Peraino v. Merced Irrigation Dist.

Filed 2/28/07 Peraino v. Merced Irrigation Dist. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Bennett & Sharpe, Inc., Barry J. Bennett, Thomas M. Sharpe, and Robert D. Hoppe for Plaintiff and Appellant.

Mason, Robbins, Browning & Godwin and Corbett J. Browning for Defendants and Respondents.

-ooOoo-

INTRODUCTION

Appellant Constance Peraino was fired from her position as a customer account representative with respondent Merced Irrigation District (the District).^[1] After a two-day administrative hearing, the hearing officer upheld the termination and the District adopted the hearing officers findings. Appellant then filed a petition for writ of mandate in the superior court, arguing the termination was not supported by the evidence and, in the alternative, she should have been demoted as a lesser disciplinary action. The court denied the petition. On appeal, she contends the petition was improperly denied, the District did not have just cause to terminate her, and the District should have demoted her as an alternative disciplinary action.

STATEMENT OF THE CASE

On March 30, 2005, appellant filed a petition in the Superior Court of Merced County for a writ of administrative mandate, pursuant to Code of Civil Procedure section 1094.5, to order the District to set aside the termination decision and reinstate her. On or about August 10, 2005, the District filed an answer to appellants petition and argued there was just cause for appellants termination.

On or about September 8, 2005, appellant filed responsive points and authorities. On or about October 14, 2005, the District filed opposition. On October 24, 2005, appellant filed a reply. On November 7, 2005, the court conducted a hearing on appellants writ.

On December 9, 2005, the court denied appellants petition for writ of mandate. On January 3, 2006, the judgment was filed.

On March 3 and 7, 2006, appellant filed a timely notice and amended notice of appeal.

FACTS

Appellant joined the District as a cashier/clerk in 1997, and worked in the finance department. She accepted customer payments, and read electric and gas meters in the field. In 2000 or 2001, she was redirected into a clerical position as a customer service representative in the electrical department and received a salary increase, but she continued to read meters at the same time. From 1997 to 2001, appellant received positive and complimentary annual performance evaluations, and she did not receive any criticisms or complaints.

On July 1, 2002, appellant was promoted to the newly-created position of customer account representative. The District had entered the electrical business about three or four years earlier, and competed against PG&E to attract residential and commercial customers for electrical service. In 2000, the District had approximately 400 customers, whereas it had about 3,700 customers by 2004. The new position was created to deal with the expanded market and attract more electrical customers to the District. Appellant was the first person to fill that position.

According to the Districts job description, the qualifications for the customer account representative included computer skills in Windows, Word, Excel, Access, and e-mail; knowledge of electrical rate schedules, contracts, and operations; and an associate of arts (AA) degree but preferably a bachelors degree. The position required an individual capable of exercising independent judgment, initiative, and ability to work with minimal supervision. The customer account representatives duties were to contact prospective customers for electrical services, provide necessary tactical information, obtain customer applications, develop marketing programs for electrical services and products, serve as a coordinator between technical staff and electrical service customers, conduct market research, develop presentations for customer education and business development, and make recommendations and evaluations of objectives and practices regarding existing customer programs and services.

Appellant had been recommended for the newly-created job by her supervisor, Roy Price (Price). Price had been a customer service representative with PG&E for 32 years, and worked for the District as a full-time consultant. Appellants promotion included a considerable five-step pay increase. Appellant, however, did not have an AA degree as required by the job description. One of the contested issues in this case was whether she was required to earn an AA degree as a condition of her promotion. On June 13, 2002, prior to receiving the promotion, appellant sent the following memo to Price about her education status:

The attached information is the college courses I have enrolled in for the summer/fall of 2002 along with my future schedule of classes required to complete my AA degree at Merced College. I am scheduled to receive my AA degree in the spring of 2003. My future plans are to attend Cal State Stanislaus, there I will be pursuing a degree in Business Administration. With this information I am requesting [District] approval to attend these classes on the reimbursement program. (Italics added.)

On June 14, 2002, Price sent a memo about appellants proposed education schedule to Garith Krause, the Districts general manager and chief executive officer. The memo stated that appellant intended to complete her AA degree, she had earned 68 units but some of the course requirements had changed over the years, she would have to complete more than the usual 60 units to earn the degree, and appellant and her advisor worked on a plan to finish the AA units over two semesters and one summer class. Price wrote that appellant should receive the promotion to customer account representative because her completion of 68 units was the equivalent of an AA degree and satisfied the jobs qualifications.

On July 22, 2002, the District finalized the paperwork and approved appellants promotion from customer service representative to customer account representative, with a salary increase from $2,795 a month (level 13) to $2,929 a month (level 18). The personnel action form stated that appellant was to complete agreed upon schedule of fulfilling educational requirements for this position and to keep the personnel Department informed as these requirements are met. This form was signed by District supervisors but not signed by appellant.

In July 2002, the District hired Jem Brown (Brown) as the manager of business development, in charge of marketing, customer service, and advertising for electrical services. Price had retired, and the District decided to change his hourly consulting position into a full-time management job. The District conducted a national search to fill the full-time position and hired Brown, who had previously worked for large utility companies in Illinois and North Carolina.

