Filed 6/29/20 Rodriguez v. State Personnel Board CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
DIANE RODRIGUEZ,
Plaintiff and Respondent,
v.
STATE PERSONNEL BOARD,
Defendant and Appellant;
DEPARTMENT OF MOTOR VEHICLES,
Real Party In Interest and Appellant.
F077404
(Super. Ct. No. 16CECG03665)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Samuel J. Dalesandro, Temporary Judge.
Alvin Gittisriboongul and Dorothy Bacskai Egel for Defendant and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kristin M. Daily, and Marc B. Koenigsberg, Deputy Attorneys General, for Real Party in Interest and Appellant.
Law Offices of Bennett, Sharpe & Bennett and Barry J. Bennett for Plaintiff and Respondent.
-ooOoo-
Diane Rodriguez was dismissed from a position in the Department of Motor Vehicles (DMV) for dishonesty and other misconduct committed during an investigation into the disappearance of a coworker’s mobile phone. Rodriguez filed an appeal with the State Personnel Board (Board), and the matter was reviewed by an administrative law judge (ALJ). The ALJ made findings against Rodriguez and concluded the termination of her employment was an appropriate penalty. The Board adopted the findings and recommendations of the ALJ, and Rodriguez’s appeal was rejected.
Rodriguez challenged the Board’s decision by petitioning for a writ of administrative mandamus in the Fresno Superior Court. The superior court sustained the petition, concluding dismissal was too harsh a penalty under the circumstances. The Board and the DMV now appeal from the judgment granting administrative mandamus.
The standard of review gives no deference to the superior court’s analysis and conclusions. Our task is to independently review the record and determine whether the Board’s ruling constituted an abuse of discretion. We conclude the Board did not abuse its discretion by upholding the DMV’s decision to dismiss Rodriguez. Therefore, the judgment will be reversed.
FACTS
Rodriguez was employed by the DMV from 1989 through 2015. Although the dates cover a period of approximately 26 years, Rodriguez has repeatedly stated the length of her employment was 24 years. The discrepancy is immaterial.
Rodriguez was hired as a “Field Representative” and later promoted to “Licensing-Registration Examiner.” She administered driving tests and provided other forms of customer service. Rodriguez was considered a good employee and had been commended for exemplary job performance at different times in her career. With exception of the subject events, she had no record of disciplinary issues.
On April 21, 2015, one of Rodriguez’s coworkers (the Coworker) informed their immediate supervisor (the Supervisor) that her iPhone was missing. The Supervisor conferred with her boss (the Manager), and they reviewed surveillance footage recorded by video cameras inside the building. A video showed Rodriguez removing a phone from the Coworker’s workstation.
When the Manager asked Rodriguez about the missing phone, she denied having taken it. The Manager told her it was a serious matter. He also warned that if the phone was not located, he would contact the California Highway Patrol (CHP), which investigates crimes committed on state property. Rodriguez maintained her innocence. The Manager called CHP, met with the responding officers, and showed them the video evidence. Neither Rodriguez nor the Coworker were in the office when the meeting took place.
The next morning, Rodriguez approached the Supervisor and said, “Look what I found.” She then produced the Coworker’s phone, which was wrapped in a sheet of paper containing a handwritten statement: “Oops! Sorry wrong phone, thought it was mine.” The Supervisor instructed her to give the phone to the Manager, who took possession of it and updated CHP.
Later in the day, Rodriguez was questioned by Officer Anthony Arcelus. She initially denied taking the phone or authoring the handwritten note. When told about the video, Rodriguez admitted taking the phone but claimed to have merely hidden it within the office. Apparently believing the distinction was important, Rodriguez made a point of denying she had removed the phone from the building.
Meanwhile, the Manager reviewed surveillance video from that morning and discovered footage of Rodriguez wrapping the phone in a piece of paper. The Coworker reported that while trying to locate her phone the previous evening using Apple’s “Find My Phone” application, it “ping[ed]” at an address in Mendota where Rodriguez lived. The CHP obtained copies of the videos and contacted the Coworker about the tracking information.
