Mendez v. Civil Service Commission, etc. CA1/3 ( 2022 )

Filed 8/29/22 Mendez v. Civil Service Commission, etc. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MICHELLE MENDEZ,
Petitioner and Appellant,
A163271
v.
CIVIL SERVICE COMMISSION, (San Mateo County
COUNTY OF SAN MATEO et al., Super. Ct. No. 20CIV04515)
Respondents.
Michelle Mendez appeals from an order denying her petition for a writ
of administrative mandate. (Code Civ. Proc., § 1094.5; statutory references
are to this Code unless otherwise indicated.) Mendez contends that the trial
court erred by refusing to compel the Civil Services Commission of San Mateo
(the Commission) to set aside a decision terminating Mendez’s employment
with the San Mateo Probation Department (the Department). We affirm.
BACKGROUND
Mendez was hired by the Department in November 2001. In May 2019,
she held the position of Management Analyst. In that position, Mendez was
required to work at least eight hours per workday and 40 hours per
workweek. If she worked less than eight hours on a given workday, Mendez
was required to report her unworked time as vacation or “ ‘comp’ ” time on
1
her employee timecard. On May 9, Mendez’s supervisor, Noelle Vergara, was
handling an employment matter that was unrelated to Mendez when she
found a discrepancy in Mendez’s time records. While reviewing a recently
terminated employee’s “Skype” conversations, Vergara discovered that on
March 25, 2019, Mendez went to Costco during her working hours even
though she recorded an eight hour workday on her timecard. Vergara
discussed the discrepancy on Mendez’s timecard with Assistant Chief
Probation Officer Bonnie MacAskill, and then referred the matter for an
Internal Affairs investigation.
Deputy Chief Probation Officer Christopher Abalos conducted an
internal investigation on behalf of the Department. Abalos compared
Mendez’s time records for the period from January 27 through June 23, 2019,
with Mendez’s other computer records, cardkey building entry data, and
photos from cameras at the Department’s office. Abalos identified 13
material discrepancies on Mendez’s timecards for the period between May 27
and June 27 and concluded from his investigation that Mendez worked
significantly less than the required 40 hours per week during weeks that she
reported working a full 40 hours. Abalos decided to notify the District
Attorney of possible fraud by Mendez after he discussed his findings with
Probation Chief John Keene, Assistant Chief MacAskill, and County Counsel.
The District Attorney investigated the matter but did not file charges against
Mendez.
Meanwhile, on August 16, 2019, Abalos interviewed Mendez about her
timecards. Mendez declined to answer many questions on the advice of her
counsel, who accompanied her to the interview. Mendez also stated that she
would need to review records in order to answer questions about work she
2
performed during the days in question. After the interview, Mendez did not
provide the Department with any information about this matter.
In December 2019, the Department advised Mendez that it intended to
terminate her employment and notified her of her right to a hearing and to
submit written materials. Mendez did not submit written materials in
response to the notice. The Department held a hearing on the matter, but
Mendez and her attorney left during a recess that was called because of a
verbal altercation between Mendez’s attorney and County Counsel.
On February 11, 2020, Mendez was terminated from her employment.
The Department’s decision letter set forth five grounds for dismissal under
Civil Service Commission Rule XIII, Section 4: (1) absence from the
workplace without authorization or adequate explanation; (2) dishonesty or
conduct contrary to commonly accepted standards of justice; (3) willful
misconduct causing damage to public property or a waste of public supplies or
time; (4) insubordination; and (5) failure to follow policies, procedures or work
rules.
Mendez appealed her dismissal to the Commission. The Commission
granted Mendez’s request that her hearing be open to the public. Thirteen
witnesses testified at the hearing, which was held over two full days on June
26 and July 9, 2020. On July 11, the Commission announced its decision to
uphold Mendez’s dismissal, and on July 16, it issued a 10-page decision
containing findings of fact supporting its decision. The Commission
concluded that the Department proved by a preponderance of the evidence
four of the five grounds for discipline that were set forth in its February 2020
decision letter. The Department did not prove that insubordination was a
ground for disciplining or terminating Mendez, the Commission found.
3
In October 2020, Mendez filed this writ proceeding, naming the
Commission as respondent and the Department as the real party in interest.
Mendez alleged that the Department repeatedly retaliated against her for
“raising concerns about questionable management decisions and operational
changes” by, among other things, using alleged timecard discrepancies as a
pretext for terminating her employment. She sought a peremptory writ of
mandate compelling the Commission to set aside its July 2020 decision and to
direct the Department to reinstate Mendez’s employment with full back pay
and benefits. In December, the Commission lodged a nine-volume record of
evidence that had been submitted during the administrative appeal hearing.
The issues raised in Mendez’s petition were briefed pursuant to a
stipulated schedule approved by the trial court. According to Mendez’s
amended petition, the Commission (1) failed to give due consideration to
evidence that Mendez’s termination was retaliatory and pretextual, (2)
precluded Mendez from introducing evidence regarding the Department’s
treatment of similarly situated employees, and (3) denied Mendez a fair
hearing.
Following a hearing on March 5, 2021, the trial court denied Mendez’s
petition. On March 11, Mendez filed a request for a statement of decision, in
which she purported to identify one hundred principal controverted issues, all
framed as questions and many unsupported by citations to the record or legal
authority. On March 22, the Department filed a proposed statement of
decision, which led Mendez to file extensive objections and to request another
hearing.
