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Filed 5/2/17 Cheatham v. State Personnel Board CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
BRANDY CHEATHAM,
Plaintiff and Appellant,
v.
STATE PERSONNEL BOARD,
Defendant and Respondent;
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Real Party in Interest and Respondent.
C080522
(Super. Ct. No. 34-2014-
80001990-CU-WM-GDS)
Plaintiff Brandy Cheatham filed a petition for a writ of mandate that sought to
overturn a decision of defendant State Personnel Board (Board), which had sustained her
dismissal from employment with real party in interest Department of Corrections and
Rehabilitation (Department). The trial court denied the petition.
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On appeal, plaintiff contends she did not have any notice that the “discourteous”
treatment of a coworker or member of the public could be the basis for dismissal; the
Board improperly considered uncharged conduct in rendering its decision; and dismissal
was excessive punishment for her misconduct. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As the trial court noted, plaintiff did not contend there were any erroneous factual
findings in the decision of the Board, and conceded that substantial evidence otherwise
supported the findings of misconduct. While we review the Board’s decision de novo on
appeal (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632
(Kuhn)), plaintiff does not challenge the trial court’s factual recitations in its ruling. We
thus draw our account from that source without needing to dive into the voluminous
administrative record.
Plaintiff began her employment with the Department in June 2007 as a parole
agent. The misconduct stems from a “tumultuous” romantic triangle involving a fellow
parole agent and his former long-term inamorata, a county probation officer.
Plaintiff and the parole agent began their relationship in late 2010. “At some point
she felt that [his] communications with [the probation officer] were inappropriate,” and
sent the latter a vulgar and threatening text message in April 2011.
Plaintiff and the parole agent had a physical altercation at her apartment in August
2011. A few days later, plaintiff went to the parole agent’s apartment, accessed his social
media account, replaced his profile picture with that of the probation officer, and posted a
profane message that explained why the parole agent was “a bitch” (capitalization
omitted).
On the following day, the dispute between plaintiff and the parole agent raged at
the workplace. He took her backpack, then she took his backpack and cell phone and hid
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them. Eventually, they returned each other’s property. They confronted each other later
in the day in her office; in the course of the argument, plaintiff called out to a passing
third party to remove the parole agent from her office. After an admonishment from the
third party, the parole agent left.
After regular work hours, the parole agent returned to plaintiff’s office, hands
clenched by his side. Plaintiff drew a fixed-blade knife from her utility belt and called
for assistance. The parole agent grabbed her cell phone and started to leave. Plaintiff
followed and grabbed at his backpack, which he released from his shoulders. She went
after him to retrieve her phone. He dropped his phone, which she grabbed and then ran
back to her office. He followed, and they eventually returned their possessions to each
other.
The parole agent drove to plaintiff’s apartment and broke in through a window
before she arrived. She found him hiding in the shower.
A few days later, the parole agent sent plaintiff “a sexually explicit text message.”
Plaintiff went to his office and in front of his officemate stood over his desk while calling
him “a ‘little punk ass bitch,’ ” and claimed she could play havoc with his career. Later
that day, plaintiff sent a series of vulgar text messages to the probation officer repeating
her threats about ruining the parole agent’s career. The probation officer texted the
parole agent, stating that she did not want to get in the middle of this, but if plaintiff sent
her one more text or did anything to ruin the parole agent’s career she would seek a
restraining order. The parole agent forwarded this to plaintiff, who predictably responded
with an irate text, and then called the police to report the parole agent’s burglary of her
home. Plaintiff also called their supervisor to report the break-in and to having a
relationship with her fellow parole agent. The Department dismissed the pair. Plaintiff
and the parole agent later married.
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The Board’s hearing officer issued a proposed decision in February 2014, in which
she concluded plaintiff’s misconduct violated various provisions of Government Code
section 19572: inexcusable neglect of duty (id., subd. (d)), discourteous treatment of the
public or other employees (id., subd. (m)), willful disobedience (id., subd. (o)), and other
failure of good behavior causing discredit to the Department (id., subd. (t)). The hearing
officer did not sustain charges of insubordination or dishonesty. (Id., subds. (e) & (f).)
