict resolution seminar, paid for by the District.
More than a month later, in January 1998, Rudow wrote a four-page response to Hills report on the Alesi incident. Rudow wrote that she objected to Hills report because, among other things, "[t]o my knowledge, comments that fellow employees made during Mr. Hills investigation were inaccurately reported by Mr. Hill." Rudow also said that Hill was to blame for the problem, as well as Alesi and herself, because Hill had heard of the conflict earlier but did not investigate and did not allow Rudow to participate in the hiring of Alesi in the first place. Rudow further complained that despite working for the District for two-and-a-half years, her opinions regarding Alesi were disregarded or considered invalid.
Hill responded shortly afterwards with a memo, stating that Rudows response did her "more damage than good" and suggested a meeting, the "sole purpose" of which would "be to advise [her] on how future letters of this nature can be more constructive and less damaging to [her]." In the meeting, where Hill followed a written "counseling" script, he noted that Rudows memo conveyed great emotion and anger. He warned Rudow that she was responsible for the consequences of her tone and that a memo that inflames the matter and further damages relationships was not constructive. He also advised her not to comment on staff members not involved in the matter; specifically, her comment that staff members bragged about past illegal drug use indicated a willingness to cause others damage. Ultimately, Rudow and Hill came to an agreement that he would revise the report to her file to eliminate some negative characterizations. And Rudow withdrew her response memo.
The relative peace between Rudow and Hill lasted some six months without a further exchange of memoranda.
But in mid-1998, Alesi left his employment with the District. Rudow and a secretary, Judy Zembiec, noticed that Alesi had taken certain records and informed Joe Fish, an Air Quality Specialist — one rank below Rudows. When Fish later advised others that Zembiec and Rudow had claimed that Alesi had taken propriety information, Hill stated that "somebodys going to pay for this with their job" (which Rudow now claims was directed at her). Hill subsequently met with Alesi, and Alesi promised to dispose of the records he had taken.
Then, in July 1998, an argument erupted between Zembiec and Fish. Zembiec had received a public complaint, and after consulting Hill, referred it to Rudow. Rudow investigated initially and turned the matter over to Fish for follow-up. Fish, however, criticized Zembiec for bringing such a minor matter to Hills attention and complained that Rudow had not handled her issues with Alesi properly. Zembiec then became upset, explaining that she would lose her job if she did not report to Hill. Rudow, too, got involved in the contretemps. Fish argued that such matters should be handled among staff members without involving Hill. And he brought up the Alesi incident as an example of a problem that should have been worked out without involving Hill. Rudow became defensive and angry. She followed Fish to his desk and said in a loud voice that Hill was "out of control" and needed to be "slammed down." She slammed her fist into her palm as she said it.
Although Fish was one rank below Rudows, he was the most senior employee and the office computer expert, and was left in charge in Hills absence.
Hill learned of the remark the next day. And staff members involved submitted written memos describing the incident. (Rudows was 10 pages.) The same day that Hill heard of the incident, he scheduled Rudows 1998 evaluation to be held a week later, at the beginning of August 1998. Rudows overall rating in the 1998 evaluation was reduced to "satisfactory," and she received "unsatisfactory" ratings in the categories of "relates with supervisor" and "relates with co-workers." The evaluation was accompanied by a memo explaining, among other things, the basis of the ratings in these categories. The explanation of Rudows unsatisfactory rating as to relations with coworkers noted that Rudow "has been involved in serious conflicts with staff," and on one occasion, "was angry to the point of losing control, resulting in a loud, angry scene in the front office area." Hill also stated that staff did not trust Rudow, that she "puts words in peoples mouths, twists the truth, and fabricates." As to her rating on relations with her supervisor, Hill explained that Rudow criticized him in front of other staff members, including a statement by her that Hill was "`out of control" and needed to be "`slammed down."
Months later, in November 1998, Rudow responded to the 1998 evaluation with a five-page memo, which included a number of negative comments about Hill, including: "A good supervisor does not use McCarthy-like interrogations to resolve conflicts among the staff members. And a good supervisor does not let their personal dislike for an employee influence their evaluation or comments regarding the employees performance." Rudow further asserted that Hills statements about her relations with coworkers were "a misrepresentation of the truth." Rudow also charged Hill with favoring Alesi and Fish and attributed complaints among staff members to such favoritism. Commenting on the reference in Hills evaluation to the conflict resolution seminar that Rudow attended, she wrote that "sending one employee from a dysfunctional office will not resolve the problem, all of the employees should be sent for training. And after the training[,] all parties must also be honest and committed to finding a resolution and not twisting the facts to fit their private agenda."
Some months later, in early 1999, a dispute arose between Rudow and Hill over her service on a jury. Hill was unwilling to authorize full pay for an eight-hour day for jury service, because the jury day was somewhat shorter, unless Rudow made up the balance of the time in the office. Rudow complained to the judge presiding over the case, and Hill reversed his position, although he included the incident as supporting an unsatisfactory rating in the category of dependability in Rudows 1999 evaluation.
During approximately the same time period, Rudow complained that she had received, but had not yet been paid, an increase in her salary. Beginning in December 1998, Rudow complained several times, but it was not until March 1999, when Rudow complained angrily to a coworker and commented that the error was likely intentional given the current management, that the problem (which turned out to be an error by an outside accountant) was resolved. This incident was cited in Rudows 1999 evaluation as supporting an unsatisfactory rating in the category of relations with coworkers.
Rudow was eventually paid both the pay increase and given full-time pay for her jury service.
Another exchange between Hill and Rudow occurred in March 1999, when Hill wrote a memo that noted inaccuracies in a notice-of-violations log that Rudow had submitted. The memo asked her to coordinate more with other staff members to make sure the report was up to date. Rudow responded with a memo stating: "In the name of fairness I suggest that in the future you try to check the facts out before you unjustly accuse me of not trying to coordinate with other staff members on assigned projects." Hill responded in another memo: "Gail, while I appreciate your helping craft a better reporting process, the rude and accusatory tone of your memo was unacceptable. . . . It is only fair to tell you that any future failure to communicate with others in a courteous manner may lead to formal disciplinary action."
