Filed 10/23/17 Anderson v. State Personnel Board CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiff and appellant Adam Anderson challenges the trial court’s denial of his petition for writ of mandate to set aside the decision of defendant State Personnel Board (the Board) sustaining the termination of his employment by real party in interest and respondent California Department of Developmental Services (the Department). Anderson claims the trial court abused its discretion in denying his writ petition because its findings are not supported by the evidence and the penalty imposed is grossly disproportionate. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Anderson worked as a psychiatric technician employed by the Department at the Porterville Developmental Center, a residential facility for developmentally disabled individuals (the Center). He frequently worked in a unit of the secured treatment area that houses individuals who pose a threat to the health and safety of themselves or others. Anderson was working in that unit on July 11, 2012, when he had a physical encounter with a client. According to Anderson, the client was having his vitals taken when he stated that he would not take his medications. Anderson counseled him to take his medications, but the client continued to argue and became more agitated. The client then “began kind of flexing up,” cursed at Anderson, threatened to hit him in the jaw, stood up, and took a “fighting stance.” Anderson perceived the client as a clear and present danger, so he attempted to physically contain the client, assuming other staff members would join him.

Based on that encounter, the Department dismissed Anderson from his position for inexcusable neglect of duty, dishonesty, discourteous treatment of the public or other employees, willful disobedience, and other failure of good behavior. It found Anderson had “physically and emotionally abused” the client and jeopardized the safety of other employees, and that he had been dishonest in his written statement and subsequent investigative interview. Anderson appealed his dismissal.

At the hearing before the administrative law judge (the ALJ), Anderson’s supervisor, James Bradley, testified that at the time of the incident between Anderson and the client, Bradley and the nurse practitioner were in the chart room area connected to the treatment room in which another psychiatric technician was taking the vital signs of the client, who had engaged in physical altercations with staff on numerous occasions. Anderson was in the doorway adjoining the treatment room with the chart room. The client, who would frequently argue about taking his medications before ultimately taking them, was sitting on the examination table and told Bradley that he was not going to take his medications. Bradley explained to the client that because he was having behavioral issues, it was very important to take his medication. Anderson too was counseling the client to take his medications. The client, using foul language, informed staff that they could not make him take his medications, which was true—he had a right to refuse medication.

Suddenly, Anderson “popped off” the door frame against which he had been leaning and, looking frustrated, approached the client, who was still sitting on the examination table having his vital signs taken. Bradley called Anderson’s name and told him to stop, but Anderson did not stop. Anderson pushed the client against the wall. Bradley, still directing Anderson to stop, approached Anderson from behind, grabbed his arms, and pulled him away from the client. Bradley did not see the client assume a fighting stance prior to Anderson’s pushing him. As Bradley was pulling Anderson away from the client, the client hit Anderson. After Anderson had been pulled away, he punched a cabinet.

The nurse practitioner who witnessed the incident between Anderson and the client testified she was sitting at the computer in the chart room and had come out of the chart room to speak with the client about his willingness to take his medications. She noted the client was sitting on the examination table, posturing about refusing to take his medications, a psychiatric technician was taking the client’s vital signs, and Anderson and Bradley were counseling the client to take his medications. Then, Anderson “pushed forward, [Bradley] went in, furniture was pushed.” She saw Anderson approach the client only in her peripheral vision, but noted that he approached at a quick pace. It appeared that Bradley was pulling Anderson off of the client, and she could not see the client or the other technician. She ran for help. Unlike Bradley, the nurse practitioner did not remember seeing a blood pressure cuff on the client’s arm. Neither did she recall hearing Bradley instruct Anderson to stop.

The psychiatric technician testified he was taking the client’s vital signs, including his blood pressure, before the client was to be given a new medication. Anderson was in the room with him, and was counseling the client to take his medications. He could not hear what Anderson and the client were saying because he had the stethoscope in his ears, but it looked like the client was cussing at Anderson and being verbally aggressive. While the technician was still taking the seated client’s blood pressure, he saw Anderson “go towards” the client, so he and Bradley approached Anderson “to get ahold of him and bring him back.” While it appeared to the technician that Anderson was trying to contain the client, he “didn’t feel like [the client] was a threat” and he had been trained to “tap out”—meaning to take over for—a fellow staff member if it appears the staff member is escalating. He did not recall removing the blood pressure cuff from the client’s arm. He also testified that it was impermissible for a single staff member to contain a client against a wall, and neither would it be appropriate to respond to a verbally aggressive client by physically containing him.

