Carrasco v. State Personnel Bd. ( 2021 )

Filed 10/8/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JENARO CARRASCO,
Plaintiff and Appellant, E072892
v. (Super.Ct.No. CIVDS1514663)
STATE PERSONNEL BOARD, OPINION
Defendant and Respondent;
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Real Party in Interest and
Respondent.
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.
Affirmed.
Robert Lucas Law, Robert W. Lucas; Phillips & Rickards and Wendell Phillips for
Plaintiff and Appellant.
Alvin Gittisriboongul and Dorothy Bacskai Egel for Defendant and Respondent.
1
Nechelle L. Bixby for Real Party in Interest and Respondent.
Plaintiff and appellant Jenaro Carrasco worked as a parole agent for real party in
interest Department of Corrections and Rehabilitation (department) for five years. He
was then promoted to the position of special agent and was subject to a 12-month
probationary period. The department served Carrasco with a notice of rejection before
the end of the probationary period and stated six reasons for the rejection. Carrasco
challenged his rejection before defendant and respondent the State Personnel Board
(the board) and, when the board upheld his rejection, he petitioned the superior court for
a writ of administrative mandamus.
At the conclusion of the administrative and superior court proceedings, only two
of the reasons given for Carrasco’s rejection were found to have been supported by
substantial evidence. However, both the board and the superior court concluded
Government Code 1 section 19175—the statute that governs the board’s review of the
decision to reject a probationer—does not mandate reinstatement if less than all the
reasons given for the rejection are upheld. In addition, the board and the superior court
1 All further statutory references are to the Government Code unless otherwise
indicated.
2
concluded the department had not acted in bad faith when it rejected Carrasco.
Therefore, the superior court denied Carrasco’s petition.
In this appeal from the judgment denying Carrasco’s petition, we hold:
(1) section 19175, subdivision (d), does not require the board to reinstate a rejected
probationer if at least one of the reasons given for the rejection is supported by
substantial evidence; (2) the administrative record supports the board’s findings that
substantial evidence supported the two remaining reasons for Carrasco’s rejection; and
(3) the record supports the board’s findings that the department did not act in bad faith
when it rejected Carrasco. We affirm the judgment.
I.
FACTS AND PROCEDURAL BACKGROUND
A. Rejection of Carrasco During Probation.
After 20 years of service as a probation officer, in April 2008, Carrasco was hired
by the department as a parole agent. On July 31, 2013, he was promoted to special agent
within the Office of Correctional Safety (OCS) Special Services Unit. Carrasco was
subject to a 12-month probationary period for his new position, and he reported for duty
on August 1, 2013.
On June 23, 2014, the department served Carrasco with a “Notice of Rejection
During Probation Period.” The notice listed six reasons for Carrasco’s rejection: (1) he
failed to exit his vehicle to assist in a foot pursuit of an escapee in
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September 2013; (2) he failed to follow instructions during a tactical training exercise
conducted in January 2014, and he was discourteous and refused to follow instructions
from his supervisor; (3) he failed to follow instructions from his supervisor in
October 2013 to work on a “cold case” and neglected to “develop any investigative work
on the case” from the time of the instructions to February 2014; (4) he failed to timely
submit a report within six business days of a March 2014 arrest, falsified the report to
indicate it had been timely submitted, and failed to include necessary information; (5) in
April 2014, he failed to respond to “‘call-outs’” from his supervisor and a fellow agent
for assistance in capturing an escapee while he was on “‘call-out’” rotation, and he had
not previously submitted a request to be excused from “‘call-out’” duty; and (6) he failed
to follow a “verbal agreed-upon protocol” while attending an April 2014 meeting at the
Orange Police Department.
B. Administrative Appeal and Evidentiary Hearing.
Carrasco appealed the rejection, and an administrative law judge (ALJ) with the
board conducted an investigatory hearing on January 22, 2015.
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1. Reason 2: Simunition® training. 2
With respect to reason 2 for Carrasco’s rejection, the notice of rejection stated
that, during Simunition® 3 training conducted on January 25, 2014, he “failed to follow
instructions” from his instructors, special agents Mory and Marks, and he was
“discourteous when [he] refused to accept corrective suggestions” about his performance
during a room-entry exercise. The notice quoted a document entitled “Special Agent
Essential Functions,” which provides, inter alia, a special agent “[m]ust be able to accept
constructive criticism, feedback and use supervisory direction positively.” Finally, the
notice stated Carrasco “made excuses throughout this training session for not following
training procedures that [his] instructors exposed [him] to,” he was “argumentative with
[his] instructors when they provided constructive criticism and feedback,” and he “failed
to accept responsibility for [his] training mistakes.” All this “demonstrate[ed] [his]
inability to utilize supervisory direction positively by working toward improvement to
align [himself] with [the department’s] mission and OCS’s safety procedures.”
2 As explained further, post, by the time the superior court entered its judgment
and Carrasco appealed, only two of the reasons given for the rejection (reasons 2 & 4)
were found to have been supported by substantial evidence. Those are the only reasons
for the rejection that are at issue in this appeal. Therefore, we will only set forth the
evidence presented during the evidentiary hearing that pertains to those reasons.
3 Simunition® (simulated ammunition) is the brand name for nonlethal training
ammunition manufactured by the defense contractor General Dynamics. (Simpson v.
General Dynamics Ordinance and Tactical Systems-Simunition Operations, Inc. (N.D.
Ind. 2019) 429 F.Supp.3d 566, 571-572; see Moore v. Guthrie (10th Cir. 2006) 438 F.3d
1036, 1038.)
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Parole agent Lee was present during the training exercise. He testified that,
neither during the room-entry exercise nor during the “briefing after each scenario,” did
he observe Carrasco to be belligerent or hear him say anything he would characterize as
discourteous. When asked if he heard Carrasco “talk over” the instructors during the
debriefings, Lee testified, “No. I don’t know. No.” Lee explained he “was there” during
the training but he was not a trainee—he was one of the “role players” to “get shot [in]
the scenario,” and was not one of the agents “going through the houses.” When asked
again whether he heard Carrasco say anything discourteous, Lee answered, “I hardly left
that house. I was inside the house . . . preparing for each scenario.” Finally, Lee testified
he was not present “all the times” that Marks and Mory spoke to Carrasco.
Carrasco testified he had no conversations with Marks or Mory during the
training, and he did not say anything that could be characterized as discourteous.
Carrasco described the room-entry exercise, during which he kicked open a door and,
when it did not close all the way, he instinctively pointed his weapon at the door because
there might be someone behind it with a weapon. He told his team member, “check the
door.” Carrasco testified that, after the exercise, he was told he “should have rode [sic]
the door and come around the door and confront the subject” himself. This concerned
and confused Carrasco. “I asked if I come around and face the subject. I’m in the room
with him by myself with him and my gun’s pointing toward my team members. That’s
the only statement I made.” Carrasco denied that he said he “knew better or anything of
that nature,” or that he was “trying to be a know-it-all.”
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Marks testified the training exercise involved tactical officers entering buildings
and rooms under various dangerous scenarios. During the training, he became concerned
that Carrasco had difficulty grasping some of the concepts and procedures the course was
designed to teach. Marks tried to explain to Carrasco “how things needed to be done”
and “how we normally do them and what’s safe and what’s not safe,” by “making
corrections and whatnot.” Carrasco “appeared to be resistant” to correction. Marks and
Mory believed Carrasco had missed “a threat to the team that he didn’t address properly”
but, “when it was explained to him, he said that he didn’t believe he had done that. So
from there on it was somewhat of a no, I didn’t.” Because Carrasco was a new special
agent, Marks thought that if Carrasco “did something wrong, [he would] want to make
the correction. You can’t correct something if someone doesn’t believe he did something
incorrect.”
More specifically, Marks testified that, during the “room-entry” exercise, he
observed Carrasco encounter a person behind a door but, instead of “fully addressing it
where he wasn’t sure if someone was behind it,” he “yelled out for another agent to
address the threat” and “he passed the door.” According to Marks, this concerned him
because “[w]e always address threats as we encounter them. So if I’m the first person at
the front door and there’s a threat there, I have to address it. If I don’t, the person behind
me may get shot or hurt . . . .” Marks and Mory addressed their concerns about
Carrasco’s performance during a group “debriefing of the scenario.” They told Carrasco
that “he could have rode [sic] the door”—pushed his body against the door—“to make
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sure that person couldn’t come outside.” But, he “refused to listen” and “talk[ed] over”
them while trying to explain why he believed he had acted correctly during the exercise.
Rather than stop the class to further address Carrasco, Marks continued the class
while Mory “pulled [Carrasco] aside and spoke to him one-on-one.” Marks overhead
some of the conversation, and “it didn’t seem like [Carrasco] was ready to move on.”
When asked if Carrasco had been discourteous, Marks testified he was “somewhat
resistant to listening, is what I would say. Somewhat of I’ve been there, done that.”