On April 15, 2021, the trial court issued a 20-page statement of
decision. Exercising its independent judgment, the court found, among other
things, that (1) the weight of the evidence supports the Commission’s decision
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upholding Mendez’s dismissal, and (2) “no procedural irregularities in the
process” require a contrary conclusion. On May 28, the court filed an
addendum to its statement of decision after reviewing Mendez’s objections
and holding another hearing. In its addendum, the court “reaffirm[ed]” its
decision denying Mendez’s petition, and overruled Mendez’s objections to the
statement of decision “in their entirety.” Judgment was entered on June 8,
2021.
DISCUSSION
I. Standards of Review
Mendez filed her mandate petition under section 1094.5, which
provides for judicial review of a final administrative decision made as the
result of a proceeding that requires an evidentiary hearing. (§ 1094.5,
subd. (a).) Under this statute, the court’s inquiry extends to questions
whether the agency acted within its jurisdiction, whether there was a fair
trial, and whether the agency committed a prejudicial abuse of discretion.
(Id. at subd. (b).) “Abuse of discretion is established if the respondent has not
proceeded 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.”
(Ibid.)
In the present case, the trial court was required to exercise
independent judgment when reviewing the Commission’s findings because
the termination of public employment affects a fundamental vested right.
(Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th
1159, 1167 (Melkonians).) Under this standard, an abuse of discretion is
established if the trial court determines that the agency’s findings are not
supported by the weight of evidence. (§ 1094.5, subd. (c).) As noted, the trial
5
court found no abuse of discretion in the Commission’s decision to uphold the
Department’s termination of Mendez’s employment.
On appeal from a ruling on a petition for writ of administrative
mandate, we review the trial court’s findings for substantial evidence, even in
cases where the trial court independently reviewed the evidence.
(Melkonians, supra, 174 Cal.App.4th at p. 1168.) The court’s legal
determinations are reviewed de novo. (Ibid; Bautista v. County of Los
Angeles (2010) 190 Cal.App.4th 869, 875.) Here, Mendez concedes that the
trial court’s findings are supported by substantial evidence. Thus, she does
not challenge the Commission’s factual findings that there are four distinct
valid grounds supporting the Department’s decision to terminate her
employment. Instead, Mendez contends that the trial court made erroneous
legal rulings that are subject to de novo review because they were based on
undisputed facts.
Since Mendez does not challenge the sufficiency of the evidence, the
pertinent facts are set forth in the trial court’s detailed statement of decision.
(See e.g. Emma Corp. v. Inglewood Unified School Dist. (2004) 114
Cal.App.4th 1018, 1021.)1 As we will explain, many of the issues that
Mendez asks us to review involve factual disputes that were resolved against
her. None are grounds for reversal.
1 We found unhelpful the statement of facts in Mendez’s appellate
brief, which is argumentative and ignores the substantial evidence rule. (See
e.g. In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703
[under substantial evidence review, we do not look for evidence in the record
to support a different finding]; Sieg v. Fogt (2020) 55 Cal.App.5th 77, 88–89
[if the judgment is supported by substantial evidence, it does not matter
whether other facts in the record would have supported a different result];
see also Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 [trier of fact
not bound by uncontradicted testimony, when other evidence supports the
finding].)
6
II. Mendez’s Right to an Advisement of her Constitutional Rights
Mendez contends that she is entitled to reinstatement of her position
with full back pay because Deputy Chief Abalos failed to give her an
adequate advisement of her constitutional rights before interviewing her
about her timecard discrepancies. (Citing Lybarger v. City of Los Angeles
(1985) 40 Cal.3d 822 (Lybarger).) According to this argument, undisputed
facts compel a finding that the Department violated Mendez’s constitutional
rights by failing to “comply” with Lybarger.
Lybarger involved a police officer who was terminated for
insubordination because he failed to respond to questions by his employer
about a criminal investigation of activities involving his unit. (Lybarger,
supra, 40 Cal.3d at pp. 825–826.) The former officer challenged his
termination by filing a petition for writ of mandate and appealed the
judgment denying his petition. (Id. at p. 826.) Appellant claimed that he
could not be disciplined for exercising his constitutional right to remain
silent. Our Supreme Court disagreed, holding that “[a]s a matter of
constitutional law, it is well established that a public employee has no
absolute right to refuse to answer potentially incriminating questions posed
by his employer. Instead, his self-incrimination rights are deemed
adequately protected by precluding any use of his statements at a subsequent
criminal proceeding.” (Id. at p. 827.)
The Lybarger court also found that there is no statutory right to remain
silent under the Public Safety Officers Procedural Bill of Rights Act (Govt.
Code, § 3300 et seq.), which expressly contemplates that a public safety
officer’s refusal to answer questions relating to an investigation may result in
punitive action (id. at § 3303, subd. (e)). (Lybarger, supra, 40 Cal.3d at
p. 827.) However, under that Act the appellant did have a statutory right to
7
be fully informed of his constitutional rights prior to questioning by his
employer because he had been identified as a potential suspect. (Lybarger, at
pp. 828–829, citing § 3303, former subd. (g); see § 3303, subd. (h).)
The Lybarger court held that an adequate advisement in the context of
a public employer’s administrative inquiry into possible criminal conduct
should inform the employee that: (1) he or she has the right to the presence
and assistance of counsel; (2) although the officer has the right to remain
silent and not incriminate herself, silence may be deemed insubordination
and lead to administrative discipline; and (3) a statement made under
“compulsion of the threat of such discipline” may not be used against the
officer in a subsequent criminal proceeding. (Lybarger, supra, 40 Cal.3d at
p. 829.)