In August 2002, Brown started to work for the District and became appellants supervisor. Brown testified appellants job required her to perform marketing work with small businesses and consumers who were potential electric customers. She was also required to perform rate studies and technical-type analysis, to determine the feasibility of converting a customers electrical service from PG&E to the District. As we will discuss, post, Brown testified that he quickly realized appellant was not qualified for the position of customer account representative, she did not have the necessary training or education, she did not realize the activities she should be performing, and not a whole lot got done even when she got a lot of assistance from myself and other employees .

The Performance Evaluation

On August 29, 2003, Brown completed a written performance evaluation of appellant for the period of July 1, 2002 to July 1, 2003. This was the first and only written evaluation of appellants performance as a customer account representative. Brown wrote that her performance was unsatisfactory, below acceptable standard, or satisfactory in almost all areas. Brown wrote that appellant needed extensive training in critical areas of electrical systems operations, customer management, and sales process, she was much more comfortable handling administrative-type work activities, and she constantly missed project completion dates. Appellants work typically had serious errors, she needed to slow down and think through an assignment before handing in unsatisfactory work products, and she needed to practice active listening skills to be more effective. Brown also wrote that appellant took [t]oo many personal phone calls and ran [t]oo many errands on company time.

[Appellant] will require extensive training to become an effective customer service or marketing person. She also needs to be more prompt with internal [and] external customer followups. She should stay on top of an issue until it is resolved from the customer [and] [District]s perspective.

Brown concluded that appellants overall performance was below job standards.

[Appellant] was promoted into her Business Development role prematurely. At this point in her career development, she lacks the necessary education, training, and experience to meet job standards in her present position.

To the Districts knowledge, she has not met the educational requirements of the position. Per a memo in her personal file, she should have completed her AA degree by this time.

Even if the District spent the required training [and] education monies, I dont think she has the skills to perform in her present customer service rep. position.

Unfortunately, it appears that [appellant] will not be able to meet the Districts job requirement. I would recommend that she be offered alternative employment with the District or terminated from District employment.

Appellant did not receive this evaluation until after she received the termination notice.

The First Termination Notice

On the morning of September 3, 2003, appellant returned to work after a vacation. Robert Blum (Blum), the Districts director of administrative services, personally served her with a letter and advised her that she was being terminated from her employment. Appellant was taken aback and pretty shocked when she realized it was not a practical joke. Blum tried to explain the reasons for the termination, such as her supervisors repeated findings of lack of performance, tardiness, and other issues, but appellant was in a state of shock.

The written notice stated appellant would be terminated from her employment as a customer account representative as of September 5, 2003, and that she was previously provided with notice of the action. The letter further stated:

The factual basis for this action is your inability to perform, in any manner, the requirements for your classification of Customer Account Representative. Your performance for the latest reporting period found your performance rated as Considerably Below Standards. This type of performance adversely affects the Districts efficiency and reflects discredit upon the organization. (Italics added.)

On September 5, 2003, appellant provided Blum with a written response to the termination notice. In the letter, appellant complained she had never been informed, verbally or in writing, about notice of the disciplinary action, had never received her July 1, 2003 evaluation, and had never been told that she was not meeting her job requirements. Appellant wrote she had been attending Merced College to complete her AA degree, as required, with no limited time frame. Appellant had received praise from her coworkers and clients, and Brown had never given any verbal or written indication that he was not happy with her performance. Appellant wrote she had requested training for billing information but never received it. Appellant requested reinstatement or transfer to the Districts financial division because she had experience in that area.

Appellant further wrote that she was concerned the District had violated her privacy based on a conversation she had with a coworker, on or about August 18, 2003, that Brown said appellant was going to be fired because another employee did all of her work. Appellant declared she asked Brown if there was anything they needed to talk about before she left on vacation, and Brown simply said to have a good time.

The Skelly ruling

On October 15, 2003, appellant filed a petition for writ of mandate (case No. 147224), arguing the District denied her due process rights guaranteed by Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly). On April 2, 2004, the court conducted an evidentiary hearing.

On April 12, 2004, the court issued an order granting appellants petition for writ of mandate, and found the District failed to comply with the spirit and intent of Skelly. The court found appellant could only be discharged upon good cause under Skelly, and that she was given written notice of the proposed action, a copy of the charges, and the right to respond orally or in writing. However, Skelly also required the District to provide appellant with the material upon which the disciplinary action was based. Appellant only received oral notification that her department head and supervisor both agreed that [her] job performance was unsatisfactory and that in their opinion there was no amount of training which could be provided to bring [her] up to an acceptable performance level. The District failed to comply with Skelly because appellant was not given her 2002-2003 job performance evaluation until after she was terminated.

The court concluded that providing [appellant] with an oral summary of the employee performance evaluation did not satisfy the requirement to provide her with the materials which was the basis for her discharge, and she was entitled to those materials prior to the scheduled hearing. The court ordered the District to provide appellant with back pay and benefits from the date of appellants termination through the date she was granted a valid Skelly hearing. The court declined to award attorneys fees to appellant, and found the District only committed a technical Skelly violation and such conduct was not done deliberately or for some improper purpose.