Evidence was presented that staff are permitted to use restraint techniques “[o]nly when there is a clear and present danger to either the client himself or to others.” Additionally, “each client has the right to be free from any type of harm or any type of restrictive interventions or conditions and that [staff] would only use highly restrictive interventions if there was someone in grave danger of physical harm, either being the client themselves or someone else.” If these boundaries are violated, a formal investigation is required, and unprofessional conduct is subject to disciplinary action, up to and including dismissal. Further, the Center has “zero tolerance of any type of abuse, mistreatment or exploitation or neglect of [its] clients.” Pushing a client would be considered a violation of that policy. Any incidence of abuse must be reported to the police and to the licensing board—that is, the State Department of Health Care Services. (Health & Saf. Code, § 100100.) Wall containments are considered “highly restrictive interventions,” may never be performed by a single staff member, and are not a permitted response to verbal aggression. Following this incident, a licensing investigator visited the facility and issued a citation to the Center.

Initially, the Board adopted the findings and proposed decision of the ALJ revoking the notice of dismissal and reinstating Anderson. However, the Department timely petitioned the Board for rehearing, which the Board granted. On rehearing, the Board concluded that dismissal of Anderson was proper. Anderson then filed a petition for writ of mandate asking the trial court to set aside the Board’s decision and order. The trial court denied Anderson’s petition. Anderson now appeals from the decision of the trial court.

DISCUSSION

This appeal is governed by Code of Civil Procedure section 1094.5. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584 (California Youth Authority).) Thus, the burden is on the plaintiff to prove an abuse of discretion by the Board in failing to proceed in the manner required by law, or in making a decision not supported by the findings, or in making findings unsupported by substantial evidence. (Code Civ. Proc., § 1094.5, subds. (b)-(c); Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) Here, Anderson contends the trial court abused its discretion in denying his writ petition because the Board impermissibly failed to defer to the ALJ’s credibility determinations and because there is insufficient evidence to support the Board’s findings. He also claims the penalty of dismissal is a manifest abuse of discretion. We conclude the Board did not abuse its discretion in overturning the ALJ’s credibility determination, substantial evidence supports its findings, and the penalty imposed is not manifestly excessive.

1.0 Credibility Determination

Anderson contends the Board improperly “ignored” the ALJ’s credibility determination rather than deferring to it. We conclude the Board did not err in overturning the ALJ’s factual finding based on nonobservational elements of credibility because the ALJ’s credibility determination contains limited evidence of Anderson’s observed demeanor, manner, or attitude; that that evidence does not appear to have been a substantial basis for the ALJ’s credibility determination; and the Board was permitted to consider other evidence of credibility.

Generally, “t is the province of the administrative agency conducting the hearing to weigh the evidence; this court may only determine whether substantial evidence supports its findings and conclusions.” ([i]Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 432.) However, with respect to credibility determinations, a specific method for court review is delineated in Government Code section 11425.50,[1] which provides that “f the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement [of the factual basis for the decision] shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.” (§ 11425.50, subd. (b).) As to all other factual findings, the Board may exercise its independent judgment. ([i]Ibid.; California Youth Authority, supra, 104 Cal.App.4th at pp. 586-589.)

We, and the Board, must “ ‘ “weigh more heavily findings by the trier of fact [the ALJ] based on observation of witnesses than findings based on other evidence. . . . [¶] . . . However, the [ALJ’s] identification of such findings is not binding on the agency or the courts, which may make their own determinations whether a particular finding is based substantially on credibility of a witness. Even though the [ALJ’s] determination is based substantially on credibility of a witness, the determination is entitled to great weight only to the extent the determination derives from the [ALJ’s] observation of the demeanor, manner, or attitude of the witness.” ’ ” (San Diego Unified School Dist. v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, 1147.)

Here, the ALJ made the following credibility determination:

“While the testimony of the percipient witnesses varied somewhat, the differences were minor, especially given the very short duration of the incident at issue. To the extent that testimony differed, it is deemed to have occurred because of the short duration of the incident and the location and focus of each witness. None of the witnesses are deemed to lack credibility. However, [Anderson’s] rendition of the facts is credited when the testimony is in conflict, because he was the only participant who was focused exclusively on [the client] during the event.