When the Lybarger appellant was interviewed by his former employer,
he had been advised about the adverse consequences of remaining silent, but
he was not advised that a statement made under compulsion of the threat of
discipline could not be used against him in a subsequent criminal proceeding.
(Lybarger, supra, 40 Cal.3d at p. 829.) The omission was prejudicial, the
court found, and required the trial court to “annul the administrative decision
terminating appellant’s employment” because the record showed that if
appellant and his counsel had received this advisement, appellant “might
well have elected to cooperate rather than remain silent.” (Id. at p. 830.)
In the present case, Mendez contends that the Department violated her
rights under Lybarger by failing to provide her with “use immunity” prior to
the investigatory interview conducted by Abalos, and then subsequently
claiming that her assertion of her right to remain silent constituted
insubordination. Relying on a transcript of the August 2019 internal affairs
interview, Mendez acknowledges that Abalos gave her an advisement, but
8
she contends it was “botched” and “muddled.” Moreover, Mendez argues, the
advisement was deficient because Abalos failed to “unequivocally advise” her
that she had use immunity. In its addendum to the statement of decision,
the trial court rejected Mendez’s Lybarger claim for three independent
reasons. We agree with all of them.
First, Mendez forfeited her Lybarger claim. In her appeal before the
Commission, Mendez did not contend that the Department committed a
Lybarger violation. Nor did she allege in her mandate petition that the
Commission erred by failing to overturn the Department’s decision due to a
Lybarger violation. Instead, she made this claim for the first time in her
April 27, 2021, objections to the statement of decision. These facts
substantially support the trial court’s finding that Mendez waived (or
forfeited) this claim. (Garcia v. Haralambos Beverage Co. (2021) 59
Cal.App.5th 534, 541 [“ ‘waiver is generally a question of fact, and the trial
court’s finding of waiver is binding on us if it is supported by substantial
evidence.’ ”]; Padilla v. Greater El Monte Community Hospital (2005) 129
Cal.App.4th 667, 670 [failure to timely object to purported error in the trial
court waives objection on appeal].)
Mendez argues that she did not waive the alleged Lybarger violation
because she has always maintained that she had an absolute right not to
answer questions during the Abalos interview. This argument conflates two
distinct issues. The question before us is not whether Mendez should have
answered Abalos’s questions, but whether she made a timely claim that the
Department violated Lybarger by failing to advise her adequately about her
constitutional rights. Evidence that Mendez did not make this claim until
after the trial court denied the mandate petition supports the trial court’s
finding that this claim is waived or forfeited.
9
Mendez contends that she may dispute the adequacy of the Lybarger
admonition for the first time on appeal because her claim presents an issue of
law affecting her fundamental rights. Mendez’s cited authority does not
support her contention that the adequacy of a Lybarger advisement is a “legal
issue.” For example, she relies on People v. Vera (1997) 15 Cal.4th 269. That
case, which has nothing to do with Lybarger, involved waiver of the statutory
right to a jury trial on prior-prison-term allegations. (Id. at p. 272.)
Moreover, the alleged error was forfeited in Vera because not asserted in the
trial court. (Ibid.)
Whether or not the adequacy of a Lybarger advisement presents an
issue of law, Mendez fails to demonstrate that she is excepted from the
settled principle that “ ‘ “ ‘ “a constitutional right,” or a right of any other sort,
“may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to
determine it.” ’ ” ’ ” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264; see
e.g. People v. Holt (1997) 15 Cal.4th 619, 666 [claim that “Miranda advice
was not adequate” was not “preserved for appeal”].)
Turning to the second ground for rejecting this claim, the trial court
found that Abalos delivered a proper Lybarger admonishment, and that any
confusion about the meaning of his statements was “caused by Mendez’s
attorney” who accompanied her to the interview. We agree. Contrary to
Mendez’s appellate argument, Abalos did expressly advise Mendez that “any
statement under a compulsion of a threat of discipline” could not be “used
against [her] in a subsequent criminal proceeding.” Furthermore, Mendez’s
attorney repeatedly interrupted Abalos as he attempted to read the
advisement. The extent of disruption supports an inference that it was
10
intentional, particularly in light of the trial court’s observation that counsel
engaged in disruptive behavior on other occasions during the proceedings.
Mendez’s argument that the admonishment was deficient because
Abalos refused to grant her use immunity is inconsistent with governing law.
Under Lybarger, an employer conducting a noncriminal public employment
investigation “acts legally” by demanding “job-related information from its
employee, while advising that the employee does not thereby surrender the
constitutional right against use of the information in a subsequent criminal
prosecution.” (Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704,
727 (Spielbauer).) The employer is “not further required to seek, obtain, and
confer a formal guarantee of immunity before requiring its employee to
answer questions related to that investigation.” (Id. at p. 710.)
Finally, we affirm the trial court’s ruling that any error associated with
the Lybarger advisement “is of no import because the Commission found that
there was no insubordination.” Lybarger held that a public employee who
was terminated for insubordination was entitled to have his job back because
his employer failed to advise him that statements made under a threat of
termination could not be used against him in a subsequent criminal action.