The Second Notice

On May 4, 2004, the District provided appellant with another notice of intended disciplinary action, advising her that she was terminated from her position as of May 7, 2004.

The factual basis for this action is your inability to perform, in any manner, the requirements for your classification of Customer Account Representative. Your performance evaluation for the latest reporting period found your performance rated as Below Standards. This type of performance adversely affects the Districts efficiency and reflects discredit upon the organization.^[2] (Italics added.)

The notice listed several specific incidents as the factual basis for the decision: she failed to complete the education requirements for her position after her written assurance to Price, on June 13, 2002, that she would do so, and being advised orally and in writing about the imminent deadline; the report of her supervisor, Brown, that she regularly did not arrive at work by 8:00 a.m. for the first six months that he supervised her; she was constantly on the telephone or cellular phone for personal reasons during working hours; she spent too much time socializing with coworkers and running errands for her family during working hours; she failed to accurately complete electric rate studies as ordered; there were numerous customer complaints that she failed to follow-up after meetings, that she was confusing to communicate with, and made commitments on the Districts behalf without authorization; she failed to comply with orders to set up meetings with commercial customers; she had extremely poor letter writing skills even after receiving training; and other staff had to complete specific projects assigned to her.

On May 24, 2004, appellant met with the District for a Skelly hearing, and orally responded to the allegations. The District advised appellant there were no documents to support the allegations aside from appellants performance evaluation for 2002-2003.

The Third Notice

Later on May 24, 2004, immediately after the Skelly hearing, the District issued another notice of disciplinary action, that appellant was terminated on May 24, 2004, and listed the same reasons as set forth in the May 4, 2004, notice. The District complied with the court order and provided appellant with back pay and benefits through May 24, 2004.

On May 27, 2004, appellant advised the District that she was appealing the disciplinary order and requested an administrative hearing. On September 20 and 21, 2004, the administrative hearing was conducted. John A. Marlo, a retired judge, acted as the hearing officer.

The Administrative Hearing

At the administrative hearing, the District presented the testimony of numerous administrators as to appellants performance as a customer account representative. Brown testified he became appellants supervisor after Prices retirement, and that appellants job as a customer account representative required her to contact residential and commercial customers about switching their electrical service from PG&E to the District. She was required to work closely with engineering and other divisions to determine if certain electrical projects were financially and logistically feasible, calculate the revenue against capital costs, and conclude whether it was worthwhile to pursue the project. Brown described the job as a professional position, with self-motivating activities and guidelines to accomplish goals and objectives.

Brown testified he soon realized appellant was not qualified for her position, and she did not have the motivation or skills to perform the required duties. She failed to perform [f]ollow-ups with customers, rate studies for customers.... Following up with customers to make sure their problems are solved and taken care of, and it wasnt getting done. Brown testified that within two months of becoming her supervisor, he spoke with appellant on a number of occasions and told her that he was not satisfied with her performance. Brown had a number of meetings [with appellant] asking where I could help out with her activities so she could progress better and get the tasks completed basically .... He regularly spoke to her on individual issues and also had three or four sit down meetings in the one year that he supervised her.

Brown testified the District conducted rate studies to compare a customers energy costs between PG&E and the District. Brown testified appellant never correctly completed one rate study in one year. Brown and other employees instructed and trained appellant at least four or five times about how to conduct electric rate studies, but appellant was never was able to perform the required project feasibility determinations.

Brown testified that he assigned numerous projects to appellant that were within her job description, provided guidance and assistance on those projects, and she either failed to perform and/or never finished the assignments. These included setting up meetings with mid-sized business as prospective customers, tracking the development of a project on a particular website, determining how other utility providers deal with low-income and public benefit programs, and performing rate studies for specific potential clients, such as Castle Air Base and Grocery Outlet.

Brown testified he received at least five complaints from potential customers that appellant failed to follow-up with their meetings and questions. He received three or four complaints that appellant was confusing to communicate with. He also received complaints, directly and indirectly through other employees, that appellant promised services to potential customers that the District was unable to perform. Brown followed-up on a few of the complaints and apologized to the businesses.

Brown specifically testified about a project involving La Nitas restaurant in Atwater, which appellant failed to complete and resulted in the customer suffering construction delays and additional expenses. Brown testified that if appellant had properly performed the rate study, it would have shown that the proposed project was not financially feasible, but appellant failed to perform the task.

Brown testified he sent appellant to two training sessions to help her acquire the necessary skills. Brown realized appellant was not able to handle customer questions as to the Districts legitimate ability to provide service. Brown attended 10 to15 customer meetings with appellant, and realized she was not skilled in customer management or the sales process and the meetings were very confusing to customers. Brown sent her to an out-of-state seminar on electric systems for nonengineers, to make technical issues more understandable. Appellant attended the seminar but Brown did not notice any improvement. Brown also determined appellant lacked the ability and education to write effective business letters, and sent her to a local seminar on business writing skills. However, Brown testified a one-day writing seminar didnt seem to do the trick and she needed some type of degree to get writing experience. Appellant was also responsible to maintain customer files. After she was terminated, Brown discovered the files were not organized and were missing various documents, and all the files had to be reorganized.