Also in March 1999, Rudow had a disagreement with Fish on how to resolve a problem with a database. Rudow requested a meeting with Hill and Fish to discuss the database, and Hill scheduled one for a few days later. However, Hill and Fish, at an earlier meeting on another matter, discussed the database and the options to fix the problem. Hill decided that a meeting was not necessary and directed Fish to help Rudow. Upon learning of this, Rudow stated loudly that she was angry that the meeting had been cancelled. Rudow sent a memo to Hill stating: "I feel that it is unfair and rude in the way that you handled the cancellation of the meeting that I had requested." She accused Hill of waiting until she left the office to discuss the problem with Fish and of then canceling the meeting. Rudow asked for assurance that she could raise software problems with Fish in the future and that she would not be reprimanded for doing so.
Hill responded with a memo reminding Rudow of his earlier warning regarding the tone of a memo and issuing a "Formal Written Reprimand for Rudeness."
In April 1999, Hill met twice with Rudow to present the reprimand and as a first step in a grievance procedure regarding the reprimand. At the first meeting, after Hill read the reprimand, Rudow responded that Hill "lies to her and about her." At the grievance meeting, Rudow said that the reprimand and Hills treatment of her was unfair. When Hill asked Rudow if she thought the tone of her memo about the cancelled meeting was rude and accusatory, Rudow agreed that it was, but maintained that she had a right to speak that way in her memos because Hill pushed her to that point. Rudow also charged that Hill was afraid of and not interested in the truth and that he was dishonest about his memory of events. Rudow asserted again that she had a right to express herself and to defend herself against unfair treatment.
Hill issued a "Second Formal Written Reprimand for Rudeness" to Rudow for her comments at the meeting, stating that he understood that Rudow disagreed with him, but that her statements were inappropriate. Hill cautioned Rudow: "Let me be very clear; you do not have an unfettered right to say whatever is on your mind or speak the way you did in your memos and these two recent meetings with me." Hill warned Rudow that any further failure to communicate courteously could lead to more severe disciplinary action, including dismissal.
In October 1999, Hill again reprimanded Rudow for the tone of a memo. Rudow had sent Hill a memo regarding a meeting that they had had to discuss her request for both overtime and vacation time, by which she would use approximately an hour of vacation time each day so as to go home early. Alternatively, Rudow requested to leave early and work at home. According to Rudows memo, Hill refused, saying that he would have to consult with lawyers if Rudow wanted to work at home, because of "`extenuating circumstances." Rudow proposed another meeting, closing with the statement: "If you decide not to supply the list of `extenuating circumstances or arrange a meeting to discuss this matter I will assume that your objections are just personal."
Hill then sent Rudow a memo, described as a written directive on courteous communications, citing this comment and others as not meeting "the necessary standard for courteous communications between you and me as your supervisor."
In November 1999, Hill again evaluated Rudow. Hill rated Rudows overall performance as "unsatisfactory" and cited many of the incidents described above as contributing to this rating. Prior to the meeting, Rudow prepared a self-evaluation that included a list of achievements and obstacles, but her "key obstacle" was "the continuous unfair treatment by Mr. Hill." Under the heading of obstacles, Rudow also listed nine of "Mr. Hills acts of harassment," referring in some form to most of the interactions with Hill that he had included in her negative evaluation. Rudow also listed, as one goal for the upcoming year, "to use whatever legal means that are at my disposal to bring an end to this harassment."
Hill met with Rudow to present and discuss his evaluation, which was not yet final, and her self-evaluation. At the end of the meeting, Hill directed Rudow to leave work for the rest of the day and to return after the weekend for a meeting where Rudow could respond to the evaluation.
Rudow did not return to work, but took a stress leave of absence for more than a month.
Rudow and Hill met again in December 1999 to discuss the evaluation. At that meeting, Rudow said that she felt she was being harassed into quitting her job and refused to discuss anything without a mediator present. Hill, however, declined to bring in a mediator, stating that the meeting was simply Rudows opportunity to respond to the evaluation. Hill said that since Rudow would not respond, the evaluation would become final.
In December 1999, Rudow returned to work for a short period, but then went on medical leave after she was injured in a horseback riding fall. Rudow was off work until her termination in May 2000.
In April 2000, a District employee called Rudow to request that she return her work logbooks to aid him in a project that she had worked on. The logbooks were spiral notebooks bought by the District, in which staff members had been directed to record their daily activities and the time spent on each project. Although Rudow had worked on her logbook in the office, she refused to return the logs. Rudow considered the logs to be her personal property.
In testimony before a hearing officer, another staff member also stated that she "maintain[ed] [her] own personal logbook" which belonged to her. However, this staff member further testified that that log was not maintained in a spiral notebook. When the hearing officer asked if the witness kept "a handwritten daily diary of sorts," she answered yes. From this testimony, it is not clear whether the witnesss reference to a personal logbook referred to a diary of personal matters or a logbook of work activities.
Hill sent a letter directing Rudow to return the work logs, warning that failure to comply would be considered insubordination and grounds for discipline, including termination. Hill also sent an employee to retrieve the logs, who explained that they were needed for a cost study. Rudow, however, said that she did not believe this. Rudow also responded to Hill by e-mail that the handwritten logs were unnecessary, because the desired information had been reported elsewhere in weekly updates and timecards, and that she hesitated providing any information without consulting her lawyer first. Rudow noted that she was consulting her lawyer regarding conditions for her return to work, which would be embodied in a letter to be sent to the District. By return e-mail, Hill reiterated his direction to return the logs. Rudow did not comply.
In May 2000, Hill sent Rudow a notice that he intended to terminate her employment with the District for unsatisfactory job performance, failure to correct performance problems, and insubordinate conduct. Hill attached extensive documentation to the notice, including the memos and evaluations described above.
Rudow was given an opportunity to respond at an informal hearing. After the hearing, Hill notified Rudow that she was terminated for the reasons stated in the original notice.
Rudow appealed the termination, which triggered an evidentiary hearing to be conducted by an independent hearing officer.
After receiving testimonial and documentary evidence, the hearing officer adopted findings and issued a proposed decision that Rudows termination be set aside.