(Lybarger, supra, 40 Cal.3d at pp. 828–830.) This holding does not apply in
the present case because the Commission upheld Mendez’s termination on
grounds that did not include insubordination. Indeed, the Commission made
an express finding that Mendez’s “refusal to answer certain questions” during
the Abalos interview “per the advice of her counsel did not rise to the level of
insubordination.” Because Mendez was not terminated for insubordination,
her untimely request for reinstatement under Lybarger necessarily fails.
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III. Mendez’s Right to a Pre-Dismissal Hearing
Mendez contends the trial court committed reversible error by
disregarding her evidence that the Department violated Skelly v. State
Personnel Board (1975) 15 Cal.3d 194. In Skelly, our Supreme Court
addressed the procedural due process that must be afforded a permanent civil
service employee before terminating her employment. Skelly holds that
“preremoval safeguards must include notice of the proposed action, the
reasons therefor, a copy of the charges and material upon which the action is
based, and the right to respond, either orally or in writing, to the authority
initially imposing the discipline.” (Id. at p. 215.) In the present case, Mendez
concedes that the Department afforded her a pre-termination hearing, but
she contends the Department violated Skelly by causing the hearing to end
prematurely. She contends further that the Commission and the trial court
both erred by denying her a remedy for this alleged violation of her due
process rights.
A. Additional Background
On January 14, 2020, the Department held a noticed hearing, where
Mendez was afforded the opportunity to respond to the Department’s notice
of its intent to terminate Mendez’s employment. When the hearing convened,
Mendez, her counsel, and County Counsel appeared before a hearing officer.
Mendez’s counsel wanted to tape-record the hearing, but County Counsel
rejected the request after consulting with a supervisor. A dispute ensued,
which led the hearing officer to call for a recess. Mendez and her counsel did
not return to the hearing after the recess. Subsequently, the hearing officer
provided Mendez an opportunity to submit additional information in writing.
Mendez did not provide additional information or request an alternative
course of action.
12
During Mendez’s appeal before the Commission, the parties submitted
conflicting declarations about the impetus for the dispute that brought the
Skelly hearing to an abrupt and premature end. According to the
Department’s hearing officer, Mendez’s attorney had an outburst, which
included directing an expletive at County Counsel. But Mendez’s attorney
blamed his opponent, claiming that County Counsel repeatedly interrupted
him and then lost his temper and called Mendez’s attorney an imbecile.
Mendez was the only witness who testified about this matter at the
Commission hearing. Mendez testified that the Skelly hearing was
“ ‘aborted’ ” after a facetious interchange, but she did not provide any
“specifics” about the matter.
In her mandate petition, Mendez alleged that the Department denied
and interfered with her constitutional right to a Skelly hearing by causing
the hearing to end prematurely. She alleged further that the Commission
failed properly to consider and analyze evidence of the Department’s Skelly
violation. According to Mendez, this evidence proved that her employment
termination was retaliatory and pretextual because it shows that the
Department was in such a hurry to fire her that it could not be “bothered to
comply with its legal obligations.”
Rejecting Mendez’s contentions, the trial court affirmed the
Commission’s implicit finding that no Skelly violation had occurred.2 The
record showed that “Mendez was given a right to present evidence, orally and
2 The Commission found that, when the Department provided Mendez
with notice of its intent to dismiss her, it also provided her with a “ ‘Skelly
packet’ ” of materials upon which it based its decision, including a copy of
Abalos’s report. The Commission also found that a Skelly hearing was
scheduled and “began,” but was aborted. It found evidence of unprofessional
conduct by both County Counsel and Mendez’s counsel, and stated that
“[a]crimony” between the two men was also evident during the hearing.
13
in writing, and neither the refusal to tape record the hearing or the
purportedly unprofessional conduct by County Counsel impeded that right
(although it may have created an unpleasant environment).” And, the court
found, Mendez failed to cite any authority supportive of her position that
these factual circumstances violated Skelly. The court also observed that
even if a Skelly violation had occurred, the remedy would be backpay
damages for the period from the date of actual termination until a full
hearing was held before the Commission. (Citing Barber v. State Personnel
Bd. (1976) 18 Cal.3d 395, 402 (Barber).) In her prayer, Mendez did not seek
damages specific to this time period. She requested reinstatement and full
backpay, which is not an available remedy for a Skelly violation, the court
found.
B. Analysis
Mendez contends the trial court erred by ignoring undisputed evidence
that “misconduct” by County Counsel interfered with her constitutional right
to a full and fair Skelly hearing. As discussed, the evidence was not
undisputed and the trial court did not ignore it. Instead, the record shows
that the court based its ruling on the weight of the evidence and Mendez’s
failure to cite any authority entitling her to relief. On appeal, Mendez again
fails to cite pertinent authority. And her contention that undisputed facts
entitle her to relief mischaracterizes the record.
Mendez also contends that the trial court erred by finding that she
waived her right to Skelly damages. Again, that is not what the court found.
The court pointed out correctly that a Skelly error would not entitle Mendez
to reinstatement of her employment. (Barber, supra, 18 Cal.3d at p. 402.)
The remedy for a Skelly violation is backpay damages for the period that the
discipline was wrongfully imposed, which means the period from the date of
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actual discipline to the time that the discipline is upheld at a proper hearing.