Brown testified that appellant said she was taking college classes, but Brown never saw any paperwork that she had passed any classes, earned credits, or requested reimbursement for enrollment expenses. Brown knew appellant had agreed to get her AA degree in a certain amount of time and, no, I dont think that that had happened.

Brown testified that he also discussed appellants work-habits with her. Brown testified that when he initially became appellants supervisor, appellant rarely arrived at work by 8:00 a.m. in the first couple months. He advised her to get to work on time. After their conversation on this topic, Brown noticed she started arriving to work on time.

Brown testified that on a number of occasions, he advised appellant that she spent way too much time on her cell phone, both the company cell phone and her personal cell phone. It was always ringing.... Brown testified that sometimes both her personal and business cell phones rang at the same time, and she answered either phone during customer meetings. Brown testified these incidents occurred on occasions [t]oo countless to even recall. Brown told appellant to stop answering the cell phone during customer meetings because it was rude. Brown believed another supervisor issued an internal memo to stop the practice, but appellant never stopped answering the cell phone during meetings. Appellant was on the phone all day as near as I could tell, both her personal and business cell phones always rang, and Brown never received that many business calls on his own business cell phone. Brown also complained, Too many times where I would go look for her or somebody else would and nobody knew where she was.

Brown testified he had a lot of discussions with the Districts managers about trying to find a position for appellant within the District that was more suitable for her skills. Brown testified that for the three months preceding appellants termination in September 2003, he tried to find another position for appellant and talked to about every manager in the company, including Krause and Blum. Brown personally contacted directors and managers on my own knowing that she wasnt fitting in right in his division and she did not have the skills to do the job, but he could not find another position for her within the District.

Brown prepared appellants performance evaluation for 2002 to 2003. He wrote that she needed extensive training in electric system operations, because I dont know that she could tell a transformer from a capacitor bank or a transformer from an air conditioning unit for that matter. Such knowledge was required for her position. Brown also wrote about appellants deficiencies in customer management and sales because of her failure to follow-up with customers, such that customers did not know where things stood. Appellant was not a good communicator and did not know how to talk to a customer about their needs and problems. She just would continually talk and talk and talk and confuse the customer and not really relay any information with respect to what type of business the meeting was for. Appellant did not produce as many new customers as would be expected in that position, and Brown could only recall appellant producing two or three new contracts for his approval in one year.

Brown also wrote in the evaluation that he assigned numerous projects to appellant, including rate studies and rebate analysis, but she either failed to finish or never completed them at all. Brown wrote that there were serious errors in appellants rate studies and feasibility determinations, and customers called him a few times because of their confusion after meetings. Brown wrote that she needed to be a better listener than being a big talker without having a reason to talk, questioning and listening were the keys to sales, and she lacked those skills. Brown wrote her work product was not satisfactory because she made personal phone calls and too many errands on company time and everything else.

Brown testified appellant was a personable individual but she had been promoted prematurely and she was not qualified for the position. Brown conceded he never showed appellant the negative evaluation, and he never issued any written complaints about her work. Brown could not recall receiving any documentation about appellants college course work, but conceded appellant could have sent the paperwork to Blums office.

Robert Santistevan (Santistevan), an electrical services representative, testified he managed projects, easements, and claims, and worked with appellant on specific construction projects to convert a customers electric service from PG&E to the District. Appellant handled the marketing side, while Santistevan conducted the estimate and construction issues. Santistevan testified he once gave appellant a contact list of 15 to 18 potential clients in areas served by the District. Santistevan only received two contracts from the list, and did not know if she actually contacted everyone on the list.

Santistevan testified he was familiar with the problems appellant created with La Nitas restaurant. Rudy Perez, the restaurants owner, contacted Santistevan and said he was remodeling the restaurant and had an agreement with appellant that the District would provide the restaurants electrical service. Perez advised Santistevan the remodeled building was ready for the District to provide the electrical hook-up. Santistevan testified he had never heard about the project, and realized it was not financially feasible for the District to provide services to the restaurant because of high overhead expenses. Santistevan testified he apologized to Perez and the contractor because it was going to take longer for them to get back on PG&Es service list. Santistevan asked appellant about the situation with Perez and the restaurant, and appellant replied that she wasnt quite sure. She was hoping to try to serve them, something like that. Santistevan testified appellant should have discussed the matter with him before committing the District to provide service. Santistevan further testified appellant should have known the restaurant was outside the Districts service area and that it would have been difficult to hook-up the restaurant.

Santistevan testified he worked with appellant on a regular basis in the field, and she never grasped the Districts service rules for marketing purposes. When appellant provided him with information about a potential customer, the file was often incomplete and lacked necessary information. Appellant tried to be professional but he had to explain things to her several times. If a deadline was approaching, Santistevan often completed the task himself instead of waiting for appellant to perform the work.

Isaias Franco (Franco) testified he joined the District in May 2003, as the manager of key accounts and public purpose, and reported directly to Brown. When he joined the District, he initially worked with appellant and she introduced him to customers, showed him the territory, and they conducted customer meetings together. Franco testified appellant never took notes at meetings, she was not prepared for customer meetings, she could not answer questions or make recommendations to customers, and he had to take over a meeting for appellant with Castle Air Museum, even though she set up the meeting. Franco testified that on three occasions, he asked appellant to prepare rate comparison reports but she failed to do so. When Franco asked her about specific reports, appellant said she would get back to him but she never did.