However, board members of the District reviewed the decision and determined that there was evidence supporting Rudows termination for inefficiency and insubordination or violation of a reasonable order. The board thereupon rejected the findings and recommendation of the hearing officer and adopted its own findings and final decision based upon an independent review of the record.
Rudow filed a petition for writ of mandate in superior court, seeking an order for the board to set aside its decision and to reinstate the decision of the hearing officer.
But the trial court denied the petition, finding that the weight of the evidence supported Rudows termination for insubordination and violation of a reasonable order. In its decision, the court adopted most of the boards findings.
However, the trial court further found that the weight of the evidence did not support the termination of Rudow for inefficiency. The court reasoned that it defied belief that Rudows high marks on her evaluations from 1995 to 1998 could fall so significantly by 1999. And the trial court determined that the findings did not support the conclusion that Rudow was inefficient or did not perform in a satisfactory manner. To the contrary, the court found that the weight of the evidence showed Rudow to be a well-educated, qualified, and competent engineer who performed her duties in an above-average manner.
The District asserts that the trial court should have sustained Rudows termination on this ground, disagreeing that the weight of the evidence did not support Rudows termination for inefficiency. It argues that Rudows inefficiency was connected to and contributed to Rudows insubordination. However, since we affirm the trial courts decision to deny the petition and uphold Rudows termination, we need not address additional grounds for Rudows termination, beyond those that the trial court found to be supported by the weight of the evidence. (See Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1239; McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 132; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236, fn. 2.)
The trial court entered an order and judgment denying the petition, and Rudow appeals.
DISCUSSION
I. Procedural Contentions
We first take up Rudows contentions of procedural error, none of which we find to have merit.
A. Board Policy No. 2155.5.1
Rudow first claims that the Districts board was required to adopt the hearing officers decision, rather than adopt its own decision, because it failed to act within 30 days of the hearing officers decision. We disagree.
Rudows administrative appeal of her termination was governed by the Districts policies. Board Policy No. 2155.5.1 provided in pertinent part: "Within thirty days, the Board shall adopt the hearing officers decision as its own, provided that the Board reserves the right to modify the officers decision, or to adopt its own decision, based on an independent review of the record. Failure to act within sixty days shall be deemed adoption of the officers decision as rendered."
The hearing officers proposed decision in this case is dated August 31, 2000. The Districts board received it on September 1, 2000. And the boards decision is dated October 20, 2000. Thus, the board acted outside the 30-day limit, but within the 60-day limit.
Rudow asserted in the trial court that the board failed to meet the 30-day limit and therefore the hearing officers findings and proposed decision must be deemed adopted. The trial court rejected the argument: "Looking to [Board] [P]olicy [No.] 2155.5 as a whole, it is concluded that the board had the power to render its decision contrary to the hearing officers within sixty days from the date of the hearing officers final decision. While the thirty-day limit appears to be mandatory, such an interpretation would render the sixty-day language meaningless. It is concluded that the thirty-day language is directory and the board did not lose its jurisdiction to render a decision contrary to the hearing officers decision after thirty days."
Rudow contends that "it was error for the trial court to conclude that `shall as used in Board Policy [No.] 2155.5.1 is directory and not mandatory."
We review this question de novo. "[T]he interpretation and application of a written personnel policy governing an administrative appeal presents a question of law subject to our independent determination." (Civil Service Assn. v. Redevelopment Agency (1985) 166 Cal.App.3d 1222, 1225; see also Apple Computer, Inc. v. Assessment Appeals Bd. (2003) 105 Cal.App.4th 1355, 1365-1366.)
However, we, too, interpret the term "shall" in Board Policy No. 2155.5.1 to be directory, not mandatory. "[T]here is no simple, mechanical test for determining whether a provision should be given `directory or `mandatory effect. `In order to determine whether a particular statutory provision . . . is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]. . . . [Fn. omitted.]" (Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910 (Morris).)
"With respect to statutorily prescribed time limits in particular, the high court has articulated the following principles: `Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent. [Citation.] "In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory `unless a consequence or penalty is provided for failure to do the act within the time commanded." [Citation.] As Morris[], supra, 18 Cal.3d [at page] 908, held, the consequence or penalty must have the effect of invalidating the government action in question if the limit is to be characterized as "mandatory."" (Board of Education v. Sacramento County Bd. of Education (2001) 85 Cal.App.4th 1321, 1327 (Board of Education), quoting California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145 (California Correctional Peace Officers).)
Applying these principles in Board of Education, we held that an Education Code section that provided that a school "shall decide" whether to expel a pupil within 40 days after his or her removal from school was directory, not mandatory. (Board of Education, supra, 85 Cal.App.4th at pp. 1327, 1329; see also California Correctional Peace Officers, supra, 10 Cal.4th at pp. 1137-1138, 1145-1146.) We reasoned, among other things, that the "statutes failure to impose a prescribed consequence or sanction for the School Boards failure to meet the deadline brings it within the general rule that the `shall directive was intended to be directory. [Fn. omitted.]" (Board of Education, supra, 85 Cal.App.4th at p. 1329; California Correctional Peace Officers, supra, 10 Cal.4th at pp. 1145-1146.)
In this case, the term "shall" in Board Policy No. 2155.5.1 is directory, not mandatory, with respect to the 30-day limit to adopt the hearing officers decision for several reasons:
First, "`[t]ime limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent." (Board of Education, supra, 85 Cal.App.4th at p. 1327.) There is no contrary intent here because there is no express consequence for the failure to respect the 30-day limit for adopting the hearing officers decision and there is no implied consequence. Instead, only the 60-day limit has a prescribed consequence, i.e., that the hearing officers decision "shall" be deemed adopted if no action is taken. The contrast between the 30-day and 60-day limits suggests that the 30-day limit is not mandatory.
Second, interpreting "shall" to be mandatory in the context of the 30-day limit for adoption of the hearing officers decision would not promote the purposes of the enactment and would instead undermine the rights of innocent aggrieved parties. (Board of Education, supra, 85 Cal.App.4th at pp. 1327-1328.)