(Barber, at p. 402.) Mendez’s mandate petition did not include a request for
backpay damages for the discrete period when a Skelly violation allegedly
occurred. Instead, her only pleaded theory was that the alleged violation
proved that the Department’s stated grounds for terminating Mendez’s
employment were pretextual. But since the trial court correctly concluded
Mendez failed to establish a Skelly violation, the issue of damages is, in any
event, moot.
IV. Mendez’s Right to Accommodations
Mendez contends the judgment must be reversed because the trial
court and the Commission ignored evidence that the Department refused to
make accommodations for her disability.
A. Additional Background
As discussed, Abalos interviewed Mendez about her timecard
discrepancies on August 16, 2019. On August 19, Mendez was seen by a
Marriage and Family Therapist who provided her with a letter stating:
“Michelle Mendez was seen in my office on 8/19/19. She is unable to work
effective 8/19/19– 9/19/19 for mental health reasons due to continuing
workplace stress. If you have any questions, or concerns please feel free to
contact me.” Mendez took a leave of absence from her work later that month.
In October 2019, Mendez’s therapist provided another letter stating
that Mendez was in his care for “Acute stress disorder” caused by ongoing
workplace stress and that she was unable to “work effectively as of 8/19/19.”
In a February 1, 2020, letter, Mendez’s therapist stated that Mendez
continued to receive treatment for her acute stress disorder related to
workplace stress and that she would be “unable to return to her work duties”
until June 1, 2020.
15
On February 6, 2020, Mendez received an email regarding the status of
her disability claim from Tracy Ford, a program manager with the County’s
Human Resources Department. Ford notified Mendez that her
documentation of her disability was not sufficient because it did not describe
adequately the impairment limits Mendez was suffering or how they
impacted Mendez’s ability to perform essential job functions. Ford stated
that she would be sending a supplemental medical questionnaire to Mendez’s
physician to help the County better understand work restrictions that may
need accommodation. On February 13, Ford sent Mendez a follow-up email,
which stated that Ford had been informed that Mendez was terminated from
her employment. Ford notified Mendez that she would close her file “at this
time,” but she invited Mendez to reach out if she returned to County
employment and required an accommodation.
In her mandate petition, Mendez alleged that the Department violated
the California Fair Employment and Housing Act (FEHA) and the Americans
With Disabilities Act (ADA) by terminating Mendez’s employment without
engaging in a “ ‘mandatory interactive process’ ” to attempt to accommodate
her disability. Mendez alleged further that the Commission failed to consider
and analyze properly evidence that the Department failed to engage with her
about accommodating her disability. According to Mendez, the Commission
“brushed this evidence aside” because it concluded that Mendez had other
recourses for violations of the FEHA and ADA. Mendez alleged that the
Commission erred because it should have recognized that the Department’s
failure to engage in an interactive process with Mendez was “directly relevant
to the pretextual nature of the termination because it shows that [the]
Department was in such a hurry to terminate [her] employment that it could
not even be bothered to comply with its legal obligations.”
16
The trial court found that Mendez’s disability claim did not require
reversal of the Commission’s decision. For one thing, Mendez’s contention
that the Commission failed to consider this matter was not true; the
Commission admitted evidence pertaining to Mendez’s disability claim and
expressly addressed the matter in its decision. Further, evidence before the
Commission showed that Mendez’s disability claim and accommodation
request “post-dated the conduct in question and the internal affairs
interview.” In light of this evidence, the court found that “the Commission
did not abuse its discretion by upholding Mendez’s termination
notwithstanding her unrelated disability claim.”
B. Analysis
Mendez contends that the “trial court’s finding dismissing the import of
[the] Department’s failure to accommodate Mendez’s disability is
fundamentally erroneous.” The court did not dismiss the importance of this
issue. It concluded that the Commission acted within its discretion by
upholding an employment termination decision that had nothing to do with
Mendez’s request for a disability accommodation.
Mendez insists that the Department violated an independent and
ongoing duty to engage in an interactive process with her about
accommodating her disability. (Citing Swanson v. Morongo Unified School
Dist. (2014) 232 Cal.App.4th 954, 971–972: Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 243–244; Claudio v. Regents of
University of California (2005) 134 Cal.App.4th 224, 243.) In contrast to the
authority upon which Mendez relies, the present appeal does not arise from a
civil action alleging employment discrimination on the basis of a known
disability. Mendez seeks judicial review of an administrative ruling
17
terminating her public employment for reasons that are wholly unrelated to
her stress-related disability.
In upholding Mendez’s dismissal, the Commission made a finding that
it was “not within the province of the Commission to adjudicate whether the
County complied with legal obligations under the ADA and/or FEHA.” In
concluding that the Commission acted within its discretion, the trial court
made a finding that Mendez did not suffer a disability and/or request a
disability accommodation from the Department until after she engaged in
conduct that resulted in her termination. This finding is supported by
substantial if not undisputed evidence. We add that Mendez has never
alleged that she was terminated because of the acute stress-related disability
that surfaced after she was investigated and questioned about misreporting
her time. We do not question that becoming the subject of an internal affairs
investigation of this nature would be stressful and could even cause a
disability. But Mendez cites no authority supportive of her legal theory that
she is entitled to reinstatement if the Department failed to interact with her
adequately about accommodating a disability that arose after she engaged in
the conduct that justified terminating her employment.
