Marquez v. KernCounty Civil Service Commission

Filed 4/13/07 Marquez v. Kern County Civil Service Commission CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Linda S. Etienne, Commissioner.

Law Offices of Richard J. Papst and Richard J. Papst for Plaintiff and Appellant.

B.C. Barmann, Sr., County Counsel, Margo A. Raison, Chief Deputy County Counsel, and David E. Wolf, Deputy County Counsel, for Defendant and Respondent.

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Julie Ann Marquez appeals from the trial courts order denying her writ of mandate, which sought to overturn the decision to terminate her employment with the Kern County District Attorneys crime laboratory (crime lab). She contends there was insufficient evidence to uphold the grounds for discipline and, in any event, the decision to terminate her employment was an abuse of discretion. We disagree and affirm the order denying the petition for writ of mandate.

FACTUAL AND PROCEDURAL SUMMARY

Outside of the question of whether Marquez made the statement that led to her dismissal, the facts in this case are not in dispute. Marquez was employed as a criminalist with the crime lab. On the date in question she arrived late for a staff meeting because she thought the meeting was for the following day. The meeting was completed without incident. Marquez left the meeting feeling frustrated, however, apparently because she felt she was being treated differently than other employees.

Marquez went from the meeting to the desk of Vickie Beamer, another criminalist and Marquezs friend. Marquezs purpose in speaking with Beamer was to vent her frustrations. The comments made during this meeting led to the disciplinary action against Marquez.

Beamer testified at the administrative hearing that, among other comments, Marquez told her, If you see me here with a gun, duck. According to Beamer, when Marquez made this comment, she was pointing towards her supervisors office with her hand configured to represent a handgun. Marquez was speaking in a soft voice and was mumbling at the time, so Beamer was only 98 to 99 percent certain that Marquez used the word gun. Beamer was certain Marquez spoke the other words and made the gun gesture.

Marquez returned to her duties shortly after making this comment. Beamer became concerned and asked another coworker, Dachele Smothers, what she should do about the comment. After speaking with Smothers, Beamer reported the incident to her supervisors.

During the investigation it was discovered that Marquez previously had made a similar comment. Dianna Matthias testified that about two weeks before the above incident, Marquez was frustrated due to the demands of the job. Marquez called her to discuss her frustrations. At the end of the conversation Marquez commented that one day you might just find me on the top of the parking structure with a gun. Matthias thought the comment was made in jest.

Marquez admitted having a conversation with Beamer on the day in question, that she was frustrated, and that she pointed towards her supervisors office. She denied, however, making the comment attributed to her by Beamer and forming a handgun using her hand.

After an investigation was completed, the district attorney made the decision to terminate Marquez. The Kern County Civil Service Commission (Commission) upheld the termination after a full hearing, and the trial court denied Marquezs petition for a writ of mandate.

DISCUSSION

I. Substantial Evidence

Marquez argues there was not substantial evidence that the comment attributed to her by Beamer, which she denies she made, constituted a threat. Marques claims it is clear the comment was not a threat because (1) a police report was not filed, (2) criminal charges were not filed, (3) a restraining order was not requested, and (4) a report of workplace violence was not generated by the district attorneys office.

The first three factors cited by Marquez might have supported a finding that the comment was not a threat. The fourth factor does not assist Marquez. The district attorneys office immediately began an investigation once the comment was reported. This investigation was thorough and included investigation of Marquezs claims. In light of the investigation, it is difficult to imagine what would have been accomplished by filling out a report of workplace violence.

Marquezs argument, however, ignores the limited scope of our review. When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1094.5, the trial court is required to exercise its independent judgment. (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.) [T]he presumption [that the administrative findings are correct] has the effect of an admonition to the court. [Citation.] In other words, the presumption provides the trial court with a starting point for review -- but it is only a presumption, and may be overcome. Because 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.)

On the other hand, our review of the trial courts conclusions is limited to the substantial evidence test. (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) Under this test, we conduct a deferential review of the entire record to determine if there is evidence that is reasonable, credible, and of solid value to support the trier of facts conclusion. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment (People v. Kraft (2000) 23 Cal.4th 978, 1053), and we will not substitute our evaluations of a witnesss credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

The issue before us, therefore, is whether the record contains credible evidence that the statement attributed to Marquez was a threat. While Marquez denied making a threat, the only other witness to the conversation, Beamer, testified that she interpreted the comment as a threat and was concerned for her safety. Beamer also testified to the gesture used by Marquez (hand symbolizing a gun) and that Marquez appeared to be angry. This testimony is reasonable, credible, and of solid value to support the conclusion that the comment was a threat. In other words, Beamers testimony was substantial evidence to support the trial courts conclusion that the Marquez made a threat.

II. The Decision to Terminate Marquez

Marquezs second argument is that the punishment imposed for her comment, termination, was inappropriate, and the Commission abused its discretion in upholding the order terminating her employment.

The parties agree that the appropriate standard of review is for an abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.) Nevertheless, while the administrative body has a broad discretion in respect to the imposition of a penalty or discipline, it does not have absolute and unlimited power. It is bound to exercise legal discretion, which is, in the circumstances, judicial discretion. [Citations.] In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employees conduct resulted in, or if repeated is likely to result in, [h]arm to the public service. [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. [Citation.] (Id. at pp. 217-218.) Discretion is abused when the decision in question falls outside the bounds of reason. (People v. Jones (1998) 17 Cal.4th 279, 318.)

There was no abuse here. The crime lab provides forensic support for the prosecution of criminals in Kern County. The testimony from the witnesses was that the atmosphere in the crime lab often was stressful. Marquez testified that she became frustrated because of the demands of the job, and her conversation with Beamer was to vent her frustrations. It is fair to anticipate that if the stress of the job resulted in Marquezs threatening to bring a gun into the crime lab and start firing, then returning Marquez to the same situation could result in the same frustrations and other threats, or perhaps action on the threats. It also is fair to anticipate that other employees would find working with Marquez difficult for fear that her frustrations would cause her to act out again. This fear could very well result in a reduction in the productivity of the crime lab with the resultant difficulties in prosecuting criminals.

We are not suggesting that the above scenario would occur if Marquez were to receive a less severe discipline, nor are we suggesting that if Marquez resumed her position in the crime lab, she again would make threats or act on her threats. Our point is that the decision to terminate Marquez did not fall outside the bounds of reason because of the uncertainty that would accompany less severe discipline. The potential consequences, on the other hand, justify the decision to terminate Marquezs employment.

DISPOSITION

The order denying the writ of mandate is affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

HILL, J.

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