Carrasco was not rude, and he did not use foul language. He “was defending what he
did” and “was saying he didn’t do what we said he did.” According to Marks, “we
couldn’t get to the corrective discussion because he said it never happened, and we
observed it to happen.”
In a March 12, 2014 memorandum to senior special agent Santos, Marks wrote
that, when Carrasco continued to talk over Marks and Mory and continued to insist on
explaining why he believed he had done nothing wrong during the room-entry exercise,
Marks explained to Carrasco “that he would need to follow training directives without
continually making excuses.” However, “[d]uring other scenarios, SA Carrasco made
additional excuses for not following the training procedures that instructors exposed him
to.” Based on his training and experience, Marks was of the opinion “Carrasco lack[ed]
the desire or ability to learn [OCS] policies and procedures” because he appeared to be
“unwilling to listen to constructive criticism given by multiple OCS instructors.” Marks
also opined “Carrasco was unable to accept any responsibility for training mistakes
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during the training,” and he was therefore “unable to work toward or display
improvement.”
2. Reason 4: Late and incomplete arrest report.
Reason 4 for the rejection stated that Carrasco failed to submit a report about a
March 26, 2014 arrest to Santos, his supervisor, by April 4. “Per standard operating
procedures, arrest reports are due within six (6) days of incident dates.” Carrasco
“falsified” the report to indicate he had submitted it on March 27, when in fact he
submitted it on April 9. The notice quoted a document entitled “Special Agent Duty
Statement,” which described the duty to prepare “lengthy, clear and concise reports”
during and at the conclusion of investigations. In addition, the notice indicated Carrasco
failed to include “the required elements” for an arrest report, and he failed to identify his
role as lead investigator in the report and during searches conducted incident to the arrest,
among other things.
When Carrasco was promoted to the position of special agent in August 2013,
senior special agent Moreno was assigned to train him. Part of the training included
“showing him what paperwork needed to be done for different arrests, different report
writing, different threat assessments, [and] different escapes.” Carrasco did not,
however, receive classroom training on report writing because the OCS academy had
been cancelled.
Santos testified he expects special agents under his command to submit reports
within six days of an incident. He testified the six-day rule is not found in the
department’s operations manual, but it “comes from minute meetings” when a special
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agent is hired and “it’s an office expectation[].” He described the rule as “a local
expectation,” “just instructions.” Santos testified he had specifically instructed Carrasco
to submit a report for the March 26, 2014 arrest within six days. “On the sixth day, he
kept saying that he didn’t have follow-up documents, and I sent it back for corrections.
He actually sent the report. When I finally got the report for—for review and correction,
I got it—it wasn’t sent to my office tech for rewrite and correction until April 9th.”
The report Carrasco submitted to Santos stated it was submitted on March 27, but
Santos testified he did not receive it after rewriting and correction until April 10 and,
therefore, the report was not timely submitted pursuant to his instructions. When asked
why it is important for arrest reports to be timely submitted, Santos testified, “For filing
with district attorneys, for office liabilities, for court purposes, and it’s also an office
expectation and protocol to have them in within six days.” In addition, Santos testified
that, because the arrest in question resulted in the seizure of cash, he would have
expected the report to have certain attachments, specifically, an asset forfeiture form and
a consent to search form. The rewritten and corrected report Carrasco submitted on April
10 did not have those forms attached to it, although he submitted them later, “well after . .
. the final draft. I had to keep requesting these forms to be submitted with the . . . report.”
Santos also noted inconsistencies in the report, such as Carrasco indicating he was in two
places at the same time. Finally, Santos testified the report omitted some information.
Carrasco testified that, in a meeting held in 2013, he “was made aware of” the
expectation that arrest reports had to be submitted within six days. And he acknowledged
that he submitted the report in question late and that it was incomplete.
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C. The Board’s Decision Upholding Carrasco’s Rejection.
In a proposed decision, the ALJ found substantial evidence supported reasons
1 through 5 for Carrasco’s rejection, but not reason 6, and it rejected Carrasco’s assertion
that the department acted in bad faith by rejecting him during probation. The board
adopted the ALJ’s findings of fact and determination of issues, and upheld Carrasco’s
rejection. The board later denied Carrasco’s petition for rehearing.
D. Petition for Writ of Administrative Mandamus and Superior Court
Proceedings.
Carrasco filed a petition for writ of administrative mandamus in the superior court.
In his briefs, he argued substantial evidence did not support the five reasons for his
rejection that were upheld by the board, and that the department had acted in bad faith
when it rejected him. In its tentative ruling, the superior court ruled substantial evidence
did not support reasons 1 and 3 for Carrasco’s rejection, but that substantial evidence
supported reasons 2, 4, and 5. During the hearing, the court stated its intention was to
adopt the tentative ruling but to only find reasons 2 and 4 (and not reason 5) were
supported by substantial evidence, i.e., to find that Carrasco resisted corrective
instruction (but not that he was discourteous) during Simunition® training (reason 2), and
that he failed to timely submit an arrest report (reason 4). The court directed the parties
to file supplemental briefs addressing whether it would be appropriate to remand the case
to the board for it to determine if the remaining two reasons were sufficient to sustain the
rejection.
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In his supplemental brief, Carrasco argued his rejection could not stand based
solely on the two remaining reasons, and the superior court should set it aside and remand
the case to the board for a new evidentiary hearing on reasons 2 and 4.
At the continued hearing, Carrasco argued his rejection was like “a table with six
legs around the perimeter as a foundation, and it needed to rely on that foundation to be
sustained.” Because the board and the superior court in its tentative ruling in
combination had “knocked out” four of those legs, the table would no longer stand. After
hearing additional argument, the court ruled it would be appropriate to remand the case to
the board for further consideration.
In its order, the court: (1) granted the petition and set aside the board’s adoption
of the ALJ’s decision; (2) found that reasons 1, 3, and 5 for the rejection were not
supported by substantial evidence, but that reasons 2 and 4 were supported by substantial
evidence; (3) directed the board on remand to determine two issues: (a) whether
“Carrasco should be restored to his position” pursuant to section 19175 because four of
the six reasons for his rejection had been rejected, and (b) “whether the two surviving
reasons for rejection were made in bad faith” within the meaning of section 19175; and
(4) it retained jurisdiction to review the board’s new decision.
E. Board Proceedings on Remand.
Upon receiving the superior court’s order, the board set aside its adoption of the
ALJ’s proposed order, remanded the appeal to the ALJ to conduct further proceedings
and issue a new proposed decision, and directed the parties to file supplemental briefs. In
his supplemental brief, Carrasco once more argued “the foundational underpinnings for
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the rejection have now been rejected,” and “the two remaining charges cannot support the
rejection and it must be overturned.” In addition, he argued that, because four of the
reasons had been found to lack evidentiary support, the ALJ should conclude the
department acted in bad faith when it rejected him.
In its brief, the department argued the two remaining reasons were sufficient to
uphold the rejection and that, notwithstanding the fact the board and the superior court
had rejected four of the six reasons given for the rejection, it did not act in bad faith.
During the hearing on remand to the ALJ, Carrasco argued that, considering four
of the six reasons for his rejection had been found to be lacking in evidentiary support,
the remaining two reasons were “even more suspect.” Counsel for the department argued
the fact the superior court had found three of the reasons for rejection were not supported
by substantial evidence was not “indicia of bad faith. This is not a numbers game.” With
respect to whether the two remaining reasons were sufficient, counsel again argued “it
isn’t a numbers game.” The two remaining reasons for the rejection showed Carrasco
was “a bad fit” for his position “and he cannot perform at this job.”
In a proposed decision, the ALJ concluded Carrasco’s rejection during probation
was supported by substantial evidence, and the rejection was not motivated by fraud or
bad faith. In its factual findings regarding reason 2 for the rejection, the ALJ found that
during the training exercise, an instructor observed Carrasco enter a small room, discover
a person behind a door, then walk out of the room and ask a team member to confirm
what he had seen. The other team member entered the room, discovered the person
behind the door, “and immediately address[ed] the threat.” Because Carrasco “did not
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immediately address the threat when he discovered it,” the instructor believed he had
made a “tactical error” that needed correction. But, when the instructor tried to discuss
the issue with Carrasco, he denied having made a tactical error “and insisted he did
nothing wrong.” When the instructor reminded Carrasco that he needed to follow
training directives “without making excuses,” he “continued to deny wrongdoing, and
was not receptive to the training.”
And in its factual findings regarding reason 4 for the rejection, the ALJ found
Santos had directed special agents under his supervision to complete and submit arrest
reports within six business days of the arrest, and Carrasco became aware of that
directive in 2013. The directive from Santos “was not in writing” and was not “set forth
in [the department’s] policy manuals.” Carrasco was the lead investigator for the arrest
on March 26, 2014, yet he did not submit his report for rewriting and correction until
April 9, four days late. Moreover, the ALJ concluded Carrasco’s report contained many
significant omissions.