Because she characterized the latter as the more serious charges and found mitigating
factors (the absence of prior misconduct and a low likelihood that the misconduct would
recur), the hearing officer modified the discipline to a suspension of 18 months without
pay.
The Board declined to adopt the proposed decision outright, requesting additional
argument regarding the appropriate penalty for the proven misconduct. It then adopted
the proposed factual and legal findings, stating it was beyond dispute that this “proven
behavior is not only unacceptable but falls squarely within the type of conduct[] the
Board has traditionally considered subject to discipline.” However, it rejected the
proposed penalty of suspension without pay. The Board pointed out that peace officers
are held to a higher standard of conduct, and concluded that “emotional stressors” were
not an excuse for the misconduct (“[a] personal crisis does not excuse inexcusable
behavior”); given that the misconduct took place over several months, there was also an
appreciable likelihood of recurrence. It thus sustained the Department’s dismissal of
plaintiff.
Plaintiff filed her petition in December 2014. After the trial court issued a ruling
in July 2015, plaintiff filed a notice of appeal in September 2015. The trial court entered
its judgment in November 2015, incorporating the earlier ruling. We will therefore deem
the premature notice of appeal to have been filed immediately after the subsequently
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entered judgment. (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955,
959.) Preparation of the record and briefing were completed in December 2016.
DISCUSSION
The initial disciplinary authority is the appointing agency. The Board is vested
with the authority to review the appointing agency’s action, in the course of which it has
the power to weigh evidence and determine facts. On the question of discipline, it has
three bases on which to modify or set aside the appointing agency’s action: insufficient
evidence, justification for the employee’s conduct, or the insufficiency of the nature of
the misconduct to support the discipline imposed. (Kuhn, supra, 22 Cal.App.4th at
p. 1632.) In our de novo review of the judgment, we apply the standard of abuse of
discretion to the Board’s determination of discipline. An abuse of discretion is
established only where the Board has not proceeded in the manner required by law,
evidence does not support the findings, or the findings do not support the decision.
Where reasonable minds can differ, we may not substitute our evaluation of appropriate
punishment for that of the Board. (Department of Parks & Recreation v. State Personnel
Bd. (1991) 233 Cal.App.3d 813, 831-832 (Parks & Recreation).)
1.0 Plaintiff’s Claim of Lack of Notice
Plaintiff contends she was not given any specific notice in the Department’s
regulations or in the notice of adverse action that her conduct—which she terms as
“discourteous treatment” of her present husband and the probation officer—would be
sufficient of itself to warrant dismissal for a violation of the four Government Code
provisions listed in the notice of adverse action and sustained in the Board’s decision,
without a violation of the more serious grounds that the hearing officer dismissed
(insubordination and dishonesty). Referring to nine levels of discipline and a matrix
establishing the points assigned to various causes for discipline in the Department’s
operations manual (attached as an exhibit to her brief in the trial court), plaintiff
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apparently would have us determine as a matter of law that her conduct in the present
case was sufficient to warrant only a level 4 penalty (a suspension without pay for a
maximum of 36 days), and therefore she could not have had notice that she was putting
her job at risk. This ignores the caveat in the manual that the Department “is not required
to impose an identical penalty in each case because there are a variety of factors which
may influence the [decision] to take stronger action in one case than it does in another.”
(Department Operations Manual, § 33030.17.)
On its face, this is a curious argument. Essentially, plaintiff is claiming the right
to misbehave as long as she reasonably believes it will not result in getting fired under
her agency’s disciplinary criteria.
In any event, plaintiff does not give any cogent explanation for according this
internal procedural manual primacy over the principle of law that misconduct resulting in
harm to the public service can warrant dismissal, particularly where a peace officer is
concerned (who is held to a higher standard of conduct), in light of the circumstances and
the likelihood of recurrence. (Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d
395, 398-399, 400.) Plaintiff is charged with notice of this principle. We therefore reject
this argument.