A mandatory 30-day limit would afford the board little time to modify or adopt a new decision, skewing the process in favor of an affirmance, which could be made during the initial 30-day period and which is deemed as a matter of law after 60 days. "`[S]eemingly mandatory language need not be construed as jurisdictional where to do so might well defeat the very purpose of the enactment or destroy the rights of innocent aggrieved parties. [Citations.]" (California Correctional Peace Officers, supra, 10 Cal.4th at p. 1146.)
Third, Rudows interpretation of the 30-day period as mandatory for adoption of the hearing officers decision would make the policys reference to adoption as a result of a failure to act within 60 days superfluous and contradictory: There is no need for a "60-day safety net to make the decision final if the board fails to act" (as Rudow describes it) if the 30-day time limit accomplishes the same result — automatic adoption of the hearing officers decision where the board fails to act within the initial 30 days.
In contrast, treating the initial 30-day period as directory gives meaning to all of the sentences in the policy: The policy directs the board to adopt the hearing officers decision within 30 days, but literally read, it does not direct the board to modify, or adopt its own decision within the same 30 days. Instead, read in context, it permits the board to modify or replace the hearing officers decision within 60 days (which it did). Only if the board fails to act within 60 days is the officers decision deemed adopted. This comports with the rule of interpretation that we "[g]ive significance, if possible, to every word or part, and harmonize the parts by considering a particular clause or section in the context of the whole." (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 94, p. 147.)
Fourth, interpreting the initial 30-day period for adopting the hearing officers decision as directory not only gives meaning to the remaining text of the policy, but makes good sense. Thirty days may be sufficient within which to adopt the hearing officers decision. But if the board wishes to modify the decision or adopt its own decision — a process that is more time-consuming — an additional 30 days (up to 60 days) is allowed for this course of action. Only if the board fails to adopt the hearing officers decision, modify that decision, or adopt its own decision within 60 days, is there a default — adoption of the hearing officers decision — because over 60 days is too long for an employee appealing a personnel decision to have to await a final outcome.
Accordingly, the boards failure to make a decision within 30 days of the hearing officers decision did not invalidate the boards decision under Board Policy No. 2155.5.1, which was made within the permissible 60-day period. Only after 60 days would the failure to act be deemed an adoption of the hearing officers decision. The policys 30-day limit is directory, not mandatory.
Rudow argues that other board policies state that "`shall: means mandatory and not permissive" and that "`may: means permissive and not mandatory." The policies Rudow cites are not in the record. In any event, the language quoted plainly refers to the distinction between mandatory and permissive duties, not that between mandatory and directory acts. Our California Supreme Court in Morris, supra, 18 Cal.3d at page 908, observed the difference between the two sets of terms, noting that "the `directory or `mandatory designation does not refer to whether a particular statutory requirement is `permissive or `obligatory, but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action . . . ."
B. Board Findings
Rudow maintains that the trial court erred in adopting the boards findings and in affording them a strong presumption of correctness, in that the "court mistakenly presumed that the board was authorized to make `findings that were different from the hearing officers findings." Rudow interprets the text of Board Policy No. 2155.5.1 to authorize only the hearing officer to make findings and to reserve to the board the right to modify the officers decision or substitute its own decision, but not to adopt its own findings.
This contention has no merit. Under Board Policy No. 2155.5.1, the board has the "right to modify the officers decision, or to adopt its own decision, based on an independent review of the record." (Italics added.) But an agency that rejects a hearing officers decision is also "obligated to articulate its reasons for its rejection of the . . . decision in the form of `findings." (Respers v. University of Cal. Retirement System (1985) 171 Cal.App.3d 864, 870; cf. Lucas v. Board of Education (1975) 13 Cal.3d 674, 677-681.) Thus, Rudow has it backwards: The board was required to make findings to support its decision in order to reject the hearing officers decision.
Furthermore, Rudows suggestion that the court was required to apply a presumption of correctness to the findings of the hearing officer, but not to the findings of the board, is absurd. It makes no sense to give the board the power to reject a hearing officers decision and to adopt its own, and yet bind it to the findings that support the hearing officers contrary result. If that were the case, the differing agency decision would rarely be supported by the findings, and the power to alter a hearing officers decision would prove illusory, in the face of any threat of judicial review under Code of Civil Procedure section 1094.5.
Finally, Rudow offers no authority to support her contention. We will not interpret Board Policy No. 2155.5.1 to yield an absurd result that frustrates the purpose of reserving to the board the right to modify the hearing officers decision or to adopt its own decision. (See 7 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 94, p. 146 [General rule of interpretation is to "[g]ive a provision a reasonable and common sense interpretation consistent with the apparent purpose, which will result in wise policy rather than mischief or absurdity"]; see also Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 46; Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 29; Jones v. California Interscholastic Federation (1988) 197 Cal.App.3d 751, 758.)
C. Oral Argument Before the Board
Rudows final procedural contention is that "[t]he Districts failure to have afforded Rudows [sic] oral argument before the full board of directors prior to rejecting the hearing officers findings and recommendations . . . violated Rudows due process rights."
In fact, Rudow did not request oral argument until after the District had issued its decision. Specifically, in September 2000, the District notified the parties that it had passed a resolution to independently review the record, including the hearing transcript, and to adopt its final decision on Rudows termination. More than a month later, in October 2000, the board of the District rejected the hearing officers decision and issued its findings and final decision, based on an independent review of the record. In notifying the parties of the decision, the board stated that each member had received a copy of the entire hearing record and that the board had deliberated over the record at two meetings in October. Only in November 2000, did Rudows counsel request an opportunity to be heard before the board, noting that the board had met a number of times to discuss the matter without prior notice to Rudow and without providing her an opportunity to be heard.
Assuming, without deciding, that Rudows post-decision request to be heard by the board — despite ample prior notice that the board planned to independently review the record and issue a decision — did not constitute a waiver of oral argument before the board, the question is whether due process requires such oral argument.
To be sure, the adjudicative procedures of the California Administrative Procedure Act (APA) (Gov. Code, § 11500 et seq.) do. Government Code section 11517, subdivision (c)(2)(E)(ii), of the APA provides that if an agency rejects the proposed decision of an administrative law judge and decides the case itself, the agency "shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself."