The ALJ stated the first issue to be determined on remand from the superior court
was whether the two remaining reasons for Carrasco’s rejection, “standing alone, support
[his] rejection during probation.” The ALJ concluded, “they do.” With respect to
reason 2, the ALJ found Carrasco’s “resistance to training on matters that may affect his
safety, and the safety of his fellow peace officers, is not a trivial event and legitimately
calls into question [his] suitability to work as a [special agent].” With respect to reason 4,
the ALJ noted the timely completion and submission of accurate arrest reports “is an
important component of a [special agent’s] job duties.” Failure to timely submit a
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complete and accurate arrest report might jeopardize the prosecution of criminal suspects,
and the department “has a legitimate concern that [Carrasco] is not suited for a [special
agent] position when [he] demonstrated his inability to timely submit a complete crime
report that contains all relevant and important information.”
The ALJ also concluded Carrasco had not demonstrated that the department had
acted out of bad faith when it rejected him during probation. The department had on
three occasions notified Carrasco that his performance was poor and in need of
improvement and, in the third notice, told him he was at risk of being rejected. Carrasco
had been given additional training and the opportunity to improve. Therefore, the ALJ
concluded the record did not show the department acted with the intent to deprive
Carrasco of any benefit or with animus.
With respect to Carrasco’s assertion that the lack of substantial evidence for four
of the six reasons for the rejection was proof of bad faith, the ALJ concluded “bad faith
cannot be determined by some quantitative standard that only measures the number of
reasons ultimately found supported by substantial evidence versus the number of reasons
that were not.” The ALJ stated section 19175, subdivision (d), “contemplates that even a
single reason supported by substantial evidence is sufficient to warrant . . . rejection
during probation.” The fact the board and the superior court had reached different
conclusions about three of the reasons showed “reasonable minds may differ” about what
constitutes substantial evidence to support a rejection. And, to the extent the number of
reasons found to be lacking in evidentiary support is a “factor to consider” in the bad
faith analysis, the ALJ concluded, “it must not be considered in isolation, but in the
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context of an employee’s entire probationary period.” The record demonstrated Carrasco
had been provided with extensive training during the probation period and had been
notified of performance deficiencies with enough time to remedy them. Because he had
been provided with “every opportunity to demonstrate his ability” to perform his job over
an 11-month period, the number of reasons found to lack evidentiary support “does not
establish [the department] acted in bad faith by illegitimately thwarting [Carrasco’s]
ability to pass probation.”
In sum, the ALJ found Carrasco had not met his burden of proof. The board
adopted the ALJ’s proposed order and once more upheld Carrasco’s rejection.
F. Further Superior Court Proceedings on Carrasco’s Petition.
After submitting the board’s new decision to the superior court, Carrasco filed a
supplemental brief in which he alleged the board had failed to address the first question
contained in the superior court’s remand order, to wit, whether the rejection could stand
based solely on two of the six reasons given. He stated the superior court’s order showed
it had “correctly reasoned . . . that the notice of rejection was an integrated whole resting
on the sum of each of the six reasons for the rejection and recognized that, with the
rejection of four of the six reasons, the fabric of the rejection had ripped.” However,
according to Carrasco, the board ignored this supposedly clear message from the court
and instead “focused . . . on the idea that it could view the two remaining reasons
independently from the four rejected reasons to determine whether rejection remained
appropriate.” In addition, Carrasco accused the board of looking beyond the reasons
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stated in the notice of rejection and relying on other reasons to bolster its conclusion that
substantial evidence supported the rejection.
Carrasco once more argued the department had “relied on six combined,
interlocking reasons” for his rejection in the original notice, and the six reasons
“connected to form the entirety of the rationale for the rejection and must be read
together.” And, because the board supposedly ignored the superior court’s mandate, he
argued the decision on remand should be subject to “heightened scrutiny” rather than the
normal substantial evidence review. Finally, he argued the record contained substantial
evidence that the department acted in bad faith when it rejected him.
The department filed a brief and argued the board did, in fact, comply with the
superior court’s direction on remand. “[The board] clearly found that the remaining two
reasons for [the] rejection on probation were sufficient to constitute, on their own,
substantial evidence to support [the] rejection on probation.” It also argued the board
correctly found that the remaining two reasons for the rejection were supported by
substantial evidence, and that substantial evidence did not support Carrasco’s claim that
his rejection was the result of bad faith.
Carrasco responded to the department’s brief and argued that, not only did the
board ignore the superior court’s mandate in its remand order, but its conduct was
potentially sanctionable.
At the hearing on remand, Carrasco once more argued the six reasons given for his
rejection had to be read as a whole. And, as he did in his first brief filed after the case
was returned to the superior court, Carrasco addressed a video of the tactical training
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exercise. The superior court indicated it had not been provided with the video, so it
directed either party to produce the video as soon as possible, and it continued the
hearing.
Carrasco lodged the training video with the court, and he filed a supplemental
brief addressing in greater detail how the video disproved the board’s findings of fact
regarding the training exercise.
The department filed its own supplemental brief and once more argued the board
did not ignore the superior court’s mandate and, therefore, the decision on remand was
not subject to heightened scrutiny. In addition, the department argued that, contrary to
the suggestion in Carrasco’s briefs, the video of the training exercise did not undermine
the board’s findings of facts. As the department noted, the notice of rejection did not rely
on Carrasco’s failure to properly “clear an unsecured door” as the reason for rejection.
Instead, the notice accused Carrasco of refusing to accept “‘corrective suggestions’” from
his instructors, making excuses, and of being discourteous. The department argued the
video was irrelevant because it focused on the “actions of the trainees” during the
simulated building entry and “not any correction by instructors” after the exercise.
According to the department, the administrative record, including the live testimony
before the ALJ in the original hearing, constituted substantial evidence to sustain reason 2
for the rejection. Finally, the department argued there was no substantial evidence in the
record that it acted in bad faith when it rejected Carrasco during probation.
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Carrasco responded to the department’s supplemental brief. He argued the video
was relevant, it demonstrated that he acted appropriately during the training exercise, and
he did not rebuff corrective suggestions from instructors or act discourteously.
During the continued hearing, the superior court indicated it was inclined to adopt
its tentative ruling issued before the prior hearing and deny the petition. The court
indicated it had viewed the training video, which it noted was interesting but “wasn’t
really exciting.” The court stated the video had not changed its mind. “I don’t think that
what actually took place during the . . . training, what Mr. Carrasco was or was not doing,
is the issue. But the issue is what took place after that and about that.” After hearing
additional arguments, the court took the matter under submission.
G. Order and Judgment Denying Carrasco’s Petition.
The superior court subsequently entered an order and written decision denying the
petition. Addressing Carrasco’s assertion “that [the board] failed to address substantively
whether the Court could sustain a rejection . . . when two-thirds of the reasons presented
for the rejection lacked merit,” the court noted section 19175, subdivision (d), “does not
prescribe a specific number of reasons required for rejection of a probationary
employee.” “Indeed,” the court stated, the statute “implies a probationary employee may
be rejected for a single reason.” The court ruled Carrasco had not met his burden of
demonstrating the remaining two reasons for his rejection were not supported by
substantial evidence. “Based upon the seriousness of [Carrasco’s] resistance to the . . .
training, and the importance of submitting complete and timely arrest reports,” the court
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ruled, “the decision that [Carrasco] would not be returned to probation based upon the
two remaining reasons, is appropriate.”
The court also ruled Carrasco had not met his burden of demonstrating the
department acted in bad faith. Specifically addressing Carrasco’s claim that the
department essentially cooked up reasons for the rejection by relying on incidents that
took place after the decision to reject him had already been made, the court stated:
“Other than his speculation, [he] provides no legal authority prohibiting or precluding
[his] subsequent performance deficiencies to be included as a reason for his rejection.
[The department] was not obligated to disregard any and all subsequent performance
deficiencies after it made its tentative decision to reject [Carrasco’s] probation.”
Thereafter, the superior court entered a formal judgment denying the petition and
Carrasco timely appealed.
II.
DISCUSSION
A. General Principles.
“Article VII of the California Constitution provides that, generally, the civil
service includes ‘every officer and employee of the State’ (id., art. VII, § 1, subd. (a)) and
that permanent appointment and promotion in the civil service ‘shall be made under a
general system based on merit ascertained by competitive examination’ (id., art. VII, § 1,
subd. (b)). This constitutional mandate, known as the ‘merit principle,’ was adopted by
California voters in 1934 in an effort to eliminate the ‘spoils system’ of political
patronage from state employment and to ensure that ‘appointments and promotions in
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state service be made solely on the basis of merit.’ [Citations.] Another constitutional
provision, also adopted in 1934, calls for a nonpartisan personnel board (the [board]) to
enforce the civil service statutes (Cal. Const., art. VII, §§ 2, 3, subd. (a)) and for an
executive officer to administer the statutes under the [board’s] rules (id., §§ 2, subd. (c),
3, subd. (b)).” (California State Personnel Bd. v. California State Employees Assn.,
Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4th 758, 764-765, fn. omitted.)