2.0 The Board Did Not Base Its Decision on Uncharged Conduct
In one paragraph of its decision, the Board discussed whether plaintiff’s conduct
constituted dishonesty. However, it did not overturn its hearing officer’s decision to
dismiss this count. In a throwaway argument of slightly more than one page, plaintiff
asserts “it is without doubt the Board considered its finding [of dishonesty on plaintiff’s
part], and therefore [that plaintiff was] not credible, even if its decision claimed such a
finding was not necessary to its decision.” (Italics added.) She argues this was a finding
on “conduct not charged” for which she did not have any notice, which “infected” the
level of discipline imposed. (Plaintiff also references the trial court’s statement that her
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less-than-forthright conduct also constituted harm to the public service, but in light of our
de novo review of the judgment this is an immaterial circumstance that we do not
consider any further, as we limit ourselves to the sustained charges on that point.)
Plaintiff’s sole supporting authority is inapposite; Brown v. State Personnel Bd.
(1985) 166 Cal.App.3d 1151 involved the application of laches to two of three charges of
misconduct against an associate professor, which had not precluded the grant of tenure
despite the university being aware of them (id. at pp. 1156, 1159-1160), and the
insufficiency of the remaining charge to support dismissal (id. at p. 1163). In ruling that
the employer could not amend its notice of adverse action to omit the two grounds after
the imposition of discipline (id. at pp. 1164-1165), we observed in a footnote that this
would violate the employee’s right to notice of the legal grounds and particular conduct
supporting proposed discipline; if aware that the dismissal was to be based on a single
incident this “might have entirely altered the cast of Brown’s case” (id. at p. 1164, fn. 5).
Manifestly, that is not plaintiff’s situation, where from the start the question of dishonesty
has played a role in the overall evaluation of penalty and the cast of her case.
This argument borders on the frivolous. In determining whether dismissal is
appropriate, the Board may even consider postdismissal evidence that obviously is not
contained in the original notice of adverse action as part of its broad power to determine
appropriate discipline. (Parks & Recreation, supra, 233 Cal.App.3d at pp. 828-830.)
Moreover, the Board’s musings on whether plaintiff’s conduct would constitute
dishonesty were not any sort of finding. They were in fact dicta, as the Board did not
overturn the dismissal of this count (“in light of the other findings it is unnecessary to
disturb [this] conclusion”). It is possible this paragraph might reflect a permissible
evaluation of plaintiff’s credibility in light of the undisputed facts in the record, although
plaintiff does not direct us to any part of the Board’s decision where her credibility was in
fact expressly determinative. We will not presume, as plaintiff would have us do, that it
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is “without doubt” that the Board impermissibly rested its penalty determination on a
dismissed ground, particularly where this was not part of its express reasoning on the
issue of discipline.
3.0 The Board Did Not Abuse Its Discretion in Modifying the Discipline
We come to the only true issue in this appeal. Plaintiff contends dismissal is not
warranted because she did not have previous or subsequent incidents of misconduct, she
was emotionally distraught and provoked by her now-husband, the misconduct had only a
minimal harm to the public service, and the circumstances do not support a conclusion
that the misconduct was likely to recur.
Plaintiff’s arguments, however, attempt to put the best spin on the evidence that
was before the Board. This is nothing more than rearguing her case. It falls far short of
establishing that the evidence supports only a lesser degree of punishment. As a peace
officer representing the Department in her contacts with the outside world, she behaved
in an entirely uncivil manner toward a peace officer in a different agency over a period of
several months, which would reflect badly on the Department in the probation officer’s
eyes (and anyone she told about the incident) and dragged coworkers into her office
disputes, distracting them from their work with the public. Her hack into the social
media account would have been communicated to everyone in the public who was a
“friend” with her now-husband, who would have needed to explain the source of the post
(calling into question for these friends the Department’s choice of employee peace
officers). As for the likelihood of this reoccurring, the Department is not compelled to
take a chance on an employee who is unable to maintain professional composure in light
of personal pressures, where she continues in a relationship with the person she claims
provoked her into it. At the very least, reasonable minds could differ on whether this
evidence established that dismissal was the appropriate level of discipline, and as a result
the Board’s determination does not constitute an abuse of discretion.
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DISPOSITION
The judgment is affirmed.
/s/
BUTZ, Acting P. J.
We concur:
/s/
DUARTE, J.
/s/
RENNER, J.