V. Mendez’s Right to Present Evidence Regarding the Department’s
Treatment of Similarly Situated Employees
Mendez contends the Commission denied her constitutional due process
by precluding her from introducing evidence that similarly situated
employees of the Department were not terminated for violating the
Department’s timekeeping policies. According to this argument, the
Commission denied Mendez due process by (1) sustaining objections to a
subpoena that Mendez served on the Department during her administrative
appeal, and then (2) precluding Mendez from cross examining a Department
18
witness who was permitted to testify that other employees have been
disciplined for timekeeping violations.
A. Additional Background
During her administrative appeal, Mendez served a subpoena duces
tecum on the Department seeking “documents ‘sufficient to identify
disciplinary action taken by [the Department] against any of it employees for
alleged misconduct similar to the misconduct cited . . . as a basis for its
decision to terminate Ms. Mendez’s employment.’ ” Mendez requested
documents showing “ ‘the names of the employees subject to discipline, the
nature of the alleged misconduct, the dates of the alleged misconduct, and the
form of discipline imposed.’ ” The Department objected to the subpoena,
arguing it was untimely and that its employees had constitutionally
protected privacy rights in their personnel files. On June 2, 2020, the
Commission heard argument on the matter and then sustained the
Department’s objections.
During the evidentiary hearing before the Commission, the
Department called Assistant Chief MacAskill as a witness. Under direct
examination, MacAskill testified that she was aware of other “instances”
when the Department intended to terminate an employee for “time card
related issues,” but the matters “may have been resolved in another way.”
Under cross-examination, MacAskill clarified that she recalled instances
when the Department intended to terminate employees for timekeeping
violations, but the employees retired or resigned instead. When Mendez’s
counsel asked for the names of these other employees, the Department’s
counsel instructed MacAskill not to answer the question because it called for
confidential information. The two attorneys debated briefly whether the
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identities of other employees should be disclosed; this debate ended when
Mendez’s counsel stated that she would “move on.”
On July 17, 2020, several days after the Commission announced its
decision to uphold the Department’s termination of Mendez’s employment,
Mendez filed a Public Records Act request with the County seeking
documents and other information regarding appeals from disciplinary
decisions that had been filed with the Commission since January 2015. The
request contained 24 broadly-worded categories, which would have included
documents pertaining to appeals from employee discipline decisions by the
Department that involved violations of timekeeping policies. In late July, the
County produced “disclosable” documents pursuant to Mendez’s request. A
dispute ensued, which County Counsel attempted to resolve by providing
Mendez’s counsel with additional information. In an August 11, 2020, letter,
County Counsel stated that, aside from Mendez’s case, appeals heard by the
Commission during the specified period did not involve disciplinary action
against an employee for “overstating in timesheets the amount of time
actually worked.”
In her mandate petition, Mendez alleged that the Commission “unfairly
and improperly” facilitated the Department’s concealment of “fatally
damaging” evidence establishing that the Department has not disciplined any
other employee for timecard violations. She based this claim on allegations
that (1) her subpoena was reasonable and sought relevant evidence; (2) she
was precluded from cross-examining MacAskill about her direct testimony
that “the Department had previously disciplined other (unnamed) employees
for similar violation”; and (3) the Department admitted that it had never
terminated any other employee for a time-keeping violation in its response to
Mendez’s Public Records Act request.
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The trial court found that the Commission acted within its discretion
by denying Mendez the right to compel the disclosure of “the names and
disciplinary records of employees who were not part of the proceeding.” The
court reasoned that an employee’s constitutionally protected right to privacy
applies to subpoenas in administrative proceedings, and that balancing those
privacy rights against Mendez’s right to potentially relevant documents was
a matter of discretion. (Citing Sehlmeyer v. Department of General Services
(1993) 17 Cal.App.4th 1072.) Concluding that the Commission did not abuse
its discretion under the circumstances presented, the court found, among
other things that: (1) Mendez’s subpoena was overbroad; (2) third-party
employees had a strong privacy interest in their personnel records and had
not been served with notice of the subpoena; and (3) the information that
Mendez sought was relevant to her disparate treatment claim, but she had
the opportunity to examine the Department’s witnesses and to present her
own witnesses who testified about the Department’s timekeeping policies and
practices.
The trial court also rejected Mendez’s contention that the Commission
precluded her counsel from cross-examining MacAskill. This allegation was
not supported by the record, the court found.
B. Analysis
Mendez fails to show that the Commission erred by sustaining
objections to her subpoena. As Mendez contends, disparate treatment of
similarly situated employees may be relevant to prove pretext in an
employment discrimination case. (Wills v. Superior Court (2011) 195
Cal.App.4th 143, 172 (Wills).) But, contrary to Mendez’s appellate
arguments, neither the Commission nor the trial court found otherwise.
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The Commission sustained the Department’s objections to Mendez’s
subpoena “on the grounds of untimeliness and the constitutional privacy
rights of employees with respect to their personnel files.” Both objections
were valid. Under our state constitution, citizens have a privacy interest in
precluding the “dissemination or misuse of sensitive and confidential
information.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,
35.) In an administrative proceeding, as in civil litigation, when a party
seeks to compel disclosure of third-party confidential information, the privacy
rights of the third party must be protected by balancing them against the
party’s right to relevant discovery. (Sehlmeyer, supra, 17 Cal.App.4th at
pp. 1078–1079.) Moreover, “before confidential third party personal records
may be disclosed in the course of an administrative proceeding, the
subpoenaing party must take reasonable steps to notify the third party of the
pendency and nature of the proceedings and to afford the third party a fair
opportunity to assert her interests by objecting to disclosure, by seeking an
appropriate protective order from the administrative tribunal, or by
instituting other legal proceedings to limit the scope or nature of the matters
sought to be discovered.” (Sehlmeyer, at pp. 1080–1081.)