Under the State Civil Service Act (§ 18570 et seq.), a probationary civil service
employee (a probationer) enjoys less protection than a regular incumbent to provide the
appointing power the ability to test his or her fitness. “The object and purpose of a
probationary period is to supplement the work of the civil service examiners in passing
on the qualifications and eligibility of the probationer. During such period the appointive
power is given the opportunity to observe the conduct and capacity of the probationer,
and if, in the opinion of that power, the probationer is not fitted to discharge the duties of
the position, then he [or she] may be discharged by the summary method provided for in
the Civil Service Act before he acquires permanent civil service status.” (Wiles v. State
Personnel Bd. (1942) 19 Cal.2d 344, 347; see § 19172 [“During the probationary period
the appointing power shall evaluate the work and efficiency of a probationer . . . .”].)
In evaluating whether the probationer exhibits “the proper qualifications to
become a permanent civil service employee,” the appointing power “is in the best
position to form a conclusion.” (Boutwell v. State Bd. of Equalization (1949)
94 Cal.App.2d 945, 949.) Consequently, the appointing power must be permitted to
“exercise discretion and personal judgment in determining whether a probationary
21
employee shall acquire permanent status.” (Broyles v. State Personnel Bd. (1941)
42 Cal.App.2d 303, 307.)
Although probationers enjoy less protection than permanent civil servants, they
are “entitled to have the statutory procedure for dismissal strictly followed.” (Wiles v.
State Personnel Bd., supra, 19 Cal.2d at p. 351.) “Any probationer may be rejected by
the appointing power during the probationary period for reasons relating to the
probationer’s qualifications, the good of the service, or failure to demonstrate merit,
efficiency, fitness, and moral responsibility,” but not for unlawful reasons. (§ 19173,
subd. (a).) The appointing authority must serve the probationer with written notice that
includes “the reasons for the rejection.” (§ 19173, subd. (b); see Bell v. City of Torrance
(1990) 226 Cal.App.3d 189, 196-197 [“[T]he notice of rejection served within the
probationary period must state specific reasons for the rejection.”].)
“It is not sufficient for the appointing power simply to give its conclusions,
unsupported by facts.” (Dona v. State Personnel Bd. (1951) 103 Cal.App.2d 49, 50.)
The rejection notice must contain “sufficient factual specificity” to provide the
probationer with the opportunity to mount a focused challenge to those reasons, and to
ensure the board can assess whether substantial evidence supports them. (In re Wendylin
Donald (2002) SPB Dec. No. 02-10, at p. 13 [2002 WL 32076962, at p. *7]; see
§ 19582.5 [The board “may designate certain of its decisions as precedents.”].)
“‘[J]ustification for the rejection of a probationary employee, lies not in the
appointing power’s conclusion . . . that the action is for “the good of the service and
failure to demonstrate merit and fitness” or that “the conduct and actions” were
22
unbecoming to such an employee. Rather the justification therefor lies in the factual
reasons which support or justify such conclusion by said appointing power that the
rejection of the employee would be for the good of the service.’” (Lincoln Unified
School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, 1092-1093, quoting Bryant
v. State Personnel Board (1950) 96 Cal.App.2d 423, 426.)
The probationer may request in writing that the board investigate his or her
rejection. (Gov. Code, § 19175.) After an investigation, the board may, with or without
conducting a hearing, affirm the rejection, modify the action of the appointing power, or
restore the probationer’s name to the employment list for certification to any position
within his or her class. (Id., § 19175, subds. (a)-(c).) The board may restore the
probationer to his or her position only if it finds, after a hearing, “that there is no
substantial evidence to support the reason or reasons for rejection, or that the rejection
was made in fraud or bad faith.” (Id., § 19175, subd. (d); see id., § 19180.) At the
hearing, the appointing authority does not have the burden of proving it did not act with
bad faith or that its reasons for the rejection are true. Instead, the probationer bears the
burden of proof and must overcome a rebuttable presumption that the rejection was free
from fraud and bad faith and that the reasons given for the rejection are true. (Id.,
§ 19175, subd. (d); see Evid. Code, §§ 500, 605-606.)
Judicial review of a final administrative decision by the board “shall extend to the
questions whether the respondent [board] has proceeded without, or in excess of,
jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of
discretion. Abuse of discretion is established if the respondent [board] has not proceeded
23
in the manner required by law, the order or decision is not supported by the findings, or
the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
B. Standards of Review.
On appeal from a judgment of the superior court denying a petition for writ of
administrative mandamus, we “independently determine[] whether substantial evidence
supports the [Board’s] findings, not the trial court’s conclusions.” (Furtado v. State
Personnel Bd. (2013) 212 Cal.App.4th 729, 742.) “‘“‘The State Personnel Board is an
agency with adjudicatory powers created by the California Constitution.’ [Citation.] As
such [the board] acts much as a trial court would in an ordinary judicial proceeding.
Thus, [the board] makes factual findings and exercises discretion on matters within its
jurisdiction. On review the decisions of [the board] are entitled to judicial deference.”’”
(Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13-14; see Cal. Const., art. VII,
§§ 2-3.) “We do not substitute our own judgment if the board’s decision ‘“‘is one which
could have been made by reasonable people . . . .’”’” (Camarena v. State Personnel Bd.
(1997) 54 Cal.App.4th 698, 701.)
“‘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 v. State Personnel Bd. (2002)
104 Cal.App.4th 575, 584-585.) In applying the substantial evidence test, “‘[w]e do not
reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of
[the board’s] decision. Its findings come before us ‘with a strong presumption as to their
24
correctness and regularity.’” (Palmieri v. State Personnel Bd. (2018) 28 Cal.App.5th
845, 851.)
“We review questions of law under the independent standard of review.
[Citation.] ‘We respect but do not necessarily defer to [the board’s] interpretations of the
governing statutes. [Citation.] The judiciary takes ultimate responsibility for the
construction of statutes, although according great weight and respect to the administrative
construction such as is appropriate under the circumstances.’” (Fisher v. State Personnel
Bd., supra, 25 Cal.App.5th at p. 14.)
C. The Board Properly Concluded a Rejected Probationer Cannot Be
Restored to His or Her Position If It Concludes One or More of the Reasons Given for
the Rejection Is Supported by Substantial Evidence.
Carrasco contends the board erred as a matter of law when it ruled his rejection
should be upheld because two out of the six reasons given for his rejection were
supported by substantial evidence. In this context, he makes three arguments: (1) the six
reasons given for his rejection were an integrated whole, and the rejection cannot stand
once four of the reasons were knocked out; (2) the board improperly ignored the superior
court’s remand order and reframed the question posed to it in such a manner that its order
should be subject to heightened scrutiny; and (3) the plain language of section 19175,
subdivision (d), dictated that the board restore him to his position once two-thirds of the
reasons given for his rejection were found to not be supported by substantial evidence.
We find neither argument to be persuasive.
25
1. Carrasco has not demonstrated the six reasons stated for his
rejection must be considered as an integrated whole.
As he did below, Carrasco argues the combined orders of the board and the
superior court “striking of four of the six allegations” set forth in the notice of rejection
“dooms the rejection as a whole and requires the rejection to fail as lacking substantial
evidence under Government Code section 19175.” He claims the six reasons stated in the
rejection notice were “an integrated whole.” Put a different way, he contends the
department “relied on six combined, interlocking allegations for rejecting [him].” But,
neither below nor in his briefs on appeal does Carrasco explain how or why the six
reasons were necessarily interdependent and could not stand alone.
Mirroring section 19173, subdivision (a), the notice served on Carrasco stated he
was being rejected “for reasons relating to [his] qualifications, the good of the service,
and failure to demonstrate merit, efficiency, fitness and moral responsibility.” The six
reasons provided in the notice each concerned different types of alleged actions and/or
omissions that disqualified Carrasco from his position as a special agent, and they took
place on different dates throughout his probationary period. Nothing on the face of the
notice and nothing in the administrative record indicates the department believed the
rejection was justified only if the six reasons were considered together. Merely repeating
the claim that the six reasons are interlocked and cannot survive independently does not
make it so.
26
2. The board did not ignore or improperly reframe one of the questions
posed to it in the superior court’s remand order.
Next, Carrasco once more argues the board ignored the superior court’s remand
order and failed to properly consider the first question posed to it. He contends the board
“wrongly framed the question as whether the two remaining allegations, standing alone,
constituted grounds for rejecting Carrasco.” And, by ignoring the court’s directive and
“transform[ing] the original rationale set forth in the rejection notice,” Carrasco argues
the board wrongly and impermissibly altered the allegations during the appeal process.