But the APA procedures do not apply to a local agency, such as the District, which has not adopted those procedures (see Gov. Code, §§ 11500, subd. (a), 11501, subd. (a)); therefore, Government Code section 11517, subdivision (c)(2)(E)(ii), does not apply to this case.
Rudow notes that the trial court here relied on Hohreiter v. Garrison (1947) 81 Cal.App.2d 384 (Hohreiter), in determining that due process did not require the board to hear oral argument. But Rudow points to a passage in Hohreiter where the Court of Appeal said that an administrative agency dissatisfied with a hearing officers decision may "grant a hearing and decide the case anew on the record and argument." (Id. at p. 396, italics added.) However, the court there was expressly referring to and interpreting the requirements of the then-current version of Government Code section 11517, subdivision (c), which, as we have shown, does not apply to a local agency, like the District. (See Hohreiter, at pp. 395-396.)
Nor does Rudow argue that Board Policy No. 2155.5.1 (which governs the boards review of the hearing officers decision) requires that the board hear argument.
Moreover, in Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560 (Boctor), the Court of Appeal rejected a claim that the constitutional right to due process (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a)) requires an opportunity to present oral argument to a local agency before it overrides a hearing officers decision. In that case, the appellate court first explained, as we have, that Government Code section 11517, subdivision (c), does not apply to a local agency, and then said: "In addition, we cannot conclude the MTAs procedures, which allow the CEO to reject the hearing officers recommendation without providing the employee an additional opportunity to present oral or written argument, violate fundamental notions of due process. `"`Due process requires a fair trial before an impartial tribunal and that requires that the person or body who decides the case must know the evidence [and the arguments], but due process is not interested in mere technical formalism. It is the substance that is determinative of whether" an administrative procedure affords due process. [Citation.] Accordingly, ". . . participation in a decision by a [CEO] who has read and considered the evidence, or a transcript thereof, even though he was not physically present when the evidence was produced, does not violate the requirements of due process." [Citation.]" (Boctor, supra, 48 Cal.App.4th at p. 571, quoting Bockover v. Perko (1994) 28 Cal.App.4th 479, 487-488 (Bockover).)
Accordingly, due process requires, not that the board hear oral argument before rendering its decision, but merely that the board review and consider the arguments and evidence, which, in this instance, were found in the transcript of the hearing and the documentary exhibits presented. (See Boctor, supra, 48 Cal.App.4th at p. 571; Bockover, supra, 28 Cal.App.4th at pp. 487-488.) Simply put, Rudow received due process in the proceedings conducted by the hearing officer. That due process was not lost by virtue of a further review of the full record by the board.
Rudow asserts that "lack of fair consideration of Rudows plight is underscored by the boards having met twice to review 802 pages of hearing transcript and over 250 pages of exhibits." But as stated in the letter notifying the parties of the boards decision, the boards meeting was to deliberate, not to review evidence. Each member of the board had already received a copy of the entire hearing record to review before the meetings.
Finally, Rudow was afforded another layer of due process in the trial court. That court decided this case upon a full record, including the transcript of the proceedings before the hearing officer, and exercised its independent judgment on the facts. (Hohreiter, supra, 81 Cal.App.2d at p. 402.) Thus, the ultimate power of decision in this case rested with the trial court. (Ibid.) "Due process contemplates that somewhere along the line a fair trial be had — not that there be two or three fair trials. In any event, . . . [Rudow] having had a fair and impartial trial before a superior court, is in no position to contend [s]he has not been afforded due process." (Ibid.)
Hence, in Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, the appellate court rejected the argument that due process was violated, where the APA (Gov. Code, § 11517, subd. (c)) allowed the agency to decide the case for itself if the proposed decision by the administrative law judge was not adopted, because full judicial review had been afforded: "The requirements of due process of law are fully met where, as here, the licensee was accorded judicial review of the administrative decision in which the court weighed the evidence and rendered its independent judgment on the merits. [Citations.]" (Id. at p. 190.)
We conclude that Rudows right to due process did not require that the board give her the opportunity to present oral argument to the board.
II. Substantial Evidence Contentions
We next take up Rudows claims that the trial court erred in determining (1) that her acts of insubordination were not excused by Hills conduct and (2) that her termination was not the result of gender discrimination.
Although Rudow appears to assert that the trial courts ruling on these matters was against the weight of the evidence, on appeal, we review the trial courts findings and decision under the substantial evidence test. We conclude that substantial evidence supports the trial courts findings and decision on these questions.
A. Standard of Review
In reviewing the Districts decision to terminate Rudow, the trial court applied the independent judgment standard applicable to an agency action that affects a fundamental vested right — here, Rudows continued public employment. (See Boctor, supra, 48 Cal.App.4th at pp. 572-573; Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 661.)
Under that standard, a trial court is required to exercise its independent judgment to determine whether the weight of the evidence presented at the administrative proceeding supports the agencys decision. (Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1130; see 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, 817 (Fukuda).) However, "[b]ecause the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agencys findings." (Id. at p. 818.)
However, on appeal, the standard of review changes markedly. "Even when, as here, the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial courts determination is the substantial evidence test." (Fukuda, supra, 20 Cal.4th at p. 824; Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1174 (Duncan).) "In other words, on appeal, the question is not whether the administrative determination was supported by the weight of the evidence, but whether, disregarding all contrary evidence, there is substantial evidence in support of the trial courts findings." (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 274, p. 1075; see also Duncan, supra, 77 Cal.App.4th at p. 1174 & fn. 6.)
"`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [Citation.] Such evidence must be reasonable, credible, and of solid value. [Citation.]" (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-585.)
B. Provoked Insubordination
Rudow complains that "[t]he [trial] court erred in concluding that Hills incessant harassment was insufficient to apply the provocation rule."
The trial court determined that "[t]he weight of the evidence supports the conclusion that good cause existed for termination of [Rudow] due to her insubordination and violation of reasonable orders given by Hill." It further noted that "[w]hile some of Hills actions may have been provocative, they were not so provocative as to justify [Rudows] inappropriate responses."