On April 29, 2015, the CHP interviewed Rodriguez again and informed her of the additional evidence. She was issued a misdemeanor citation for violating Penal Code section 488 (petty theft). The district attorney’s office later declined to prosecute her.
PROCEDURAL HISTORY AND ADDITIONAL BACKGROUND
On or about June 10, 2015, the Manager submitted to his regional administrator (the Administrator) a request for adverse action against Rodriguez. The Manager recommended the penalty of dismissal because of Rodriguez’s dishonesty in connection with the April 2015 incident. On or about June 29, 2015, the Administrator prepared and submitted her own request for adverse action, which closely resembled the one she had received from the Manager. The Administrator’s request was reviewed and eventually approved by people in higher positions of authority.
While the request for adverse action was being processed, Rodriguez’s employment continued uninterrupted and without further behavioral problems. On October 27, 2015, the Supervisor gave Rodriguez her annual performance evaluation, which was documented in a written individual development plan (IDP). The IDP made no mention of the April 2015 incident and indicated Rodriguez had met the expected standards for all performance criteria. In a comments section, the Supervisor thanked Rodriguez “for always being a team player.”
On or about November 16, 2015, Rodriguez was served with a notice of adverse action pursuant to Government Code section 19574 (all further undesignated statutory references are to this code). The notice advised she was being dismissed from her position effective November 25, 2015. The circumstances of the April 2015 incident were cited as the factual basis for dismissal. Those facts were alleged to have established legal cause under section 19572, subdivisions (f), (m), (o), (r), and (t). The cited provisions respectively authorize discipline against a civil service employee for acts of “Dishonesty,” “Discourteous treatment of the public or other employees,” “Willful disobedience,” “Violation of the prohibitions set forth in accordance with Section 19990,” and “Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person’s employment.” (Ibid.)
In December 2015, Rodriguez filed an appeal with the Board. On her appeal form, she denied the DMV’s factual contentions and allegations of legal cause, including dishonesty, and she alleged “the penalty of dismissal over a prank was grossly excessive.” The Board assigned the case to an ALJ to hold an evidentiary hearing and submit a proposed decision with findings and recommendations. (See § 19582, subds. (b), (f).) The hearing took place on May 11, 2016.
Rodriguez was represented by counsel. Her counsel argued “there was a culture within the [office] of phones being taken [and] keys being taken by DMV employees of other employees.” Counsel intended to show “pranks” were commonplace and Rodriguez had been on the receiving end of them herself. Counsel further argued the length of Rodriguez’s employment, lack of any prior disciplinary problems, and her October 2015 performance evaluation all demonstrated that the penalty of dismissal was unwarranted.
To show pranks were part of the office culture, Rodriguez’s counsel elicited testimony from another employee, Larry V. Larry’s testimony confirmed there were instances of employees hiding each other’s paperwork and personal belongings, but his knowledge of such events was mostly based on hearsay. Larry did testify that his own phone went missing on an unspecified date and turned up in another part of the office. Despite being upset about what the unknown prankster had done, he assumed it was intended as a joke and thus chose not to report the incident to management.
Rodriguez testified on her own behalf. She admitted taking the Coworker’s phone, lying to the Manager on the date of the incident, bringing the phone home with her, and returning it the next morning. She denied all other allegations of dishonesty.
Rodriguez claimed to have taken the phone because she was upset with the Coworker. The Coworker had made negative comments about her and had recently done so without realizing Rodriguez was listening nearby. Rodriguez testified her intention was to hide the phone and return it the same day. She had planned to make a chastising remark while giving it back, i.e., “make sure you look around, see who’s in [the bathroom] before you start talking.”
In Rodriguez’s version of events, she was forthright about having taken the phone from the moment she returned it. She denied making false statements to the CHP officers or otherwise misrepresenting the fact she had brought the phone home with her and written the “Oops” note the next morning. On cross-examination, Rodriguez admitted the note was false insofar as she had not mistaken the Coworker’s phone for her own. When asked why she wrote the note, Rodriguez testified, “I don’t know.”