Franco testified he gave appellant several projects to complete, including updating the business contact list and the public benefit funds activity list. Franco gave appellant specific instructions on how to accomplish the tasks, she failed to perform the work, and he had to ask another employee to finish the work. Franco realized appellant lacked any experience using or creating Excel spreadsheets or even doing any work with computers, and that he could not depend on her to complete any work involving computers.

Franco testified he advised Brown of his experiences with appellant. At least three times, Franco advised appellant to take the initiative and ask Brown if she could obtain computer training. Franco even provided her with a list of local schools and tuition costs, but [n]othing came out of that and that never happened.

Franco testified that cell phones were a problem with appellant, whether it was her business phone or most of the time it was her personal cell phone, that cell phone will ring constantly every minute of the day when she was in the building. Appellants cell phone was very loud and distracting to Franco, and he always knew when she was in the building because it would constantly ring, but he never heard other employees cell phones. Franco asked appellant to lower the cell phone tone a couple of times because it was very distracting, but she never did. On other occasions, however, it would be difficult to find appellant, even though all employees were supposed to mark their status on a board in the office, as to whether they were in or out, but appellant was always the person it was hard to locate and she would not check-out on the board.

Franco also testified about daily incidents when appellant would sneak into the rear of his cubicle and either cover my eyes or she will just come in and startle me when I was doing some work, and many times I told her that needed to stop right away, that it made me uncomfortable and I did not like it. And it did not make any difference to her. It was a constant, you know, coming behind my back and always distracting me. Appellant sat on the corner of his desk many times without his permission.

On one occasion, Franco and a customer were leaving the office for a meeting, and appellant whistled at me like a construction worker but Franco ignored her. When Franco returned from the meeting, he advised Brown about the incident, and confronted appellant about her unprofessional and unethical behavior. Franco asked if she was whistling at him. Appellant very proudly said she wanted his attention. Franco said that was not the appropriate way to get his attention. Appellant did not apologize and seemed surprised that he confronted her.

Garith Krause (Krause) testified he was the Districts general manager and chief executive officer, and supervised Brown and another assistant manager. Krause knew appellant had performed an adequate job as a meter reader, she moved into finance as a file clerk, and there were no complaints about her performance in those positions.

Krause testified he helped appellant obtain her promotion as a customer account representative in July 2002. Price had been in customer service and planned to retire, but he wanted to add another support person in his department and recommended appellant. Krause testified he worked with Price and appellant to help her get the new position in the Districts customer service division. Appellant had been reading meters for the district for a period of time and had gotten to know Roy, I think, as part of that process working with Roy and the customers, and so Roy thought that [appellant] would be a good choice for that position. Roy was [appellants] advocate, and I think Roy spent quite a bit of time working with her as a meter reader for the district.

Krause testified Price drafted the job description for the customer account representation, including the educational requirements for at least an AA degree. Krause knew appellant did not have an AA degree at that time.

Q. And so was there a requirementwell, I guess you were a part of her appointment or approval of her for that position?

A. Roy [Price] and I worked closely together to work [appellant] through the appointment process or promotion process, and one of the difficulties we had in bringing [appellant] to that level was the education issue, and the general manager at that time, Ross Rogers, basically said or told me that, you know, we really need to make the education thing work here, and he agreed that if we could get [appellant] to agree to finishing her AA degree, I believe the time period was like a year, that Ross [Rogers] would agree with the appointment.

Q. Was that one year to complete a condition of the promotion?

A. Yes, it was.

Krause testified he was told appellant already had enough college credits such that she could complete her AA degree within a year. But we wouldnt have expected her to do something that was unreasonable. Krause testified that prior to approving the promotion, he received a summary from appellant as to her existing educational credits and how many she needed to finish, and we even worked on a schedule of what was remaining and thought it could be done in a period of about a year. He also received a memo from Price, that appellant planned to complete her AA degree over the course of two semesters and one summer class.

Krause testified appellant was promoted from a much lower position to a job which brought her ahead of many other people in the organization. We did not really expose this position to other people, and because we were doing this we felt we really needed to ask [appellant] to meet the requirements of the job description to justify the elevation. Krause heard rumors that other employees were upset about appellants promotion.

Krause testified Brown became appellants supervisor in August 2002, just after she received the promotion. Within three months, Brown advised Krause of his general concern about appellants abilities to serve as a customer service representative. Krause encouraged Brown to work with appellant and see if we could, you know, bring her along. Based on Browns concerns, appellant was sent to a training seminar on the electricity industry, about general language things and this is a transformer and this is a switch kind of course, and a course on writing business letters.

Krause testified he received complaints about appellants work after she received the promotion. Krause testified he received a telephone call from a woman with Grocery Outlet, who said she requested information from the District about switching electrical service but never received any follow-up contacts. Krause learned that Grocery Outlet was appellants account. Krause testified he was personally contacted by Tom Clendenin, a contractor, who said he was trying to use the District to provide electrical services on an airport project, and he was having trouble getting information. Krause also passed the complaint to Brown, and learned Clendenins project was also appellants account.