Insubordination is a recognized cause for termination of public employment. (See 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 196, pp. 192-193.) It includes insolent, disrespectful, and offensive remarks made to or about a supervisor. (See ONeill v. Department of HUD (Fed.Cir. 2000) 220 F.3d 1354, 1358, 1364-1365; see also Holtzendorff v. Housing Authority (1967) 250 Cal.App.2d 596, 614 (Holtzendorff).)
Nonetheless, "insolent, disrespectful, or offensive conduct may not constitute cause for discharge when provoked by the employer." (2 Witkin, Summary of Cal. Law, supra, Agency and Employment, § 196, p. 193, citing Holtzendorff, supra, 250 Cal.App.2d at p. 618.)
The underlying reasoning for this principle — sometimes referred to as the "provocation rule" (Holtzendorff, supra, 250 Cal.App.2d at p. 618) — is that "[a]n employer cannot provoke an employee to the point where she commits . . . an indiscretion . . . and then rely on this to terminate her employment. [Citation.] The more extreme an employers wrongful provocation the greater would be the employees justified sense of indignation and the more likely its excessive expression." (N.L.R.B. v. M & B Headwear Co. (4th Cir. 1965) 349 F.2d 170, 174.) But courts have been more willing to find "excessive expression" justified where it was a spontaneous or an immediate response to, or followed closely upon, the conduct that provoked the outburst. (See, e.g.,; N.L.R.B. v. Steinerfilm, Inc. (1st Cir. 1982) 669 F.2d 845, 852 [Employees utterance of insubordinate language was excusable reaction to employers unjustified warning that employee had received minutes before]; N.L.R.B. v. Mueller Brass Co. (5th Cir. 1974) 501 F.2d 680, 686 [Employees abusive outburst at supervisor immediately followed suspension on hotly contested grounds].)
Accordingly, while Rudow does not challenge the trial courts finding that she committed numerous acts of insubordination, she does contest its determination that her conduct was not excused pursuant to the provocation rule. Rudow asserts that the trial court erroneously concluded that "[her] conduct was not sufficiently connected to Hills harassment to come within the provocation rule," that "[t]he courts failure to evaluate the multiple incidents of harassment as a trigger to Rudows responses was unrealistic and not consistent with the evidence," and that its "conclusion was not supported by the law or the evidence . . . ."
We review the trial courts determination that Rudows insubordination was not provoked under the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824; cf. Holtzendorff, supra, 250 Cal.App.2d at p. 618.)
We conclude that substantial evidence supports the trial courts determination that Hills actions "were not so provocative as to justify [Rudow]s inappropriate responses."
First, the trial court adopted the boards findings regarding the instances of Rudows insubordination that took place over more than two years, and separately enumerated many of these incidents in support of its conclusion that the weight of the evidence supported Rudows termination for insubordination. Such acts included: (1) Rudows January 1998 memo stating that Hill had inaccurately described input from employees on the Alesi incident; (2) the July 1998 incident with Fish where Rudow said that Hill was "`out of control" and needed to be "`slammed down"; (3) Rudows November 1998 response to her August 1998 evaluation, accusing Hill of "`McCarthy-like interrogations" and of evaluating her based on "`personal dislike"; (4) Rudows March 1999 memo, in response to Hills memo about inaccuracies in a notice-of-violations log, chastising Hill for failing to check out the facts and for unjustly accusing her of not trying to coordinate with other staff members; (5) Rudows memo in March 1999, accusing Hill of improperly canceling a meeting with her and Fish in March 1999 and requesting that she not be reprimanded for discussing computer problems with Fish in the future; (6) the meetings in April 1999 where Hill presented his reprimand to Rudow and she accused Hill of lying "`to her and about her" and claimed that Hill was afraid of and not interested in the truth; (7) Rudows memo in October 1999 in response to Hills reluctance to let her take vacation time and overtime, stating that if Hill would not explain the "`extenuating circumstances" underlying his decision, she would assume his objections were "`personal"; and (8) in April 2000, Rudows refusal to return her work logs, claiming that they were her personal property.
The trial court also found that the work logs were the property of the District and that Rudow was required to return them when requested. This finding was supported by substantial evidence, in that testimony was presented that staff members at the District were required to keep work logs, that they were prepared at work, and that they were written in spiral notebooks bought by the District. The courts conclusion is also consistent with the legal principle that an employee is not entitled to take or retain documents prepared in the course of employment; work documents belong to the employer. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2001) ¶ 14:253, p. 14-26 (rev. #1 2002); Lab. Code, § 2860; see also Pillsbury, Madison & Sutro v. Shectman (1997) 55 Cal.App.4th 1279, 1285-1289; Conn v. Superior Court (1987) 196 Cal.App.3d 774, 780-781.)
Second, substantial evidence supports the trial courts determination that Rudows insubordination was not justified by any provocation. It is significant that many of Rudows insubordinate comments were contained in memos or other written communications to Hill. Unlike the employee who immediately responds to a supervisors conduct with an outburst, an employee composing a written memo is afforded time for reflection before transmitting the remarks engendered by high feeling. The duress of provocation is not present under such circumstances and thus cannot be easily asserted as a justification for the insubordination. Indeed, Hill counseled Rudow at the outset of their conflict to use care in drafting memoranda to avoid expressing intemperate statements. Insubordinate statements made in memoranda, not only have a more lasting impact, but are more likely to be a deliberate, rather than a spontaneous (and therefore a more excusable) response to provocation.
The trial court said: "To the extent [Rudow] argues she was justified [in] continuing this conduct over a period of years because of Hills provocation, her argument is not supported by the weight of the evidence. . . . [¶] While some of Hills actions may have been provocative, they were not so provocative as to justify [Rudows] inappropriate responses. In particular, it is noted that [her] inappropriate conduct was well advanced before the jury service and incorrect pay incidents. And, while those incidents may have given [her] reason to be upset and may have served to provoke some of [her] behavior in early 1999, they were ultimately resolved in [her] favor, e.g., she received full pay. Moreover, other incidents occurred much later in the year and the next year, including [Rudows] refusal to return work logs. There is little connection between this conduct and the jury duty and incorrect pay incidents."