Substantial evidence supports the trial court’s finding that the
Commission acted within its discretion by concluding that the privacy
interests of nonparties outweighed Mendez’s right to discover potentially
relevant evidence contained in the personnel files of nonparty employees.
Mendez was able to support her claim that the Department did not discipline
similarly situated employees through her questioning of employee witnesses
who she called to testify at her appeal hearing, and by cross-examining the
Department’s witnesses. The Commission could have concluded reasonably
that the probative value of additional evidence that may have been garnered
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from personnel records did not justify invading the strong privacy rights of
third parties who had no stake in the proceeding. Moreover, as the trial court
found, the introduction of this additional evidence “would have required
inquiry as to the similarities between the cases, including whether the same
decision makers were involved, requiring substantive time and raising
Evidence Code [section] 352 concerns.” (See e.g. Wills, supra, 195
Cal.App.4th at p. 172 [for purposes of establishing disparate treatment,
“[a]nother employee is similarly situated if, among other things, he or she
‘ “engaged in the same conduct without any mitigating or distinguishing
circumstances” ’ ”].)
In her appellate briefs, Mendez does not dispute that she was
permitted the opportunity to elicit disparate treatment evidence from
witnesses who testified before the Commission. She only repeats her claim
that the Commission precluded her from cross-examining MacAskill. As the
trial court found, “Mendez fails to demonstrate that her counsel was
precluded from questioning MacAskill.” The only question that the
Department’s counsel instructed MacAskill not to answer asked for the
names of employees whom the Department had considered disciplining
because of timecard violations. Mendez’s counsel did not request a ruling
from the Commission regarding that specific issue. Even if the Commission’s
silence could be construed as affirming the Department’s objection, Mendez
was not precluded from questioning MacAskill about these incidents, but only
from discovering the names of the individuals involved.
Finally, Mendez contends that evidence pertaining to her Public
Records Act request compels us to reverse the Commission’s decision.
Mendez acknowledges that she did not file her Public Records Act request
until after the administrative hearing was completed, but she contends that
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the County’s response to her request is admissible proof that the Commission
violated her due process right to a fair hearing. (Citing Windigo Mills v.
Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 596.) This
convoluted due process argument rests on the following contentions: first,
the Department responded to Mendez’s Public Records Act request by finally
admitting that it has never terminated another employee for violating its
timekeeping policies; second, the Department’s admission of this fact proves
that there were no documents responsive to Mendez’s subpoena; third, the
fact that there were no documents responsive to the subpoena proves that the
Department’s privacy objection was “completely disingenuous”; and finally,
the fact that the Commission sustained the Department’s disingenuous
objection proves that the Commission improperly facilitated the
Department’s concealment of the fact that it has never disciplined anyone but
Mendez for violating timekeeping policies.
We disagree with Mendez’s characterization of her Public Records Act
evidence, and we decline to adopt her unreasonable inferences. First, this
evidence is irrelevant to our review of the Commission’s discovery ruling
because Mendez did not even file her Public Records Act request until after
her administrative appeal was denied. Second, this evidence does not justify
an inference that the Department’s objection to Mendez’s subpoena was
disingenuous. Contrary to Mendez’s appellate argument, the Department did
not admit anything by responding to the Public Records Act request because
it was the County rather than the Department upon whom the request was
made, and that request sought documents pertaining to appeals filed with
the Commission, rather than documents from the confidential personnel files
of Department employees. In any event, the crux of this due process claim is
that Mendez was precluded from presenting evidence that the Department
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had not terminated other employees for misreporting their time. The record
shows otherwise. Under cross-examination by Mendez’s counsel, MacAskill
testified that there were other instances in which the Department intended
to terminate employees for misreporting their time, but the matters were
resolved when the employees retired or resigned.
VI. Mendez’s Right to a Fair Hearing Before the Commission
Mendez contends that she was denied due process because the
Commission was biased against her and disregarded her rights during the
administrative hearing.
A. Additional Background
In her mandate petition, Mendez alleged that the Commissioners’
conduct at the administrative hearing “consistently evidenced [the
Commission’s] bias, inattentiveness, dereliction of its obligations to Mendez
and indifference to Mendez’s fundamental vested right.” This conduct
allegedly included denying Mendez sufficient time to present her case,
deliberately failing to pay attention to Mendez’s evidence, improper
examining of a witness, and drawing adverse inferences from Mendez’s
assertion of her Fifth Amendment rights.
The trial court concluded that the Commission provided Mendez a fair
trial, there was no error in the way the hearing was conducted, and the
Commission was not inattentive or biased against Mendez. Each of these
conclusions was supported by findings of fact based on the trial court’s
independent review of the hearing record.
In concluding that Mendez received a fair hearing, the court found that
Mendez was afforded “a full opportunity to present her case,” and that the
Commission acted within it authority by excluding irrelevant and repetitious
evidence. The court also found that Mendez misstated the record in arguing
25
that the Commissioners told her that she could not have more than one day
for her hearing. Rejecting Mendez’s critique of the way the hearing was
conducted, the court found, among other things that the Commission had
authority to conduct an informal hearing. During a brief interchange, a
commissioner asked an unsworn witness a question about the Department’s
timekeeping system, but the Commission did not rely on that information to
reach its decision, making any error harmless.