In its remand order, the superior court directed the board to decide, inter alia,
whether, “with four of the six reasons supporting Carrasco’s probation lacking substantial
evidence, Carrasco should be restored to his position pursuant to Government Code
section 19175 . . . .” The ALJ’s proposed order, that the board adopted, reproduced that
language almost verbatim in the statement of issues to be decided. In the analysis section
of the decision, however, the board phrased the issue differently, stating: “The first
question posed by the superior court’s March 3, 2017 Order is whether these two proven
allegations [reasons 2 and 4], standing alone, support [Carrasco’s] rejection during
probation; they do.”
True, the board reframed or rephrased the issue. Whereas the superior court
directed the board to address whether Carrasco should be restored to his position because
four of the reasons for the rejection had been found lacking, the board addressed whether
the rejection could stand based solely on the remaining two reasons. But, the two ways
of framing or phrasing the issue were consistent and complementary. The board merely
27
teased out of the court’s language what was implicit: for the board to decide it could not
restore Carrasco to his position despite four reasons for the rejection having been
knocked out, it would have had to conclude the remaining two reasons were themselves
legally sufficient to support the rejection. In that sense, the two ways of framing the issue
were merely opposite sides of the same coin.
3. Section 19175 contemplates that a single substantiated reason for
rejection of a probationer precludes reinstatement by the board.
Finally, we are unpersuaded by Carrasco’s assertion that section 19175,
subdivision (d), mandates that rejection of a probationary employee must be considered
an all-or-nothing proposition and, if some or even a majority of the reasons that were
given for the rejection are later found to not be supported by substantial evidence, the
rejection as a whole cannot stand as a matter of law. He argues the issue presented here
is a question of first impression and that interpretation of section 19175 is a legal
question we must review de novo. The board agrees with Carrasco that questions of law
are reviewed de novo but argues the board’s interpretation of section 19175 is entitled to
great weight and should be reversed only upon a showing a clear error. For its part, the
department argues resolution of the issue turns on the facts of the case, not on
interpretation of a statute that is clear on its face and, therefore, the appropriate standard
of review is the deferential substantial evidence test.
We agree with Carrasco that whether section 19175 precludes reinstatement of a
rejected probationer when less than all the reasons given for the rejection are found to be
supported by substantial evidence, is a question of statutory interpretation and is distinct
28
from the question of whether the individual reasons themselves are supported by
substantial evidence. The department’s assertion that section 19175 is clear on its face
and requires no interpretation begs the question: we cannot determine whether the statute
is clear on its face and requires no further interpretation without engaging in the act of
statutory interpretation the department says we should avoid. (See Robinson v. Shell Oil
Co. (1997) 519 U.S. 337, 340 [determining whether the meaning of a statute is plain and
unambiguous on its face is the “first step” of statutory interpretation]; Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332 [same].) And, to repeat, although the board’s
interpretation of the civil service statutes is entitled to respect and great weight,
ultimately the question of statutory interpretation is the courts’ responsibility. (Fisher v.
State Personnel Bd., supra, 25 Cal.App.5th at p. 14; Department of Corrections &
Rehabilitation v. State Personnel Bd. (2016) 247 Cal.App.4th 700, 708.)
Interpretation of a statute is a question of law we review de novo. (John v.
Superior Court (2016) 63 Cal.4th 91, 95.) “‘The fundamental purpose of statutory
construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of
the law. [Citation.] “We begin by examining the statutory language, giving the words
their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume
the lawmakers meant what they said, and the plain meaning of the language governs.
[Citation.] If, however, the statutory terms are ambiguous, then we may resort to
extrinsic sources, including the ostensible objects to be achieved and the legislative
history. [Citation.] In such circumstances, we ‘“select the construction that comports
most closely with the apparent intent of the Legislature, with a view to promoting rather
29
than defeating the general purpose of the statute, and avoid an interpretation that would
lead to absurd consequences.”’”’” (City of Desert Hot Springs v. Valenti (2019)
43 Cal.App.5th 788, 793.)
As originally adopted, section 19175 provided for restoration of a probationer if,
after an “investigation of the reasons for rejection,” the board concluded the hiring
authority did not comply with section 19173. (Former § 19175, subd. (b), added by
Stats. 1945, ch. 123, § 1, p. 559; see Boutwell v. State Bd. of Equalization, supra,
94 Cal.App.2d at p. 947.) But, the statute was amended four years later to provide for
reinstatement only if the board concluded the “reason or reasons” for the rejection were
not supported by substantial evidence or that the appointing authority acted fraudulently
or with bad faith. (Former § 19175, subd. (c), as amended by Stats. 1949, ch. 575, § 2,
p. 1072, italics added; see Boutwell, at p. 950.) The addition of “reason” singular to
“reasons” plural for the rejection (§ 19175, subd. (d); Stats. 2011, ch. 60, § 2) is strong
evidence the Legislature intended that a single substantiated reason will legally suffice to
uphold the rejection (absent fraud or bad faith), regardless of how many reasons were
given in the notice or how many are found to not be supported by substantial evidence.
Nothing in the plain language of the statute supports Carrasco’s contrary assertion.
The courts have phrased the requirements of section 19175 in a manner which
supports our conclusion. In Anderson v. State Personnel Bd. (1980) 103 Cal.App.3d 242,
the court noted: “A rejected probationary employee, after a hearing before the board,
may be reinstated only on a showing that there was no substantial evidence to support the
rejection; the rejection is presumed to be free from fraud and bad faith.” (Id. at p. 249,
30
italics added, citing former § 19175, subd. (c); Stats 1959, ch. 1999, § 1, p. 4642.) And,
citing Anderson, the appellate court in Lee v. Board of Civil Service Comrs. (1990)
221 Cal.App.3d 103 used the same phraseology: “A rejected probationary employee
may be reinstated only on a showing that there was no substantial evidence to support
the rejection.” (Id. at p. 108, italics added, citing Anderson, at p. 249.) Tellingly, those
courts interpreted section 19175 to focus on the ultimate question of whether the
rejection is supported by substantial evidence, and not on whether each reason or even a
majority of reasons for the rejection (when more than one was given) is supported by
substantial evidence. 4
In its brief, the board says it has similarly interpreted section 19175 in a
precedential decision to prevent reinstatement of a probationer if at least one of the stated
reasons for the rejection is supported by substantial evidence and the supporting facts
demonstrate a sufficiently serious reason to disqualify the probationer. (See In re David
4 When the intent of the Legislature is clear on the face of a statute, we usually
eschew reviewing legislative history. (People ex rel. Alzayat v. Hebb (2017)
18 Cal.App.5th 801, 817.) Although we find no ambiguity in section 19175 on the
precise question presented here, we do note that a document in the Governor’s chaptered
bill file lends some support to the reading given to section 19175 by the courts in
Anderson v. State Personnel Bd., supra, 103 Cal.App.3d 242 and Lee v. Board of Civil
Service Comrs., supra, 221 Cal.App.3d 103. In a report to Governor Earl Warren, the
Director of Finance explained, inter alia, that the bill to amend section 19175 would
“provide that a rejected probationer shall be restored to his position only if the State
Personnel Board determines after hearing that there is no substantial evidence to support
the rejection . . . .” (Director of Finance James S. Dean, Rep. on Assembly Bill No. 2045
(1949-1950 Reg. Sess.) prepared for Governor Warren (June 3, 1949) p. 1, Governor’s
chaptered bill files, ch. 575, italics added.)
On our own motion, we have taken judicial notice of this document, and it is
available in this court’s case file. (Evid. Code, §§ 452, 459; PGA West Residential
Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 174, fn. 11.)
31
Rodriguez (1994) SPB Dec. No. 94-29, pp. 15, 17 [1994 WL 16006537, at p. *7]
[concluding one of two reasons given for the probationer’s rejection—falsification of
timesheets—was “alone sufficient” to support his rejection].) Carrasco responds the
decision in Rodriguez is not binding on us. For the reasons already stated, ante, we
agree. He also argues the board did not, in fact, interpret section 19175 in Rodriguez, the
board is now taking language from Rodriguez out of its proper context and, in any event,
that language is unnecessary dictum. We need not resolve those questions here. But, to
the extent the precedential decision in Rodriguez does reflect the board’s reasoned
interpretation of section 19175 as preventing reinstatement of a probationer if at least one
of the reasons given for the rejection is supported by substantial evidence, we find it to be
persuasive authority because it is consistent with the plain language of section 19175 and
the interpretation given to it by other courts.