The DMV called five witnesses: the Coworker, the Supervisor, the Manager, the Administrator, and Officer Arcelus of the CHP. Their testimony established the information summarized above in our statement of facts. The Supervisor and Officer Arcelus contradicted Rodriguez’s testimony about what she had said when she returned the phone and her statements during police questioning.
The Administrator explained why it had taken so long for the DMV to dismiss Rodriguez. According to her testimony, firing a departmental employee is a bureaucratic process requiring the analysis and approval of multiple individuals at multiple levels of authority. She further testified, “It doesn’t happen in 30/60 days. I wish it did because that makes everything fresh. But it doesn’t. Sometimes it takes five/six months. I’m aware sometimes there’s cases that are even longer than that.”
The Supervisor’s testimony addressed the positive performance evaluation Rodriguez had received just three weeks prior to being notified of her dismissal. She explained that given the uncertainty of whether the recommendation of dismissal would be approved, she and the Manager decided it was best to refrain from mentioning the April 2015 incident. The Supervisor was responsible for the evaluation, and she had written it with the mindset of something akin to “you’re innocent until proven guilty.”
The DMV’s case was also supported by documents showing Rodriguez knew of its firm stance on the requirement of honesty and integrity. In 2014, Rodriguez received and signed a memorandum from the Manager regarding the subject of “Employee Expectations.” The opening paragraph of the memo states, “As a Department of Motor Vehicles’ employee, you are part of an organization whose vision is to be ‘a recognized and trusted leader in public service.’ Our department’s core values are 1) honesty and integrity, 2) commitment to serve the public, 3) respect and consideration for each other, our customers, and the environment, and 4) accuracy and quality in all our products and services.”
In June 2016, the ALJ issued a 17-page proposed decision with findings and recommendations. The ALJ expressly found Rodriguez was not a credible witness. She was noted to have testified “in a flat and frequently evasive manner.” In addition, her testimony “constantly shifted and was at times extremely vague.” The ALJ described certain parts of her story as “patently absurd and unbelievable.” The version of events reflected in the testimony of the DMV’s witnesses was found to be true.
The ALJ concluded all alleged grounds for discipline had been established. In particular, Rodriguez’s taking of the Coworker’s phone and subsequent lies to her superiors qualified as discourteous treatment of other employees under section 19572, subdivision (m). Her various acts of deception constituted dishonesty for purposes of section 19572, subdivision (f). The dishonest and unethical conduct also demonstrated willful disobedience (id., subd. (o)) and was of such a nature as to bring discredit to the DMV and/or the position Rodriguez held therein (id., subd. (t)).
As for the propriety of dismissal, several competing factors were identified. “In mitigation, [the Coworker’s] phone was only missing for one day. In addition, [Rodriguez] has no prior discipline in a 26-year career, appears to have performed her job well, and received commendations for her work.” However, dishonesty is viewed as a continuing character trait under the case law (e.g., Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721), and Rodriguez’s testimony—given one year after the events in question—showed a continuing failure to “accept full responsibility for her misconduct.”
The ALJ further observed: “Her claims at [the] hearing regarding her motives for taking the phone, and for writing the note, were patently false. Thus, her lack of awareness of her wrongdoing makes it more likely that she will engage in unethical and dishonest acts in the future, and weighs in favor of a substantial penalty.” Therefore, having found the DMV could “no longer rely on [Rodriguez] to act in an ethical, responsible, and honest manner,” the ALJ concluded dismissal was an appropriate punishment.
In August 2016, the Board fully adopted the ALJ’s proposed decision. In November 2016, Rodriguez filed a petition for a writ of mandate in the Fresno Superior Court. On December 6, 2017, following written submissions on the merits of the petition, the parties stipulated to having the matter decided by a court commissioner. The petition was heard on the same date.