“At the time of the incident, neither [the psychiatric technician] nor [the nurse practitioner] had their eyes on [the client]. [The psychiatric technician] was taking vitals and recording the results. [The nurse practitioner] was sitting at the computer in the chart room, without a sight line to [the client]. Bradley, who was also in the chart room, by his own testimony, had a limited sight line, due to his location, [Anderson’s] location, and [the client’s] location. Additionally, once [Anderson] moved toward [the client], Bradley’s sight line was completely blocked.

“Furthermore, [Anderson’s] conduct during the incident was consistent with his work history, his work reputation (according to his supervisor Bradley), and his demeanor at the hearing, which was direct, unwavering, and compassionate toward [the client]. And, [the Department] failed to introduce any evidence to impugn [Anderson’s] reputation.

“Based on the foregoing, where the witnesses’ testimony differed, [Anderson’s] version of events is credited.”

Initially, and most importantly, we are not persuaded that the ALJ’s determination that Anderson’s testimony was to be believed above other witnesses’ testimony was “based substantially” on the ALJ’s assessment that Anderson’s demeanor was “direct, unwavering, and compassionate toward [the client].” Rather, based on the ALJ’s assessment that “[n]one of the witnesses lack credibility” and on the great import the ALJ attributed to the respective locations and vantage points each witness held during the incident, it appears observational elements of credibility played a minor role, if any, in the ALJ’s credibility determination.

Next, we must clarify that the only credibility determination made by the ALJ that even arguably “identif[ies] any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination,” thereby triggering the deference on review required by section 11425.50, subdivision (b), is that “[Anderson’s] conduct during the incident was consistent with his work history, his work reputation (according to his supervisor Bradley), and his demeanor at the hearing, which was direct, unwavering, and compassionate toward [the client].” (Italics added.) Contrary to Anderson’s argument, neither the ALJ’s reference to the “location and focus of each witness” nor its finding that “[n]one of the witnesses are deemed to lack credibility” meet the requirements of section 11425.50, subdivision (b). The former finding is not based on “observed demeanor, manner, or attitude of the witness” on the stand but on the witnesses’ respective vistas during the incident. (§ 11425.50, subd. (b.) And in the latter, there is no specific reason identified for the finding. (Ibid.; California Youth Authority, supra, 104 Cal.App.4th at pp. 595-596.) Thus, our analysis is focused only on the determination that Anderson’s demeanor at the hearing was “direct, unwavering, and compassionate toward [the client].”

On rehearing, the Board acknowledged that “[s]tanding alone and without contrary evidence,” the ALJ’s credibility finding that “ ‘[Anderson’s] conduct during the incident was consistent with his work history, his work reputation . . . , and his demeanor at the hearing, which was direct, unwavering, and compassionate toward [the client]’ ” “is entitled to great weight and should not ordinarily be disturbed.” Nevertheless, the Board found that “[t]he contrary evidence regarding the absence of provocation by [the client, i.e., the testimony of the percipient witnesses,] is particularly strong and persuasive.” Additionally, the Board found that Anderson’s testimony was self-serving, that the ALJ’s credibility determination did not include any discussion of the other witnesses’ demeanor that would cast doubt on their veracity, and that it was implausible that the psychiatric technician engaged in taking the client’s vital signs would not have noticed the client standing and taking a fighting stance. Based on an evaluation of the record, the Board found Anderson pushed the client in contravention of policy and that the client “did not jump off the table and assume a fighting stance.” “ ‘Nothing . . . precludes the agency head or court from overturning a credibility determination of the [ALJ], after giving the observational elements of the credibility determination great weight, whether on the basis of nonobservational elements of credibility or otherwise.’ ” (California Youth Authority, supra, 104 Cal.App.4th at p. 588, quoting 25 Cal. Law Revision Com. Rep. (1995) p. 161, reprinted at 32D West’s Ann. Gov. Code (1995 ed.) foll. § 11425.50, p. 299.) Therefore, we do not fault the Board with overturning the ALJ’s credibility determination based on its own review of the record.