Carrasco argues the interpretation of section 19175, subdivision (d), we adopt here
ignores “the disjunctive meaning of ‘reason or reasons.’” True, the ordinary and popular
meaning given to the word “or” in a statute is disjunctive, signifying it marks out “‘an
alternative such as “either this or that.”’” (In re Jesusa V. (2004) 32 Cal.4th 588, 622-
623.) But, that rule of construction applies when a statute uses the word “or” to
differentiate separate, distinct categories. (See White v. County of Sacramento (1982)
31 Cal.3d 676, 680; Anderson v. Davidson (2019) 32 Cal.App.5th 136, 146.)
We are not persuaded by Carrasco’s assertion that section 19175, subdivision (d),
“sets up two categories of rejections—those based on a single reason and those based on
multiple reasons.” A “reason” for rejecting a probationer remains a “reason” regardless
32
of how many are set forth in the notice. (§ 19173; see John R. v. Oakland Unified School
Dist. (1989) 48 Cal.3d 438, 459 (conc. & dis. opn. of Eagleson, J.) [“‘Rose is a rose is a
rose is a rose.’ (Gertrude Stein, Sacred Emily (1913).)”].) It is not transformed into
something else, such that it falls into a different category, merely because more than one
has been provided. (Cf. § 13 [“The singular number includes the plural, and the plural
the singular.”].)
Finally, we agree with the board that Carrasco’s suggested interpretation of
Government Code section 19175, subdivision (d), would result in absurd consequences.
As noted, ante, the California Constitution provides that “permanent appointment and
promotion” to the civil service shall be “based on merit.” (Cal. Const., art VII, § 1,
subd. (b); see California State Personnel Bd. v. California State Employees Assn., Local
1000, SEIU, AFL-CIO, supra, 36 Cal.4th at p. 764; see also Gov. Code, §§ 18502,
19800.) If the board finds that even one of the reasons given for rejecting a probationer is
supported by substantial evidence, by definition it has found the appointing authority was
justified in concluding the probationer lacked merit or was otherwise unsuited to the
position and should not be permanently appointed. (Gov. Code, §§ 19173, subd. (a),
19175, subd. (d).) Under Carrasco’s interpretation, however, the board would
nonetheless be required to reinstate the probationer notwithstanding his or her proven
unfitness or unsuitability. Because that interpretation would potentially lead to absurd
consequences, we must reject it. (City of Desert Hot Springs v. Valenti, supra,
43 Cal.App.5th at p. 793.)
33
For all these reasons, we hold the board properly concluded Carrasco was not
entitled to reinstatement as a matter of law notwithstanding that four of the six reasons
given for his rejection had been found to not be supported by substantial evidence.
D. The Administrative Record Supports the Board’s Findings That Reasons 2
and 4 for Carrasco’s Rejection Are Supported by Substantial Evidence.
Carrasco acknowledges he faces the “‘daunting task’” of demonstrating the
board’s findings are not supported by substantial evidence. (See Whiteley v. Philip
Morris, Inc. (2004) 117 Cal.App.4th 635, 678 [“[Appellant] raising a claim of
insufficiency of the evidence assumes a ‘daunting burden.’”], quoting In re Marriage of
Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) Nonetheless, he argues the
administrative record does not support the two remaining reasons for his rejection. We
conclude otherwise.
1. Carrasco did not meet his burden of proving he did not resist his
instructors’ efforts to provide corrective instruction during a training exercise (reason 2).
With respect to reason 2, Carrasco argues the testimony of Marks and Lee, as well
as the video of the training exercise, establish he “followed instructions, was not
discourteous, did not make excuses, and was not argumentative.” According to Carrasco,
the video is the “most persuasive evidence” because of what it does not depict: him not
following instructions, him being discourteous or argumentative, and him failing to take
responsibility and refusing to accept criticism. But, as the superior court noted, the video
only depicts the room-entry exercise during which Carrasco was alleged to have failed to
personally address a threat behind the door. That is not what the notice of rejection stated
34
was a reason for his rejection. Instead, reason 2 focused on what Carrasco did and failed
to do after the training scenario. The notice set forth some details of the tactical error that
Marks and Mory observed, as factual background, but it was patently not the focus of
reason 2. Therefore, we need not address further the parties’ arguments about whether
the evidence shows Carrasco did or did not make a tactical error during the training
exercise.
As noted, Marks testified that, during a group debriefing (which, by definition,
would have occurred after the room-entry exercise and would not have been captured in
the video of the exercise), Carrasco was “resistant” to correction by his instructors, he
“refused to listen,” and he “talked over” the instructors and tried to explain to them why
he thought he had done nothing wrong. And, when Mory pulled him aside for a one-on-
one conversation, Carrasco did not seem to be ready to move on. When asked if Carrasco
had been discourteous, Marks testified Carrasco was “somewhat resistant to listening” to
his instructors and seemed to have an attitude that Marks described as, “I’ve been there,
done that.” He was not rude and did not use foul language. However, because Carrasco
would not listen and continued to defend his actions during the training exercise, Marks
testified “we couldn’t get to a corrective discussion.” Marks explained, “You can’t
correct something if someone doesn’t believe he did something incorrect.”
In addition, in his report that was introduced into evidence without objection,
Marks wrote that he had told Carrasco “he would need to follow training directives
without continually making excuses.” But, “[d]uring other scenarios”—meaning training
35
scenarios other than the room-entry exercise captured in the video—“Carrasco made
additional excuses for not following the training procedures.” (Italics added.)
The evidence amply supports the board’s factual findings that Carrasco “denied”
that he made a tactical error during the room-entry exercise, he insisted he did nothing
wrong and, although he had been reminded to follow the training directives without
making excuses, he continued to deny wrongdoing and was not receptive to the training.
One of the specific functions of a special agent is “to accept constructive criticism,
feedback and use supervisory direction positively.” As the board concluded, Carrasco’s
resistance to being trained on matters relating to his own safety and the safety of other
special agents, and his unwillingness to even listen to constructive criticism, “is not a
trivial event” and was a legitimate basis for the department to conclude he was unsuited
to the position of special agent.
Carrasco argues Lee’s testimony demonstrates Carrasco was not belligerent or
discourteous, and he did not talk over his instructors. True, the notice of rejection stated
Carrasco was “discourteous,” but the board made no finding that he had been rude,
discourteous, or belligerent. Because our review is limited to whether the board’s
findings are supported by substantial evidence (Furtado v. State Personnel Bd., supra,212 Cal.App.4th at p. 742), whether the record shows he acted rudely is beside the point.
In addition, Lee testified he was not a member of the tactical team taking part in the
exercises but was only one of the role players. He spent most of his time inside the
house, where the exercises took place while preparing for the next exercise, and he was
not around “all the times” Marks and Mory spoke to Carrasco. In short, Lee’s testimony
36
in no way refutes Marks’ testimony about how Carrasco reacted to the attempts to
provide constructive criticism.
Last, relying on Moreno’s testimony, Carrasco argues the record proves he
corrected whatever deficiencies he had displayed during the training exercise. As already
noted, whether Carrasco made a tactical error is not the issue, so whether he corrected
that deficiency is not one either. More importantly, Moreno’s testimony simply does not
support Carrasco’s assertion. Carrasco received training from Moreno shortly after he
began his assignment as a special agent in August 2013. Moreno testified that in January
2014 Carrasco had been given a “write-up,” so Moreno was tasked with providing
additional field training. When asked his opinion whether, at the end of that field
training, he believed “Carrasco was capable of performing his job on his own,” Moreno
answered, “On some cases, yes. On some other ones, he needed more guidance.”
Moreno expressly testified he would not have necessarily known about every case
Carrasco handled or was involved in but, for the cases he was aware of, Moreno testified
Carrasco successfully completed the field training. He was not asked and did not testify
that he was aware of the Simunition® training incident or of Marks’ report, so Moreno’s
testimony hardly undermines the substantial evidence in the record that supports the
board’s finding.
In sum, Carrasco has not shown that the evidence introduced during the hearing
dictated a finding by the board in his favor that reason 2 was not supported by substantial
evidence.
37
2. Carrasco did not meet his burden of proving he did not submit an
untimely and incomplete arrest report (reason 4).
Next, Carrasco argues the administrative record does not support the board’s
findings that he failed to submit an arrest report within six business days of the arrest and
that the report was deficient. Once again, we conclude otherwise.
Santos testified the six-day rule for when reports had to be submitted was not in
writing and it was not to be found in the department’s operations manual. Instead, it was
an “office” or “local expectation” of when reports had to be submitted, and he had
transmitted that expectation to subordinate agents under his supervision during “minute
meetings.” Carrasco acknowledged that he became aware of that expectation during a
meeting that took place sometime in 2013, and Santos testified he had expressly
instructed Carrasco to submit a report about the March 26, 2014 arrest within six days.
Santos also testified that, on the sixth day after the arrest, Carrasco said he needed
“follow-up documents” and did not submit the report for revisions until April 9. And,
Carrasco acknowledged he submitted his report more than six days after the arrest,
meaning it was late.