In rejecting Mendez’s contention that Commissioners did not pay
attention during the hearing, the court credited declarations that had been
submitted by the Commissioners instead of a declaration submitted by
Mendez’s sister. Further, the court’s independent review of the hearing
transcript showed that the Commissioners “were engaged and asked proper
questions in an appropriate manner.” The court also made an express
finding that the Commission was “justified in asking counsel to get to the
point quickly with witnesses and then to move on,” citing a specific example
in the transcript.
In concluding that the Commission was not biased against Mendez, the
court found, among other things, that the questions that Commissioners
asked witnesses evinced a genuine effort to understand the case. The court
also found no evidence to support Mendez’s contention that the
Commissioners drew an adverse inference from the fact she had exercised her
Fifth Amendment rights at the internal affairs interview. In reaching this
conclusion, the court pointed out that the Commission made an express
finding that Mendez’s invocation of these rights during the Abalos interview
was not insubordination.
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B. Analysis
On appeal, Mendez contends that the Commission’s conduct during the
administrative hearing “consistently evidenced” bias, inattentiveness, and
disregard for Mendez’s fundamental rights. “When due process requires a
hearing, the adjudicator must be impartial.” (Haas v. County of San
Bernadino (2002) 27 Cal.4th 1017, 1025.) This due process requirement
applies at adjudicative proceedings conducted by an administrative body.
(Morongo Band of Mission Indians v. State Water Resources Control Bd.
(2009) 45 Cal.4th 731, 737.) A due process violation can be established by
proof of actual bias or by showing that the specific situation created too high
a probability of bias. (Ibid.) But an adjudicator with no financial interest in
the outcome is “presumed to be impartial.” (Ibid.)
Mendez purports to support her claim of bias with a list of
inflammatory accusations accompanied by string citations to the record. We
are not persuaded by this subjective critique of the Commissioners’ conduct.
To begin with, Mendez ignores the trial court’s findings of fact, and evidence
supporting them. Arguments in an appellant’s brief that are unsupported by
adequate factual or legal analysis may be deemed forfeited. (Singh v.
Lipworth (2014) 227 Cal.App.4th 813, 817.) Furthermore, Mendez relies
heavily on a declaration by her sister that was filed in support of her
mandate petition. As discussed, the trial court was not persuaded by that
declaration. “[T]he testimony of a witness which has been rejected by the
trier of fact cannot be credited on appeal unless, in view of the whole record,
it is clear, positive, and of such a nature that it cannot rationally be
disbelieved.” (Beck Development Co. v. Southern Pacific Transportation Co.
(1996) 44 Cal.App.4th 1160, 1204.) Finally, Mendez continues to
mischaracterize the record. For example, the trial court made an express
27
finding that the Chairperson of the Commission “did not state, as Mendez
claims, that the hearing would only last one day.” Mendez ignores this
finding and repeats her erroneous claim in her appellate brief. She contends
further, that the Commissioners informed her they did not “care” if she had
time to present her case. Mendez’s record citations do not support these
factual representations. With these considerations, we affirm the trial court’s
findings that the Commission afforded Mendez a fair hearing and was not
biased against her.
VII. Mendez’s Right to Findings Regarding Material Issues
Finally, Mendez contends that the decision by the Commission is
“unsupported and arbitrary” because it “fails properly to evaluate Mendez’s
evidence.” This conclusory argument eschews any substantive discussion of
the Commission’s written findings of fact and decision. Furthermore,
Mendez’s contention that her evidence was not properly evaluated is
contradicted by her admission that the judgment upholding her termination
is supported by substantial evidence.
Mendez intimates that the Commission’s decision is deficient because it
is not supported by findings, citing Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506. As we have discussed, in a
mandate proceeding filed under section 1094.5, the court reviews an agency
decision to determine if it is supported by the agency’s findings and if those
findings are supported by the evidence. Topanga holds that “implicit in
section 1094.5 is a requirement that the agency which renders the challenged
decision must set forth findings to bridge the analytic gap between the raw
evidence and ultimate decision or order.” (Topanga, at p. 515.) Because the
purpose of these findings is to “direct the reviewing court’s attention to the
analytic route the administrative agency traveled from evidence to action,”
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section 1094.5 precludes the reviewing court from speculating “as to the
administrative agency’s basis for decision.” (Topanga, at p. 515.)
More recently, our Supreme Court has clarified that the agency’s
findings “do not need to be extensive or detailed.” (Environmental Protection
Information Center v. California Dept. of Forestry & Fire Protection (2008) 44
Cal.4th 459, 516.) “ ‘ “[W]here reference to the administrative record informs
the parties and reviewing courts of the theory upon which an agency has
arrived at its ultimate finding and decision it has long been recognized that
the decision should be upheld if the agency ‘in truth found those facts which
as a matter of law are essential to sustain its . . . [decision].” ’ ” (Ibid.)
In the present case, after the Commission denied Mendez’s
administrative appeal, it issued a 10-page decision containing detailed
findings, which establishes the “analytic route the administrative agency
traveled from evidence to action.” (Topanga, supra, 11 Cal.3d at p. 515.)
Mendez’s contrary contention is without merit.
DISPOSTION
The judgment is affirmed. Costs are awarded to the respondents.
TUCHER, P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
Mendez v. Civil Service Commission, County of San Mateo et al. (A163271)
29