Neither does it appear the Board disregarded the observational elements of the ALJ’s credibility determination. Rather, it appears the Board, within its discretion, recognized that great weight was due to the extent the determination was based on those elements, but considered that a minor portion of the credibility determination, and overturned the credibility determination based on nonobservational evidence. Based on this, we cannot say the Board abused its discretion or failed to proceed in the manner required by law in its rejection of the ALJ’s credibility determination.

2.0 Reliance on Guidelines and Facility Bulletins

Couched within his challenge to the sufficiency of the evidence supporting the Board’s decision, Anderson raises the claim that it was an abuse of discretion for the Board to rely upon the active treatment crisis management guidelines and facility bulletins[2] because they are “unenforceable underground regulations.” He contends the guidelines and the facility bulletins proscribing patient abuse should have been promulgated in accordance with the provisions of California’s Administrative Procedures Act (§ 11340 et seq.). However, standards or rules that relate “only to the internal management of [a] state agency” are excluded from the requirements of the Administrative Procedures Act. (§ 11340.9, subd. (d); California School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298, 1334.) And a regulation need not be adopted in accordance with the Administrative Procedures Act if it would merely duplicate statutory standards or procedures. Here, the prohibition against unnecessary restraint and physical abuse is already enumerated by statute and regulations. (Cal. Code Regs., tit. 22, § 76525, subd. (a)(6), (20); Health & Saf. Code, §§ 1418, subd. (a)(2)-(5), 1599; Welf. & Inst. Code, § 4502, subd. (b)(8).) Therefore, it was not improper for the Board to rely on the guidelines or facility bulletins on this basis.

3.0 Substantial Evidence

Anderson contends there is insufficient evidence to support the Board’s decision because the testimonial evidence presented by Bradley, the nurse practitioner, and the psychiatric technician is not as credible as Anderson’s testimony, and there was no evidence presented of the guidelines relied upon by the Board. Having already concluded the Board did not err by overturning the ALJ’s credibility determination, we do not consider Anderson’s claim that there is substantial evidence to support the ALJ’s credibility determination. Additionally, having already rejected Anderson’s claim that the guidelines and bulletins are unenforceable underground regulations on which the Board could not rely, we review the entirety of the evidence in the record to determine whether substantial evidence supports the decision of the Board. This includes the testimony presented to the ALJ regarding the content and application of the guidelines and facility bulletins. Therefore, based on our review of the record, we conclude the Board’s decision is supported by substantial evidence.

In reviewing the factual determinations of the board, “[w]e 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.) “We do not substitute our own judgment if the board’s decision ‘ “ ‘is one which could have been made by reasonable people.’ ” ’ ” (Ibid.) Neither do we “take into account evidence which detracts from the weight of other evidence . . . .” (Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 758.) Rather, we “examine all relevant evidence in the entire record, considering both the evidence that supports the Board’s decision and the evidence against it, in order to determine whether that decision is supported by substantial evidence.” (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487.) “ ‘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.” (California Youth Authority, supra, 104 Cal.App.4th at pp. 584-585.)

3.1 Inexcusable Neglect of Duty

Section 19572, subdivision (d) makes “nexcusable neglect of duty” a cause for discipline of an employee. For purposes of this statute, “neglect of duty” refers to “ ‘an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty.’ ” ([i]Gubser v. Department of Employment (1969) 271 Cal.App.2d 240, 242.) The Board found that when Anderson pushed the client—in response to the client’s verbal aggression—in contravention of the guidelines, he committed an inexcusable neglect of duty. Here, there was evidence presented that it is a violation not only of regulations,[3] but also of the guidelines, to physically engage a client who is being only verbally aggressive, and there is substantial evidence in the form of testimony by supervisor Bradley, the nurse practitioner, and the psychiatric technician, that the client did not pose a physical threat but was being only verbally aggressive. Thus, we conclude the Board’s finding is supported by substantial evidence.

3.2 Dishonesty

Section 19572, subdivision (f) makes “[d]ishonesty” a cause for discipline of an employee. The Board found Anderson was dishonest in reporting in his written statement and investigative interview that the client “jumped off the table into a fighting stance, which posed a clear and present danger to [Anderson].” As above, substantial evidence, in the form of testimony by Bradley and the psychiatric technician that the client was still seated when Anderson approached and physically confronted him, supports this finding.