In February 2018, the superior court issued a written statement of decision. In pertinent part, it identified nine circumstances the ALJ and Board had, in the court’s view, ignored when evaluating the DMV’s disciplinary action. We examine those circumstances in our Discussion, post. The statement of decision concluded with the following analysis:
“Ultimately, the strongest evidence in support of the Petition is the [October 2015 performance evaluation]. In no uncertain terms the evaluation can only be characterized as very good. It makes no mention of the incident. Rodriguez was thanked for being a ‘team player.’ The evaluation was given six months after the incident. Yet, three weeks later, Rodriguez was placed on administrative leave. Two weeks after that, she was terminated. This makes no sense. While [Rodriguez]’s dishonesty was manifest, the [DMV] contributed to the problem by allowing pranking and failing to resolve the reported conflict [between her and the Coworker]. [Rodriguez]’s otherwise exemplary employment of 24 years with good evaluations and promotion must be considered. Therefore, the Petition will be granted ….”
On February 21, 2018, the judgment granting a peremptory writ of administrative mandamus was filed. Service of the notice of entry of judgment occurred three weeks later. This timely appeal followed.
DISCUSSION
“The Board is a statewide administrative agency which is created by, and derives its adjudicatory power from, the state Constitution.” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 823, citing Cal. Const., art. VII, §§ 2, 3.) In its adjudicative capacity, the Board functions like a trial court by making factual findings and exercising discretion on matters within its jurisdiction. (Department of Parks & Recreation, supra, at pp. 823–824.) When reviewing an employee’s appeal of disciplinary measures imposed by the employer, the Board may hear the matter itself or assign the case to an ALJ. (§§ 19578, 19582, subd. (a).) The Board may accept or reject the ALJ’s findings and recommendations, in whole or in part, and its decision is entitled to judicial deference. (§ 19582, subd. (b); Department of Parks & Recreation, at p. 823.)
An employee may obtain judicial review of the Board’s decision by petitioning for a writ of mandate in the superior court. (Code Civ. Proc., § 1094.5; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 204–205 (Skelly).) However, the Board’s “determination regarding whether the facts justify discipline and, if so, what the appropriate penalty should be, will not be disturbed in a mandamus proceeding unless the [Board] patently abused its exercise of discretion by acting arbitrarily, capriciously, or beyond the bounds of reason.” (County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615.) When assessing the Board’s decision, the superior court must defer to the Board’s factual findings if they are supported by substantial evidence. (State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 522, citing Skelly, supra, at p. 217, fn. 31.) There is no reweighing of the evidence; “all presumptions are indulged and conflicts resolved in favor of the Board’s decision.” (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487.)
“The appellate court uses the same standard as the superior court, reviewing the agency’s penalty for manifest abuse of discretion.” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 47.) Thus, the standard of review is de novo. (Id. at p. 46; accord, Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1, 11; Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404; Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652 [“The trial court’s determination of abuse or nonabuse of discretion by the administrative agency is of no concern to the appellate court”].) “If reasonable minds could differ over the appropriateness of a penalty imposed, there is no manifest abuse of discretion.” (Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 118.)
In this case, the superior court identified nine factors supporting its conclusion the Board abused its discretion by upholding the DMV’s decision to dismiss Rodriguez. Our independent analysis is as follows.
Factor No. 1
The trial court first considered Rodriguez’s allegations of an office culture in which “pranking” was tolerated the management. The allegations were relevant to her excuses for taking the phone. During the CHP interviews, Rodriguez insinuated the Coworker had previously taken her belongings—e.g., throwing away her food and beverages and removing paperwork from her desk—and she claimed to have taken the phone to “show the [Coworker] how it felt.”
Neither the ALJ nor the Board believed Rodriguez took the phone as a prank. They reached the opposite conclusion: “[Rodriguez] was not playing a prank on [the Coworker] when she took her phone.” But Rodriguez did characterize the incident as a “joke” and a “prank,” and in doing so she contradicted the testimony of Officer Arcelus.
Officer Arcelus testified to telling Rodriguez during the initial interview, “[I]f this is a practical joke and it’s gone bad, let’s just tell [the Manager] that it’s a practical joke and we can just—this can go away.” In response, Rodriguez denied culpability. When told about the video footage, Rodriguez admitted taking the phone because she was unhappy with the Coworker. In light of this evidence and other proof that Rodriguez took the phone in anger, the ALJ and Board found the following testimony to be untruthful.