Moreover, substantial evidence supports the trial courts conclusion that many of the incidents of insubordination were remote from the provocation that purportedly triggered them. For instance, Rudows January 1998 memo regarding the Alesi incident came more than a month after Hills memo reporting the results of his investigation. And Rudows statement in July 1998 that Hill was "`out of control" and needed to be "`slammed down" was made six months after that. Likewise, Rudows memo in response to her August 1998 evaluation was made three months later — in November 1998. And even the jury service and pay increase incidents in early 1999, of which the trial court was critical, came long after much of Rudows pattern of insubordination had begun and had persisted.
A significant space of time between the provocation and the insubordinate conduct undercuts, if not defeats, a claim of provoked insubordination. (Cf. N.L.R.B. v. Mueller Brass Co., supra, 501 F.2d at p. 686; N.L.R.B. v. Steinerfilm, Inc., supra, 669 F.2d at p. 852.) An employee cannot claim an employer provoked her to lose control and commit an indiscretion, when the asserted provocation is substantially in the past. At that point, insubordination becomes premeditated and less justifiable. (Cf. N.L.R.B. v. Florida Medical Ctr., Inc. (5th Cir. 1978) 576 F.2d 666, 673.) If it were otherwise, insubordination would become an immunized (and thus protected) response to any supervisory criticism that was forceful. Any discipline or sanction for insubordination would turn into an adjudication of the wisdom of the employers conduct. No employers hierarchy and discipline could easily survive such a standard.
Finally, the evidence here indicates that where Rudow wrote a memo or made an oral statement that constituted insubordination, the claimed provocation, even if it preceded Rudows insubordination by a short space of time, was often relatively innocuous. For example, Hills memo in March 1999 to Rudow that a notice-of-violations log was not up to date led to her response charging him with a failure to check his facts and with unjustly accusing her of failing to coordinate with staff. Similarly, Hills cancellation of an informal computer meeting in March 1999 prompted Rudow to denounce Hill, in effect, for acting behind her back. In April 1999, Hill met twice with Rudow to explain reprimands for these rude and insubordinate comments, which unfortunately resulted in Rudows escalation of the situation by directly calling Hill a liar.
Rudows comments in these instances contrast markedly with Hills. The evidence shows that Hill did not display discourtesy to Rudow in his purportedly provocative memos and communications. Rather, the evidence indicates that Hill was ostensibly endeavoring to work out the situation and correct problems, but Rudow responded with unconcealed ill-will and unrestrained accusations. Such a juxtaposition of conciliatory action by a supervisor and defiance by an employee constitutes substantial evidence that Rudows insubordinate conduct was not provoked. (See Carleton College v. N.L.R.B. (8th Cir. 2000) 230 F.3d 1075, 1081.) In sum, there was substantial evidence supporting the trial courts finding that Hills actions were not sufficiently provocative to justify Rudows insubordination.
Rudow nonetheless argues that "[t]he court ignored the collection [of] negative baggage which was created by Hills repetitive harassment of Rudow while acknowledging instance[s] [where] Hill mistreated Rudow." Rudow emphasizes both the trial courts findings that were critical of Hills managerial style in general (e.g., his excessive use of memos and failure to make more effort to resolve the conflict with Rudow) and the trial courts findings concerning Hills handling of Rudows jury duty (which the court said was "totally out of line") and the pay increase problem (which was not promptly addressed despite Rudows complaints).
But even assuming that each act of provocation, insufficient alone to justify insubordination, could, over a lengthy period, collectively justify a later act of insubordination, Rudows insubordination did not follow closely a final provocation that "broke the camels back." Instead, Rudows insubordination began early in her relationship with Hill before the cumulative effect of the alleged provocations could be argued to trigger a response. And Rudows final act of insubordination — the failure to return the work logbooks — was not provoked or the product of a series of provocations. In short, the final act of insubordination lacked the uncontrolled spontaneity that can excuse an outburst.
We conclude that the trial courts finding that Rudows insubordination was not excused by Hills conduct is supported by substantial evidence.
C. Gender Discrimination
Rudow claims that "[t]he Districts termination of [her] was discriminatory, unlawful and pretextual. The courts failure to recognize the termination as such was not supported by the weight of the evidence, was an abuse of discretion and, therefore, reversible error."
Again, despite Rudows reference to the weight of the evidence, we do not apply the same standard as the trial court, but review the trial courts findings and decision that Rudow was not subjected to gender discrimination under the substantial evidence test. (See Fukuda, supra, 20 Cal.4th at p. 824; see also Dawn v. State Personnel Board (1979) 91 Cal.App.3d 588, 590.) Our review of the record leaves no doubt that substantial evidence supports the trial courts findings and decision.
While the trial court analyzed the claimed gender discrimination on the basis of both a hostile work environment and disparate treatment, Rudow asserts on appeal only that the evidence shows disparate treatment and that the reasons for her termination were pretextual.
Disparate treatment is intentional discrimination against a person on a prohibited ground, i.e., treating similarly situated individuals differently in their employment because of a protected characteristic, such as gender. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 (Guz); Chin et al., Cal. Practice Guide: Employment Litigation, supra, ¶ 7:355, p. 7-42.)
To prove disparate treatment, Rudow had to provide evidence that (1) she was a member of a protected class, (2) she qualified for and performed competently in her position, (3) she suffered adverse employment action, such as termination, and (4) some other circumstance suggested discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.)
If Rudow established a prima facie case of discrimination, a presumption of discrimination would arise, and the burden would shift to the District to produce evidence of a legitimate, nondiscriminatory reason for its actions. (Guz, supra, 24 Cal.4th at pp. 355-356.) If the District carried its burden, the presumption of discrimination would disappear, and the burden would shift back to Rudow to show that the employers articulated reason was a pretext to cover up discrimination or to offer any other evidence of discriminatory motive. (Id. at p. 356.)
Rudows disparate treatment claim is founded on the assertion that two employees, Alesi and Fish, were treated more favorably than she was. As to the Alesi incident (which began the conflict between Rudow and Hill), the trial court found that Rudow may have perceived that Hill showed favoritism to a lower level temporary employee over her, but that Hills response was not based on gender and in fact, Hill treated them equally. This conclusion is supported by substantial evidence, including the fact that Hill put a memo in both of their files as a result of the incident.