Krause testified that Brown advised him that he spoke with appellant about various problems in her job performance, several times within the year. Brown also advised Krause that he attended customer meetings with appellant, and that customers had not been impressed with her performance. Krause testified that [o]ver a period of time, he agreed with Brown that appellant could not perform the job. Krause and Brown consulted with Blum, as to whether there were alternative positions for appellant within the District, and also about the termination process if it should come to that. Krause testified they made an effort to find an alternative position for appellant within the District, but were unable to find a satisfactory job. [W]ere not a large organization and so the decision ultimately was to terminate. Krause testified the decision to fire appellant was made about four to six weeks before she received the notice in September 2003. That decision was made by Krause, Brown, Blum, and Ross Rogers, who was general manager at that time.

Krause testified he drafted a cell phone policy for the Districts employees and asked them to leave all cell phones, business and personal, outside of meetings because it was disruptive, but there was more than one person who violated the policy.

Robert Blum (Blum), the Districts director of administrative services, testified he handled personnel and disciplinary actions. Blum had known appellant during the entirety of her employment. Blum testified that when appellant was promoted to her new position in July 2002, she was advised that she had to earn her AA degree within a year. In August 2002, Blum reminded appellant that she had to complete the educational requirements for the job and the personnel department did not have information about that yet.

Blum testified appellant had participated in discussions about her performance with Blum and other staff members on numerous occasions in the weeks before the termination. Blum testified that management officials considered trying to find another position for appellant in the District instead of firing her. There had been an opening for a cashier/clerk position, but it was filled at the time the termination decision was made, and there were no other positions at that time. Blum conceded there were no prior disciplinary actions or counseling memos in appellants personnel file.

Blum testified that appellants division had been in a different building and he usually did not see her every day. As of November 2002, the entire staff moved into the same building. Blum testified that it was not unusual for him to see appellant arrive at work before 8:00 a.m. Blum spoke with appellant prior to 8:00 a.m. on September 3, 2003, and notified her of the termination.

Steve Dunn (Dunn), the Districts assistant manager, testified appellant had been the Districts meter reader and then started working with Price. While appellant still worked for Price, Dunn constantly received feedback from the engineers that appellant was not giving them the information they needed to make rate study comparisons. Dunn spoke to Price about the complaints, and Price said he was working with her.

Dunn testified he was surprised when appellant moved into a marketing position because she didnt seem to have a technical grasp of what was involved for even simple residential projects, such as meter locations and existing facilities at work sites. Dunn explained appellants new job required her to search for new business prospects and customers, start a project folder, and obtain the information to determine the feasibility of a project. Dunn did not believe appellant signed up many new customers. Dunn testified Brown advised him there was a definite problem with appellant, and informed him about appellants problems with La Nitas restaurant. Dunn also spoke to Santistevan about his problems working with appellant.

Jason Grace (Grace), an electrical engineering specialist, testified he worked with appellant on a project at St. Patricks Church. Grace needed particular information about the project that was not complicated, and he gave appellant detailed instructions as to what he needed. Grace testified appellant did not appear knowledgeable about the electrical industry or the components of electrical systems. Grace testified it took nearly a year and a half to get the necessary information from her, and the project was delayed as a result. In September 2001, Grace spoke to Price about the delay, and Price said hes got her doing a lot of things, shes really busy. So kind of lay off of her. So thats kind of where that ended. Grace also spoke to appellant, who said that she was waiting for the church to fax an application back to her. A few weeks later, appellant provided only part of the necessary information, but Grace still could not finish the project. In January 2002, Grace began the paperwork himself and appellant finally finished it.

Grace testified that after Brown became the supervisor, he regularly saw appellant in Browns office for meetings at least a couple of times a week. Grace testified he regularly attended pre-construction meetings with appellant and other staff members at job sites and in the field. Appellant frequently stepped away from the meetings to answer her cell phone, whereas other staff members turned off their phones during meetings. Grace could not recall appellant taking notes or participating in these meetings. Grace regularly heard appellants cell phone ring in the office during working hours, the ring was annoying, you could pretty much gauge where she was at by the cell phone ring, and she would sometimes answer the phone with, Hey, girl.

Grace testified appellant occasionally asked for his assistance on projects, but her requests were not professional and [i]t was usually a whine and a whining type of a thing. When appellant entered Graces cubicle, she failed to respect his space and would just get close and kind of touchy feely when she was talking, and it just seemed best to me to keep a little bit of space. So I did. Grace never said anything to her but just turned his chair around.

Jay Hoag (Hoag) worked in the Districts engineering department and supervised daily operations. He worked on the Calvary Chapel project with appellant. Hoag testified appellant passed along information to him in a timely manner, but there were problems about an easement line. Hoag and appellant attended a meeting with the churchs pastor about the easement issue, and Hoag did most of the talking. Hoag testified to his impression that appellant did not know a whole lot about electricity. Hoag believed appellant was still in training.