These excerpts are from the direct examination of Rodriguez by her counsel:
“[Counsel] Q. Did the officers accuse you of stealing the phone?
“[Rodriguez] A. He asked me what happened. So I explained what happened. And I told him prior we—I was upset because she was talking about me and saying stuff. Took her phone. Going to hide it from her and give it back to her. It was just a joke—I mean a prank and that was it. [¶] … [¶]
“Q. Did he inform you that it was a prank that went bad?
“A. Yeah, he asked me if that’s what happened. And I said yes. And that was it.…”
This excerpt is from the cross-examination of Rodriguez:
“[Counsel] Q. Why [did you take the phone]?
“[Rodriguez] A. Because I was upset with her ….
“Q. Okay. When you take someone’s property without their permission because they’re [sic] upset, do you categorize that as a prank or a joke?
“A. Well, and I can only tell you on my behalf, yes, it was a joke because my intentions were not to keep it. They were to give it back to her.
“Q. I’m not asking if your intention was to keep it. I’m asking if—was your intention to make her laugh humorously?
“A. No, but—
“Q. Was your intention to teach her a lesson?
“A. I honestly don’t even know.
“Q. Was this, in fact, an act of retaliation based on your anger with her?
“A. No, I don’t—no, I wasn’t angry at her, maybe just a little bit upset, but—no.”
The quoted testimony supported the Board’s factual findings and credibility determinations.
Additional testimony supported an implied finding that DMV management was not aware of the alleged office culture of pranking. The Manager was asked several questions about this topic and denied knowledge of any such incidents. Rodriguez alleged the Manager had been the victim of a prank committed by two employees who sealed his car doors shut with plastic wrap. The Manager denied the allegation. Rodriguez’s own witness, Larry, was asked if people in the office “ever reported [the alleged pranks] to anyone in management.” He replied, “Quite frankly, they did not.”
Rodriguez’s testimony indicated management knew about the alleged pranking, and parts of Larry’s testimony implied the same thing, but the Board was not obligated to believe it. “The trier of fact may disbelieve all or any part of the testimony of a party or witness if it is tainted with evasiveness, uncertainty or contradictions, or may believe only such portions as seem credible in the light of other evidence.” (Stadley v. Pine Island Coop. Assn. (1962) 203 Cal.App.2d 390, 396.)
Even assuming the management bore some responsibility for letting the conflict between Rodriguez and the Coworker progress to the point it did, the circumstance would, at best, only explain her act of taking the phone. We cannot say the Board abused its discretion by not finding a causal connection between any managerial oversight and Rodriguez’s persistent refusal to tell the truth about her misbehavior.
Factor No. 2
The second factor considered whether Rodriguez had received disparate treatment in comparison to the DMV’s handling of other pranks, e.g., the decision to report the incident to CHP. However, as noted above, there was substantial evidence that no similar incidents had ever been reported to management. Furthermore, the Manager testified to having given Rodriguez the opportunity to avoid a CHP investigation.
When the manager asked Rodriguez about the missing phone, he already knew she had taken it. He questioned her because he “wanted to find out if she would [tell the truth]” and to “[g]iv[e] her an opportunity to return it.” He warned Rodriguez the CHP would be called if the phone was not returned, but she chose to let the situation escalate. The Board did not abuse its discretion by interpreting the evidence in favor of the DMV on this issue.
Factor Nos. 3 & 6
The third and sixth factors addressed whether, and to what extent, the DMV had considered the outcome of Rodriguez’s criminal case. As mentioned, the district attorney’s office declined to prosecute her for taking the Coworker’s phone. The petty theft charge was dismissed “in [the] interest of justice.”
Theft requires an intent to permanently deprive the victim of his or her property. (People v. Avery (2002) 27 Cal.4th 49, 54–57.) Temporary deprivation will suffice, but only if the intention is to keep the property “for so extended a period as to deprive the owner of a major portion of its value or enjoyment.” (Id. at p. 55.) Since Rodriguez returned the phone the next morning, the criminal charge was presumably dismissed due to the challenge of proving the element of intent beyond a reasonable doubt.