3.3 Discourteous Treatment

Section 19572, subdivision (m) makes “[d]iscourteous treatment of the public or other employees” a cause for discipline of an employee. The Board found that by “push[ing] a developmentally disabled client who posed no imminent threat of danger” Anderson engaged in discourteous treatment. As above, testimony from Bradley, the nurse practitioner, and the psychiatric technician permits a reasonable trier of fact to conclude that Anderson pushed a client who did not pose an immediate threat of danger to himself or others but was being verbally aggressive in refusing to take his medication while seated on an examination table. Therefore, substantial evidence supports the Board’s finding.

3.4 Willful Disobedience

Section 19572, subdivision (o) makes “[w]illful disobedience” a cause for discipline of an employee. The Board found that Anderson was willfully disobedient in pushing the client because the guidelines “explicitly prohibit staff from physically responding to a client who is being verbally aggressive.” Similarly, there was substantial testimonial and documentary evidence presented to support a finding that the conduct engaged in by Anderson here, as explained by Bradley, the psychiatric technician, and the nurse practitioner, violates the guidelines that prohibit physical responses to verbal outbursts.

3.5 Other Failure of Good Behavior

Section 19572, subdivision (t) makes it a cause for discipline of an employee if the employee engages in “[o]ther 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.” “This subdivision has been interpreted as meaning that the misconduct must bear some rational relationship to [the] employment and must be of such character that it can easily result in the impairment or disruption of the public service. [Citations.] The legislative purpose behind subdivision (t) was to discipline conduct which can be detrimental to state service.” (Stanton v. State Personnel Bd. (1980) 105 Cal.App.3d 729, 739-740, italics omitted.) The Board found that because the Center received a citation as a result of Anderson’s misconduct, the Department had shown other failure of good behavior. Indeed, there was testimonial evidence presented that the Center was cited as a result of the encounter; therefore, there is substantial evidence to support this finding as well.

3.6 Insubordination

The Board indicated the Department asserted Anderson was insubordinate when he did not heed Bradley’s order to stop as he approached the client. However, the Board found Anderson did not hear the order, so there was no showing of insubordination. Therefore, it dismissed insubordination as a basis for adverse action. As such, we do not consider whether there is substantial evidence to support a nonexistent finding of insubordination.

4.0 Appropriateness of Penalty

Finally, Anderson contends the penalty of dismissal is grossly disproportionate to Anderson’s conduct and should be set aside because it is “not just and proper” in light of his outstanding record of civil service and the negligible harm to the public service that resulted from the encounter. He claims the evidence establishes at most that Anderson misread the dangerousness of the situation and that his good faith mistake does not warrant the punishment. We disagree.

“Generally speaking, ‘[in] a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’ ” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217.) In reviewing for an abuse of discretion, we consider “the circumstances surrounding the misconduct and the likelihood of its recurrence,” but “the overriding consideration . . . is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm] to the public service.’ ” (Id. at p. 218.) “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.” (Constancio v. State Personnel Bd. (1986) 179 Cal.App.3d 980, 990-991.) We will not disturb the penalty imposed by the Board unless we find it was “clearly excessive.” (Id. at p. 991.)

Here, the evidence established that Anderson’s conduct opened up the Center to citation, directly violated statutory and regulatory prohibitions and obligations of the Department and Center, and violated the client’s rights. Additionally, as Anderson continues to minimize his conduct and suggests that it was a misinterpretation of the situation, it appears the conduct is likely to recur. Indeed, it is his critical failure of judgment that appears to be at issue in that he overreacted to a situation in a manner that put himself and the client at risk, and subjected his employer to penalty. Based on the work environment in which he was employed, it seems likely Anderson would be placed repeatedly in similar situations wherein violent clients for whom the Department is obliged to care engage in verbal outbursts, and it is not unreasonable for the Board to conclude Anderson would overreact and physically assault that client as he did here. (See Parker v. State Personnel Bd. (1981) 120 Cal.App.3d 84, 88 [dismissal is appropriate where “[s]ubstantial evidence and common sense would support the judgment simply on the basis of the irreconcilability of plaintiff’s behavior and his job”].) Therefore, we cannot conclude the Board abused its discretion in imposing dismissal from employment as the penalty for Anderson’s conduct.

DISPOSITION

The judgment is affirmed. The Department shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ , J.

We concur:

NICHOLSON , Acting P. J.

HOCH , J.