There is simply no dispute that Santos had informed his subordinates, including
Carrasco, that he expected reports to be submitted within six days. And, there is no
dispute Santos had directed Carrasco to submit the arrest report in question within six
days, yet Carrasco failed to comply with that directive. In short, the evidence submitted
during the evidentiary hearing supports the board’s findings that Santos had “directed that
[special agents] under his supervision complete and submit an arrest report within six
38
busines days after an arrest,” Carrasco “became aware of this directive in 2013,” he was
the lead investigator on the March 26, 2014 arrest, he “was responsible for preparing the
arrest report,” and he “submitted an arrest report to . . . Santos . . . four days late.”
Santos also testified that, because the arrest in question resulted in the seizure of
cash, he would have expected Carrasco’s report to include certain attachments, such as an
asset forfeiture form and consent to search form. The draft report Santos received on
April 10 lacked those attachments. Carrasco did not submit those forms until later, after
continued prodding from Santos. And, Carrasco acknowledged the report he submitted
on April 9 for rewriting and correction was incomplete. That evidence supports the
board’s finding that Carrasco’s arrest report “contained numerous omissions.”
Carrasco argues the department had no written “policy or standard operating
procedure” that governed when arrest reports had to be submitted, so he cannot be faulted
for not timely submitting the report. But, he cites no authority for the implicit
proposition that failure to timely submit a report is a legitimate reason for rejecting a
probationer only if the appointing authority had a written policy on the subject, and we
have found none. To repeat, the evidence amply demonstrates Carrasco was aware of the
directive by his supervising officer to submit arrest reports within six days, but he failed
to comply with it.
Next, Carrasco argues he cannot be faulted for submitting an incomplete report
because no evidence was introduced that he “knew what required elements [the
department] needed in the arrest report since he had not received the training on report
writing.” But, other than cite to the fact he did not receive classroom training on report
39
writing, because the OCS academy had been cancelled, Carrasco directs our attention to
no affirmative evidence in the administrative record demonstrating he had no knowledge
of what needed to be included in the report. For example, he did not himself testify that
he received no training whatsoever on report writing. Moreover, the record directly
contradicts his assertion that no evidence was admitted that his “supervisor (or anyone
else) provided guidance . . . on how to prepare the report.” Moreno specifically testified
that part of the field training he provided to Carrasco included “showing him what
paperwork needed to be done for different arrests, different report writing, different threat
assessments, [and] different escapes.” (Italics added.)
Thus, we conclude Carrasco has not demonstrated the evidence dictated that the
board find in his favor that reason 4 was not supported by substantial evidence.
E. The Administrative Record Supports the Board’s Findings That the
Department Did Not Act in Bad Faith When It Rejected Carrasco.
Carrasco also argues the board erred because the administrative record
demonstrates the department acted in bad faith when it rejected him. Again, we are
unpersuaded.
1. Additional facts.
In a “Report of Performance for Probationary Employee” signed December 19,
2013, Santos rated Carrasco’s performance during his first four months as a special agent
in three areas as: “Improvement Needed” (skill, knowledge, and learning ability);
“Standard” in three areas (work habits, attitude, and communication); “Outstanding” in
one area (relationships with people); and an overall rating of “Standard.” Santos
40
acknowledged Carrasco was still a new special agent, and that the transition from parole
agent might be difficult and stressful. But, he expected Carrasco to be more aggressive in
learning the job and to take on “self-generated investigations” so Santos could evaluate
Carrasco’s report writing skills. Santos wrote he believed Carrasco had “the ability to
become a great investigator and prominent member of the law enforcement community.”
In a “Letter of Performance & Training Expectations” dated January 20, 2014,
however, Santos noted several deficiencies in Carrasco’s performance. The previous
October, Santos had discussed with Carrasco “ways to enhance [his] performance and
maintain efficiency in performing the duties of [his] job.” The two had discussed
“training, development needs, and [the] need to follow instructions from experienced
Special Agents.” The purpose of the discussion had been “to set goals for [Carrasco] to
perform [his] job duties successfully.”
However, since that conversation, Carrasco’s performance had been lacking in
several areas. First, although one of the topics during the October 2013 conversation had
been the expectation that Carrasco would “cultivate and investigate a validated gang
member” and “open interest in an escape cold case,” Carrasco had not yet “produced any
complex investigations that would demonstrate [his] ability to investigate.” Second,
Carrasco had attended 10 operational briefings and knew of their importance. But,
during an operational briefing conducted in December 2013, Carrasco received a personal
telephone call and left the briefing, which “resulted in the disruption of the briefing,
caus[ed] a breakdown in communication, and demonstrate[ed] [his] lack of interest with
the case.” Third, despite receiving training on surveillance techniques and escape
41
procedures, Carrasco paid insufficient attention during an investigation of an escapee.
Last, Carrasco failed to follow established protocol during the same investigation.
The letter listed several expectations Carrasco was to meet, and Santos wrote that
Carrasco would be assigned to an experienced special agent for 45 days of training, after
which he would be evaluated again. Carrasco acknowledged receipt of the letter, wrote
that it included untrue and inaccurate statements, and signed the letter under protest.
As already noted, Moreno provided Carrasco with additional field training for
roughly 45 days, after which he concluded Carrasco “was capable of performing his job
on his own” in “some cases” but, in others, “he needed more guidance.” Similarly, when
asked if Carrasco “successfully complet[ed]” the 45-day training, Santos testified, “Yes,
he completed the time frame, but there were still some issues that needed to be
addressed.” Santos was “sure” he had discussed with Carrasco the areas where additional
improvement was needed.
Santos authored an “Interim Performance Report” dated March 1, 2014, but he did
not sign or officially submit it because the department was “going forward” with
Carrasco’s rejection. The draft report indicated that, during the 45-day training period,
Carrasco had demonstrated the ability to “[e]ffectively put together an investigative file,”
and he had shown improvement with “gang validations.” However, the report indicated
Carrasco had still not demonstrated adequate investigative skills, he had willfully
disobeyed Santos’ directive to conduct a “cold case” investigation, he had neglected his
duty during an operation to apprehend an escapee, and he had failed to accept criticism
during the Simunition® training. Santos wrote that Carrasco had “not successfully
42
demonstrated the ability to perform the functions of a Special Agent,” and “[t]here must
be demonstrable improvements or you will not pass your probation.” Although the report
was not officially submitted, Carrasco acknowledged receiving it on March 21, 2014, he
disputed the truth and accuracy of its contents, and he signed it under protest.
Notwithstanding that the decision to reject Carrasco had been effectively made in
March 2014, he remained in his position until he was served with the notice of rejection
on June 23, 2014.
2. Applicable law.
Even if the board finds the reason or reasons given by the appointing power for
rejecting a probationer are supported by substantial evidence, it must still reinstate the
probationer if it finds he or she has rebutted the presumption that the rejection was not
made in bad faith. (§ 19175, subd. (d).) The parties agree the definition given to “bad
faith” by the appellate court in Kuhn v. Department of General Services (1994)
22 Cal.App.4th 1627 (Kuhn) is the correct legal standard.
Citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683-684, the court in
Kuhn observed that, “[v]iewing the terms and conditions of employment as creating a
species of contract between employer and employee, there is implied in this relationship
(as in all contracts) a covenant of good faith and fair dealing; the obligation imposed by
this covenant is measured by the provisions of the particular agreement at issue.” (Kuhn,
supra, 22 Cal.App.4th at p. 1637.) As Kuhn explained, the implied covenant “is an
implied promise that neither party will take any action extraneous to the defined
relationship between them that would frustrate the other from enjoying benefits under the
43
agreement to which the other is entitled. [Citations.] Thus, under its obligation to act in
good faith DGS could not take any action with the intention that the procedural or
substantive entitlements of its probationary employees be illegitimately thwarted.” 5 (Id.
at pp. 1637-1638.) In addition, the court noted that, “[c]onceivably, bad faith might be
demonstrated where an employer has a range of permissible actions if the choice were
driven by animus against the employee’s enjoyment of a benefit.” (Id. at p. 1640.)
In In re Joe Nava (1995) SPB Dec. No. 95-05 (Nava), a probationer employed by
the Employment Development Department (EDD) received a performance report in
which he was rated “standard” or “outstanding” in all categories, and “standard” overall.
The report urged the probationer to continue his hard work and told him he was
outperforming other employees “at the same stage of training.” The probationer and his
supervisor signed the report and it became part of the probationer’s personnel file. (Id. at
pp. 3-4 [1995 WL 17007442, at p. * 2].) Three months later, the probationer received a
similarly positive performance report. The report stated there had been some concern
about the probationer’s attendance, but it noted the probationer “had taken constructive
5 Although the parties agree we should apply the test for “bad faith” from Kuhn,
supra, 22 Cal.App.4th 1627, we note the analysis in that decision appears to be in tension
with the consistent holding by the California Supreme Court and this state’s appellate
courts that public employees hold their employment pursuant to statute or similar
enactment, not by contract, and that, at least with respect to the duration and terms of
employment (as opposed to contractual matters such as entitlement to wages and pension
benefits), a public employee cannot sue for breach of the implied covenant of good faith
and fair dealing. (See, e.g., Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24; Sheppard v.