The Manager and the Administrator submitted their respective requests for adverse action in June 2015. The petty theft charge was dismissed on October 23, 2015. Therefore, the outcome of Rodriguez’s criminal case was unknown when the recommendations to terminate her employment were made.
The dropped charge was relevant to an implied argument by Rodriguez’s counsel that the DMV violated Labor Code section 432.7. The statute prohibits an employer from considering as a factor in its employment decisions “any record of arrest or detention that did not result in conviction[.]” (Id., subd. (a)(1).) However, when the Administrator was asked what percentage “was based upon any dishonesty and what percentage was based upon the theft,” she testified her recommendation of dismissal was based “one hundred percent on dishonesty.”
The Administrator did say it would be difficult for her to give percentages since theft is an inherently dishonest act. Nevertheless, she testified her recommendation would have been the same without any knowledge of the criminal charge. We conclude substantial evidence supports the implied finding the dismissal was based on Rodriguez’s actions and the cited provisions of section 19572, not the fact she was charged with a misdemeanor.
Furthermore, the weight of the evidence is to be determined by the factfinder, which in this case was the Board. (See Department of Parks & Recreation v. State Personnel Bd., supra, 233 Cal.App.3d at p. 827 [“The Board is entitled to weigh the evidence and determine the facts”].) The standard of review does not permit a reweighing of the evidence. (Telish v. State Personnel Bd., supra, 234 Cal.App.4th at p. 1487.) We thus defer to the Board’s conclusions regarding the probative value of the outcome of Rodriguez’s criminal proceedings.
Factor Nos. 4 & 5
The fourth and fifth factors concerned the DMV’s delay in taking disciplinary action and the omission of any reference to the phone incident in Rodriguez’s final performance evaluation. Viewed in the light most favorable to the Board’s decision, the Administrator’s testimony provides a plausible explanation for why it took so long for Rodriguez to be dismissed from her position. We also note her testimony was uncontroverted.
The Supervisor testified she and the Manager made a joint decision to omit any references to the phone incident in Rodriguez’s performance evaluation. The Manager testified to having no recollection of the evaluation or the circumstances surrounding it. He was questioned about it several times, and although one answer he gave was arguably a denial regarding the Supervisor’s testimony, his collective responses are fairly interpreted as indicating he did not remember one way or the other.
“A reviewing court does not weigh the evidence again like a trier of fact to determine whether the reviewing court believes a witness or considers an inference to be reasonable. Likewise, the reviewing court does not weigh supporting evidence against contrary evidence to determine which is stronger, more likely, more reasonable, etc. Those comparisons and determinations are reserved to the trier of fact.” (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 413.)
The Supervisor wrote the October 2015 evaluation, but there is no evidence she had any say in deciding whether, and to what extent, Rodriguez would be disciplined for the phone incident. Her superiors, i.e., the Manager and Administrator, are the ones who recommended dismissal. They testified to their continuing belief, even accounting for Rodriguez’s long tenure and job performance, that her acts of deception were simply unacceptable in a government agency that touts honesty and integrity as being foremost among its core values. The Administrator also testified at length regarding the importance of honest employees and the dangers posed by having dishonest people working at the DMV.
Factor No. 7
The seventh factor pertained to the DMV’s failure to resolve a preexisting conflict between Rodriguez and the Coworker before Rodriguez took matters into her own hands, so to speak. As previously explained, the Board did not abuse its discretion by failing to find a causal connection between any managerial oversight and Rodriguez’s lack of integrity.
Factor No. 8
The eighth factor was the length of Rodriguez’s employment and clean record in terms of any prior behavioral issues.
The Administrator testified, in relevant part: “When you’re hired with the [DMV], … one of the most important things that an individual brings is their integrity and their honesty[.] Our core values are all about integrity and honesty ….” She then explained how employees are frequently reminded of these values, and also said “the [DMV] doesn’t tolerate dishonesty.” This testimony is supported by the “Employee Expectations” memo Rodriguez signed in 2014.