Rudow claims, however, that the memo to her "openly blamed" her for the incident, while the memo to Alesi was limited to his use of profanity and ignored his disrespectful and intimidating conduct toward her. But Hills investigation of the incident yielded substantial criticism by other staff members of Rudows offensive conduct towards coworkers, especially Alesi. The primary fault attributed to Alesi was his use of profanity. The memos to the file, in short, simply reflected the results of the investigation.
Rudow also claims that the trial court ignored evidence that in July 1998 Hill accused Rudow and Judy Zembiec of spreading rumors that Alesi had taken confidential records from the District when he left and "implicitly" threatened to terminate them for reporting the theft, while showing leniency to Alesi, despite his purported criminal conduct. But this incident was not mentioned in the boards findings. And while there is some evidence that Hill was critical of Rudow for spreading a rumor about Alesi (he cited it as a negative factor in her August 1998 evaluation) and threatened to discipline somebody over the matter (though it is far from clear whether he meant Rudow, Zembiec, or someone else), the asserted favoritism toward Alesi on the basis of gender is not supported by substantial evidence. Alesi was an ex-employee at that point, no longer generally subject to Hills authority. The records taken — permits and permit applications for matters Alesi had worked on (apparently taken to show his work product to future employers) — were of limited confidentiality; the permits were in fact public records. Hills method of dealing with the matter — obtaining Alesis agreement to destroy the records (except the permits) — was a pragmatic solution.
Moreover, to the extent that the evidence indicates that Hill tended to side with Alesi after the initial incident, the evidence does not suggest that the treatment was the result of gender discrimination. "[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally." (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1157 (Slatkin).) The evidence in the record does not indicate such a motive in that instance.
Rudow nonetheless argues that Hills criticism of Rudows and Zembiecs spreading of rumors over Alesis purported theft of confidential records was significant because it "precipitated" the July 1998 incident where Rudow said that Hill was "`out of control" and needed to be "`slammed down" during an argument with Fish. Apparently attempting to show gender discrimination on the strength of the events arising out of these three dissimilar incidents — Alesis purported theft, Fishs criticism of Rudow and Zembiec that they should have followed office protocol, and Rudows claim that Hill was "`out of control" — Rudow points to Hills response to the latter incident as another example of disparate treatment. Rudow asserts that the "disparity between Hills handling of Rudow and Zimbiec [sic] as compared to Fish demonstrated his prejudice toward Rudow and Zimbiec [sic] as compared to Fish."
Admittedly, Rudow was evaluated negatively as a result of the incident, and Fish was not given a written reprimand. But Hill testified that he reprimanded Fish orally and told him that he was at fault as well as Rudow and Zembiec, and that discipline might result if his behavior did not improve. Hill also testified that he downgraded Fish on his next evaluation in response to the incident. Moreover, Rudows comment that Hill was "`out of control" and needed to be "`slammed down" is in no way comparable in nature or gravity to Fishs role in the incident, where the strongest statement that Fish made was far less inflammatory and directed at Zembiec (i.e., according to Zembiec, Fish said bringing a minor matter to Hill was "very dumb"). Thus, the evidence in the record does not support Rudows contention that she was subjected to disparate treatment on the basis of her gender.
Regarding Hills purported favoritism toward Fish in general, we further note that the trial court observed that the evidence supported the conclusion that Hill and Fish "had a long[-]standing, positive work relationship." Even Rudow agreed with this assessment. She testified that Hill and Fish "worked like a set of well-oiled gears" and that she would never have the same rapport with Hill, because she was not as intelligent as Fish and seemed to be the only one having trouble with the computer. In other words, if there was favoritism, it was based on long association and merit. Rudow effectively acknowledged that if Hill treated Fish more favorably than her, it was for reasons other than gender discrimination.
Although we doubt that Rudow even raised a prima facie case of gender discrimination, she argues that claims of inefficiency and insubordination asserted against her were pretextual. As mentioned, the trial court found that the weight of the evidence did not support termination by reason of inefficiency.
But this does not undermine the trial courts rejection of Rudows claim of gender discrimination in light of the substantial evidence that supports the courts finding that good cause existed for her termination based on her insubordination and violation of a reasonable order. Moreover, if there is evidence that one of the reasons for her termination was incorrect or dishonest, that is not tantamount to evidence of discrimination. (Slatkin, supra, 88 Cal.App.4th at p. 1157.) While "[i]n an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias" (Guz, supra, 24 Cal.4th at p. 356), an inference of intentional discrimination cannot be drawn solely from evidence that the employer lied about its reasons. (Slatkin, supra, at p. 1157.) "`The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employers proffered reasons are unworthy of credence may `considerably assist a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employers actions. [Citation.]" (Ibid.)
In this case, Rudow cannot succeed because the trial court found that the weight of the evidence supports the conclusion that good cause existed for the termination of Rudow because of her insubordination and violation of a reasonable order given by Hill. The trial courts findings that Rudow committed numerous acts of insubordination and violated a reasonable order are supported by substantial evidence, as shown earlier. Those findings support the conclusion that her termination was not the result of gender discrimination.
Moreover, Rudow has not identified any male employees who were insubordinate but suffered no or less adverse employment consequences than she. Rather, Rudow attempts to establish that her numerous acts of insubordination were used as a pretext to terminate her on the basis of her gender by arguing that "[t]he [trial] court incorrectly concluded that Rudows refusal to return log books in May 2000 constituted insubordination."
But this incident seems to be an especially poor pick to show that the charge of insubordination was a pretext for discrimination. As we have explained, the trial courts finding that the logs prepared at work were the Districts property — which she was required to return on request — was overwhelmingly supported by the evidence. We cannot regard this reason for Rudows termination as a mere pretext. Even if it were, Rudow has failed to argue, let alone demonstrate, that all of the other acts of insubordination were used as mere pretexts to disguise her employers desire to get rid of her because of her gender.
We conclude that the trial courts determination that Rudows termination was not the result of gender discrimination is supported by substantial evidence.
DISPOSITION
The judgment is affirmed. The District shall recover its costs on appeal. (Cal. Rules of Court, rule 27(a).)
We concur NICHOLSON, Acting P.J. and HULL, J.