North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289,
311-313.) But, we need not decide in this appeal whether we agree with Kuhn’s
interpretation of section 19175, subdivision (d), is correct.
44
steps” to address those concerns and “[n]othing in the report indicated any major
dissatisfaction concerns with the appellant’s work performance.” The probationer signed
and returned the report. He assumed his supervisor had also signed it and “was never
told otherwise.” (Id. at pp. 4-5 [1995 WL 17007442, at p. * 2].)
Unbeknownst to the probationer, a manager rejected the second performance
report and directed the supervisor to prepare a revised report that now rated the
probationer as “unacceptable” in three categories, “standard” in two and “outstanding” in
one category, and “unacceptable” overall. In addition, the revised report now indicated
the probationer’s work performance and productivity were unacceptable, and, although it
acknowledged some improvement with attendance, it stated the probationer’s absences
resulted in a rating of “unacceptable” for the category of “work habits.” (Nava, supra,
SPB Dec. No. 95-05, at pp. 5-6 [1995 WL 17007442, at pp. *2-*3].) The probationer did
not learn of the revised report until he returned from a week-long training, and, until he
received a notice of rejection three months later, he was not placed on the schedule to
report to work. (Id. at pp. 6-8 [1995 WL 17007442, at p. *3].)
In its decision reinstating the probationer, the board indicated he bore “a heavy
burden” of overcoming the presumption under section 19175, subdivision (d), that his
rejection was free from bad faith. (Nava, supra, SPB Dec. No. 95-05, at p. 10 [1995 WL
17007442, at p. *5].) Applying the test for “bad faith” from Kuhn, supra, 22 Cal.App.4th
1627, the board found: (1) the EDD had “misled” the probationer “about its satisfaction
with his work performance”; (2) “by refraining from issuing the revised second Report of
Performance until his final day at work, [it] gave him no opportunity to address the newly
45
leveled criticisms”; and (3) it “continued to mislead” the probationer for weeks about his
employment status. (Id. at pp. 12-13 [1995 WL 17007442, at p. *6].) The EDD
“changed its position” about the probationer’s work performance and kept him in the
dark about it “until it was too late for [him] to address the newly raised concerns.” As the
board put it, the EDD’s “shifting evaluation” of the probationer’s performance “lulled
[him] into a false sense of security . . . .” (Id. at p. 14 [1995 WL 17007442, at pp. *6-
*7].) Therefore, the board concluded the record showed the EDD intended to
“‘illegitimately thwart’” the probationer’s “entitlement to a fair opportunity to
demonstrate his ability to pass probation.” (Id. at pp. 13, 18 [1995 WL 17007442, at
pp. *6, *8].)
3. Analysis.
The facts introduced during the evidentiary hearing do not show the department
acted in bad faith or with animus when it rejected Carrasco. As the board found in its
ruling, the facts of this case are distinguishable from Nava because the department “did
not mislead [Carrasco] by giving him favorable performance evaluations and later
determining that the same conduct was unacceptable.” Carrasco’s December 2013
performance evaluation rated him as “standard” overall, but Santos noted areas where he
expected to see improvement. The next month, though, Santos wrote a very unfavorable
letter of performance that outlined Carrasco’s deficiencies and failure to act toward the
goals he and Santos had discussed the previous October. Santos assigned Moreno to
provide Carrasco with additional field training for 45-days. Although Carrasco
demonstrated the ability to perform the duties of a special agent in “some” areas, he had
46
been informed he still needed to address some issues. And, in the March 2014 “Interim
Performance Report,” Carrasco was informed of serious deficiencies and that he was at
risk of not successfully completing his probation. In other words, unlike in Nava, the
department did not lull Carrasco into the false sense of security by consistently telling
him he was doing very well in his job, then pull the rug out from under him and tell him
his performance was unacceptable. (Nava, supra, SPB Dec. No. 95-05, at p. 14 [1995
WL 17007442, at pp. *6-*7].)
Carrasco argues the circumstances of how reasons 2 and 4 came to be included in
the notice of rejection is evidence the department acted in bad faith.
First, Carrasco argues the department “failed to timely provide [him] with notice,
additional training, and a reasonable chance to correct his deficiencies over the
simunition training.” 6 According to Carrasco, the first notice he received about issues
related to the training was two months later when he received the interim performance
report. However, by that time the department had already decided to reject him and it
acted duplicitously by instructing Marks to write a report about the training “after the fact
6 Carrasco also argues the department acted in bad faith when it failed to comply
with sections of the State of California Supervisor’s Handbook: A Guide to Employee
Conduct and Discipline (2004), adopted by the former Department of Personnel
Administration. But he cites no authority to support that proposition. To the contrary,
the regulation governing performance appraisals of probationers expressly states its
“provisions shall be construed as directory.” (Cal. Code Regs., tit. 2, § 599.795.) And, in
Nava, the board ruled failure to comply with that regulation “does not necessarily
constitute bad faith or provide justification for restoring a rejected probationer.” (Nava,
supra, SPB Dec. No. 95-05, at pp. 13-14 [1995 WL 17007442, at p. *6].)
47
supporting its conclusion.” These acts, according to Carrasco, demonstrated the
department acted with an “‘improper motive’” and with “‘animus’” toward him.
To repeat, the notice of rejection did not rely on Carrasco’s tactical “deficiencies”
during the room-entry exercise as a reason for the rejection, so even assuming the
department provided him with no additional tactical training to correct those
“deficiencies,” it is not evidence of bad faith. And, to the extent Carrasco suggests he
was never placed on notice or given an opportunity to correct the real deficiency at the
heart of reason 2, the record suggests otherwise. In October 2013, Santos expressly told
Carrasco he “need[ed] to follow instructions from experienced Special Agents.” Yet, as
demonstrated, post, Carrasco did not heed that directive three months later during the
training exercise.
Nor do we agree with Carrasco’s suggestion that the record shows the department
acted duplicitously when it documented his conduct during the training exercise to
support his rejection. The fact Carrasco was not immediately provided with formal
notice of, or disciplined for, his conduct during the Simunition® training did not preclude
the department from using that misconduct as a basis for his rejection once it was decided
that he did not meet the qualifications for his position. An appointing authority does not
waive “its right to reject an employee during probation for misconduct or poor
performance because it failed to reject the employee at or about the time an incident
occurred. While a department should certainly keep an employee apprised of how the
employee is performing during the probationary period, a department may wait until the
end of the probationary period to actually effect the rejection of the employee for conduct
48
occurring at any time during the probationary period.” (In re David Rodriguez, supra,
SPB Dec. No. 94-29, at pp. 12-13 [1994 WL 16006537, at pp. *5].)
Second, Carrasco argues the department acted in bad faith by “pil[ing]-on” the
allegation that he failed to timely submit a complete arrest report. For the reasons just
discussed, we reject his suggestion that the department could not rely on performance
deficiencies that occurred after the decision to pursue his rejection had already been
made. Carrasco also repeats his assertions that no evidence was introduced at the hearing
that he received proper training on report writing, and that he could not be expected to
comply with a “nebulous” and unwritten rule about when reports were due. But, as
discussed, ante, Carrasco bore the affirmative burden of demonstrating he did not receive
any training and that he was unaware of his supervisor’s expectations about reports, and
he failed to meet that burden.
Last, Carrasco argues the mere fact the department included reasons 2 and 4 in the
notice of rejection, when the other 4 reasons lacked evidentiary support, demonstrates it
acted in bad faith and with animus. He contends the department “aimed to trump up
claims” against him” and “just threw spaghetti at a wall to see what would stick.” But, as
the board noted in its ruling, there is no evidence in the record the department knew or
suspected that four of its reasons for rejecting Carrasco would not withstand scrutiny, and
it added reasons 2 and 4 as insurance. Even the superior court at first concluded reason 5
was supported by substantial evidence, which belies Carrasco’s implicit suggestion that
all six reasons lacked any evidentiary support whatsoever.
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And, because we have concluded, ante, that section 19175, subdivision (d), does
not require reinstatement if the board finds that less than all the reasons given for the
rejection are supported by substantial evidence, we must agree with the board’s
conclusion that “intent of bad faith cannot be determined by some quantitative standard
that only measures the number of reasons ultimately found [to be] supported by
substantial evidence versus the number of reasons that were not.” Given the ample
evidence in the administrative record to support the board’s findings that reasons 2 and 4
were supported by substantial evidence, we simply cannot conclude that Carrasco met his
affirmative burden of demonstrating his rejection was the result of the department’s bad
faith.
III.
DISPOSITION
The judgment is affirmed. The department and the board shall recover their costs
on appeal.
CERTIFIED FOR PUBLICATION
McKINSTER
Acting P. J.
We concur:
MILLER
J.
FIELDS
J.
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