Hoag testified he also worked with appellant on the Water Mill Express project, and there were delays in the application process. Hoag did not press appellant for the information but instead consulted with Santistevan about handling the application. Hoag testified that he frequently saw appellant in Browns office for meetings, about half a dozen to a dozen times over a couple of months. In a couple of the meetings, Brown looked agitated and did not seem happy.

Jill Ayala (Ayala), a department secretary for Brown and Krause, testified she worked with appellant on the Districts presentation at the fair. Ayala testified appellant was not proficient in using Power Point, Excel, or other computer programs. Ayala repeatedly showed appellant how to use various computer functions, but then when the need would come up again, I would still be asked to do it.

Ayala testified she received one complaint about appellant from Dante Migliazzo, who owned a local dairy. Migliazzo saw Ayala at a school event and he asked her, What kind of stupid idiots do you have working for you? Migliazzo said the District lost his account because of appellants lack of follow-up and knowledge. Ayala advised Brown about the conversation, and Brown called Migliazzo the next morning.

Ayala testified she regularly saw appellant in Browns office. Ayala testified appellant could not complete her work and it was delegated to Ayala. Ayala advised Brown and Krause that she was annoyed about the assignments because I didnt think it was fair that I was doing the work from a position that I felt was higher level, higher paid, and I didnt think it was fair. Ayala testified that after appellant was terminated, she was asked to reorganize the client files and discovered the files were missing documents and not in alphabetical order.

Appellants Witnesses

Roy Price was appellants primary witness. He had worked for both PG&E and the District, and served as the Districts marketing service manager for electrical services until his retirement. In January 2000, appellant started to work for Price based on a coworkers recommendation that she had demonstrated her skills on the financial side and should move into the electrical side of the office. Price started a training program for appellant, and testified appellant had the skills to meet people, listen to their needs, and obtain feedback. Appellant was very eager to work on all types of projects, such as meeting with commercial customers on the weekends and evenings.

Price testified he never received any complaints about appellant from any existing or potential customers, and received a complimentary letter about her work from Castle Air Force base in July 2001. The customers complimented appellant on her enthusiasm and ability to find solutions to their problems. Price only recalled general complaints from customers about not getting service as quickly as possible, and that goes on forever with both the District and PG&E.

Price testified the District created a position for appellant and he wrote the job description for the customer account representative. Price testified it was not really a new job, but he wrote the job description to give appellant more direction on what was expected from her. Price also wanted to raise appellants salary to a comparable level with PG&E.

It was still a very broad baseline because we were going to change it as she progressed, and so I set the system up for evaluation purposes so that wed have something to schedule for ... her future and where were at with it and the different points so that we could make the analysis on how she was progressing on it.

Price insisted the position was not really a promotion for appellant, but a continuance of her previous occupation and work ... because she was at the top of her pay scale in that range and the continuing work required that you change the levels in order to get the pay scale higher.

Q. So are you saying that when this customer account representative position or title was created, she just continued to perform the same duties that she had been performing?

A. That was her title at that time is my opinion.

Price testified the job description required an AA degree and preferably a bachelors degree. Price discussed the education requirements with appellant and what was expected of her, knowing that she didnt have her AA degree yet, although we knew that it was somewhere close to having one. So this was inset in for the performance of the job for anybody else. In [appellants] case we were looking at her skills in promotion and trying to match her with the base skills of PG&E which was my most familiar portion of account reps.

Q. What if anything did you tell [appellant] about when she had to get her AA degree?

A. The only thing wed set up at that point is that it was necessary to continue to do that to meet the standard and she needed to do it in a timely manner. And we met with Garith [Krause] and Ross [Rogers] and Bob Blum, I did, with the three of them, and we discussed that and set these standards for it, and she was going to continuethere was no time limit set for it, but she was going to continue to do this without dropping out a semester or anything. She was going to make a commitment to continue it until it was finished. [][]

Q. Did you ever communicate to [appellant] that there was no time limit to get her AA but that she would have to keep working on it?

A. Yes. We talked about that on several occasions. I had advised her even to go to the college and talk to her counselor there to set up a program, you know, similar to the workI mean the job description in order to give her a direction on how to accomplish that in the shortest period of time.

On cross-examination, however, Price conceded that appellant sent him a memo on June 13, 2002, about her educational requirements, that she was scheduled to receive her AA degree in the spring of 2003, and planned to pursue a college degree in business. Price conceded he sent a copy of that memo to Krause. Price insisted, however, that appellant was never given a time limit to earn the AA degree when she met with appellant, Krause, and Ross Rogers, the Districts general manager. Price conceded that appellant was expected to receive training on certain electrical issues to bring her to those points. Price believed appellant had basic computer skills on Word and Excel, and had reviewed her spreadsheet work in 2000.

Price testified he never received any complaints about appellants work through his retirement, but recalled discussing appellants cell phone use with other District personnel because of the high amount of minutes on the billing statements. Price learned she was working with lots of people in the water division, performing public relations work with the District for the fair, and working for exhibit boards for the fair and things like this. I told her its not appropriate for that in the eyes of the district at this time and, you know, you should stay in the water side. It was kind of keep electric and water side separate at this point.