The record contains additional evidence of the DMV’s belief in the importance of its “core values.” A mantra appears in the footer of several pages of the DMV’s internal memoranda: “Integrity… Trust… Respect… Quality…” (Original italics and ellipses.)
The Administrator testified to giving due consideration to Rodriguez’s long employment history and job performance, and concluding the severity of her actions outweighed those factors. The Board shared the Administrator’s point of view, but reasonable minds could disagree with it. “The fact that reasonable minds may differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within the area of its discretion.” (Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 761.) “Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.)
Factor No. 9
The ninth factor was the timing of the Manager’s request for adverse action.
The Manager testified to believing dismissal was the appropriate punishment. There is no evidence he ever held a different opinion, and he was not questioned about the six-week interval between Rodriguez’s second CHP interview and his formal request for discipline. The Manager could have gone on vacation or been out of the office for another reason. He may have had a series of meetings and/or discussions with colleagues to determine the appropriate course of action. “We do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of the board’s decision.” (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701.) The Board did not abuse its discretion by refraining from speculation about an issue not raised at the evidentiary hearing.
Further Analysis
We now turn to the legal cause for dismissal. Rodriguez does not deny her behavior established grounds for discipline under section 19572, subdivisions (f), (m), (o), (r), and (t). Her attorney confirmed the scope of her claim during the writ proceeding: “The issue before this Court today deals solely with the issue of penalty.”
“Termination is the most extreme penalty that can be imposed in the employment context, depriving the employee of the means of livelihood and making it more difficult to find other employment because of the questionable circumstances under which the prior job ended.” (Paoli v. Civil Service Com. (1993) 12 Cal.App.4th 1073, 1077.) “[T]he overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm] to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly, supra, 15 Cal.3d at p. 218.)
“By its enactment of section 19572, subdivision (f), the Legislature indicated a strong public policy against having dishonest employees in the state service.” (Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 719.) Rodriguez persuaded the superior court that her deceitful behavior was an isolated incident. However, “[d]ishonesty is not an isolated act; it is more a continuing trait of character.” (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972; accord, Gee, supra, at pp. 718–719 [“‘Dishonesty’ connotes a disposition to deceive. [¶] … [¶] Honesty is not considered an isolated or transient behavioral act”].) Rodriguez was found to have given false testimony to the ALJ more than a year after the incident occurred, which substantiates the Board’s conclusion regarding the likelihood “that she will engage in unethical and dishonest acts in the future.”
“Dishonesty is incompatible with the public trust.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) Although many of the published cases in this area involve the firing of dishonest police officers, DMV examiners also play a role in public safety by ensuring incompetent or otherwise unqualified drivers are not licensed to operate a motor vehicle. The public also entrusts the DMV with sensitive personal information, which could easily be misused in a criminal or otherwise harmful manner. Dismissal is not required in all cases of dishonesty, but dishonesty may provide the sole basis for dismissal. (See County of Siskiyou v. State Personnel Bd., supra, 188 Cal.App.4th at p. 1617.)
Rodriguez’s actions were also construed as discourteous treatment and willful disobedience for purposes of section 19572, subdivisions (m) and (o). “Discourtesy to a supervisor generally injures the supervisor-employee relationship and is thus harmful to the public service.” (Caveness v. State Personnel Bd. (1980) 113 Cal.App.3d 617, 631–632.) The Manager testified the incident altered the office environment and that Rodriguez’s coworkers expressed a general sentiment of, “[H]ow can this happen and she still be here?”
“It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.” (Deegan v. City of Mountain View, supra, 72 Cal.App.4th at p. 47.) The record before us does not present such an exceptional case. For the reasons discussed, we conclude the Board acted within its discretion by upholding the DMV’s decision to dismiss Rodriguez from her job.
DISPOSITION
The judgment is reversed and the writ of mandate is vacated. The superior court is directed to deny the writ petition and enter judgment in favor of the appellants.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DESANTOS, J.