Price admitted Santistevan complained about appellants performance. Price separately talked to Santistevan and appellant about their problems, but believed the issues were not serious and more of an attitude issue. After his retirement, Price spoke to Steve Dunn about appellants evaluation, and advised Dunn that she was still in the training phase, she was completing her degree, and she needed more training classes.

Jeff Tassey (Tassey), appellants counselor at Merced College, testified about appellants education status. As of spring 2002, appellant was working toward an AA degree. Tassey testified appellants temperament was such that what she would do is try to overload herself, and we set down a plan of attack to complete her degree. Tassey explained that most people who are parents and work full-time take one or two classes each semester, but appellant wanted to try three classes. Appellant told Tassey that she was working towards an AA degree and ... she worked for [the District], and that upon completion of that it would be looked favorably upon. And so we attempted initially to do a very aggressive quick AA plan, but it wasnt working out. It was my understanding upon graduation that there would be a promotion, you know. I mean the words I think I heard were looked upon favorably.

Tassey testified their plan was for appellant to finish her AA degree by spring 2003. Tassey explained, however, that appellants course plan was subject to change because appellant set out a very aggressive plan for a mother of two working full time. She had completed three required coursesart, math, and musicin the fall 2001, spring 2002, and summer 2002 semesters. In the spring of 2003, appellant only took one class for her history requirement, based on Tasseys recommendation to reduce her class load, because at that time we were doing too much. Tassey conceded that required courses in math, economics, and computer sciences were also available that semester.

Sharon Gotcher (Gotcher), a senior accountant with the District, testified she initially hired appellant to serve as an account clerk. Appellant handled telephones and accepted customer payments. Appellant subsequently became a meter reader and Gotcher had less contact with her.

Gotcher testified Brown never contacted her about finding another position for appellant within the District. Gotcher testified that in the late spring or early summer of 2003, the District authorized Gotcher to fill a new cashier/clerk position. In May 2003, Gotcher hired a Spanish-speaking woman to fill the job because the District needed the Spanish speaking at the time, but Gotcher let that person go in July 2003 because she could not handle the job. Gotcher started to look for another cashier/clerk and filled the position in September 2003, around the middle of the month. At the time of the September 2004 administrative hearing, the cashier/clerk position was open again because the previous occupant left.

Appellant also presented several witnesses who had been her customers at the District. Cheramy Bryncat, owner of the Grocery Outlet, testified appellant visited her store four to five times about becoming a customer, appellant was very helpful, they discussed switching from PG&E to the District, and appellant performed a rate comparison study. Bryncat testified she decided not to switch to the District because PG&E charged high exit fees, and Bryncat never complained about appellants performance to anyone at the District.

Tom Clendenin, a contractor, testified he worked with appellant on a project at the Merced airport industrial park, appellant regularly maintained contact with him, and there were delays only because the city did not know whether PG&E or the District covered that particular area. Clendenin never complained about appellant to anyone at the District, but recalled that Brown might have apologized to him about how long it took for the city to decide which company could provide service.

Robert Isaac, the administrator of Grace Home skilled nursing facility, testified he worked well with appellant when his business considered switching from PG&E to the District. Brown accompanied appellant to one meeting with him, Isaac never complained about her work, and he found her very helpful.

Andrew Clark, the site manager at Castle Air Force Base, testified he worked with appellant on the billing process for the various offices and businesses that were now on the base. Appellant was very helpful and Clark had no problems with her work. Brown accompanied appellant to one meeting, but Clark never complained about her. Clark was so pleased with appellants work that in July 2001, he sent the District a letter and complimented appellants work at the base.

Debra Perez, who owned La Nitas restaurant with her husband, testified she regularly met with appellant about having the restaurant switch from PG&E to the District. Ms. Perez testified appellant never made any promises about providing service and appellant sent them a rate comparison report. Ms. Perez spoke to her husband about the situation, and testified they never had any problems or complained about appellant. Perez testified the restaurant was being remodeled and appellant was not responsible for any construction delays. They decided to stay with PG&E because it was too expensive to switch electric providers.

Jean Astorino, the executive director at Castle Air Museum, testified she worked with appellant in the summer of 2003 about switching to the District. Appellant set up an appointment with Astorino and Isaias Franco. The meeting went smoothly, Astorino was satisfied with appellants information, and Franco did not take over the meeting. Astorino never received any more information from the District, and learned appellant had been terminated.

Appellants Testimony

Appellant testified that she initially worked as a cashier/clerk, and then moved to the finance department to accept customer payments and read meters in the field. In 2000 or 2001, she was redirected into a clerical position, as a customer service representative in the electrical department, but she continued to read meters at the same time. So like two weeks I was in the office learning, you know, the clerical field of the electric department rates and things, and then two weeks out I was out reading electric meters and gas meters.

Appellant testified that at some point in 2002, Price said her title was going to change to customer account representative and her salary would increase, but there was no change in my job. She did not receive any additional training after her job description changed, aside from attending school in the evenings to earn her AA degree. Appellant testified that she only spoke with Price about her education, and Price said the new position required an AA degree and to go to school and get that, and so that is what Ive been doing. Appellant further testified there were no time limits told to me or given to me in writing. Price merely advised appellant to continue her education and take the required courses to earn her AA degree, [s]o that was all that was put in my plan of a