Tunucci v. City and County of S.F. CA1/3 ( 2022 )

Filed 9/15/22 Tunucci v. City and County of S.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
VERONICA TUNUCCI,
Plaintiff and Appellant, A163344
v.
CITY AND COUNTY OF SAN (City & County of San Francisco
FRANCISCO et al., Super. Ct. No. CPF-21-517418)
Defendants and Respondents.
Plaintiff Veronica Tunucci works in the Office of the Assessor-Recorder
(Department) for the City and County of San Francisco (City). In 2019, the
Department imposed a five-day suspension on Tunucci for insubordination
and unprofessional conduct. She challenged the suspension; a mutually
selected third party neutral conducted an evidentiary hearing, found that
Tunucci had been insubordinate and engaged in unprofessional conduct, and
affirmed the suspension. Tunucci thereafter filed a petition for writ of
administrative mandamus in the trial court, but the court denied the writ
after concluding substantial evidence supported the suspension. Tunucci —
representing herself — appeals. She contends she was deprived of a fair trial
and insufficient evidence supported her suspension. We disagree and affirm.
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BACKGROUND
The Department, among other things, receives documents for recording
property, determines whether the documents are recordable, and maintains
public records for all taxable property. Tunucci was a supervisor of the
recording unit, where she oversaw ten employees and determined whether
documents submitted for recordation met recording standards. Tunucci
reported directly to the recording and transactions manager, Kurt Fuchs.
On October 26, 2018, Fuchs gave Tunucci a verbal warning regarding
inappropriate behavior. In one instance, Tunucci accused a City employee of
intentionally excluding her work area from an office redesign, and she
refused to speak with a deputy director about the incident. In another
incident, Tunucci chastised a Department manager about decisions regarding
a project, stating in an e-mail, “ ‘[t]his was another less than stellar plan from
you and [Fuchs].’ ” On two separate occasions in October, Tunucci publicly
berated Department managers. Given the foregoing, Fuchs warned Tunucci
that e-mails and communications “with an accusatory and chastising tone[]
are not appropriate to send to any Department employees.” Shortly after,
Tunucci e-mailed the human resources department and expressed her belief
that the warning was in retaliation for her filing a discrimination complaint
on behalf of one of her employees earlier that month.
In November 2018, Tunucci received a written warning for
inappropriate workplace behavior; again, the warning concerned her e-mails
and communication. She sent a manager an e-mail alleging he fabricated
reports about her conduct and sought to destroy relationships — a
communication Fuchs deemed inflammatory and violative of his previous
verbal warning. The written warning noted “similar incidents may lead to
further discipline, up to and including dismissal.”
2
On May 16, 2019, the Department received a parcel division grant
deed. An examiner flagged that the deed lacked a proper granting clause.
The same day, Fuchs instructed Tunucci to reject the document. He also sent
an e-mail to the recording unit —including Tunucci — noting there is no
provision that would allow recording of the deed. Tunucci thereafter rejected
the deed. The next day, the deed was again submitted for recording, and
Tunucci asked Fuchs how to proceed. During a meeting with Tunucci, Fuchs
stated the deed should once more be rejected. She questioned why, but Fuchs
did not indicate he had changed his mind about rejecting the deed.
Nevertheless, shortly after the meeting, Tunucci sent an e-mail directing her
employees to record the deed.
A few days later, Fuchs sent staff an e-mail noting the deed should not
have been recorded and explaining why future deeds with the same
deficiencies should be rejected. Tunucci forwarded this internal e-mail to
personnel at other agencies — including the City’s real estate division and
the City Attorney’s Office — as well as Fuchs and directors of the
Department. She asked the external agencies to clarify why the document
should have been recorded and to justify her actions to Fuchs. Tunucci and
the other agencies removed Fuchs from their subsequent e-mail exchanges,
including an e-mail regarding how to placate Fuchs and another in which
Tunucci thanked these agencies for defending her.
The Department subsequently charged Tunucci with
insubordination — as relevant here, for disregarding Fuchs’s directive to
reject the deed — and unprofessional conduct — for soliciting external
feedback and ratification for her actions; it recommended a five-day
suspension. After a Skelly v. State Personnel Board (1975) 15 Cal.3d 1943
(Skelly)1 hearing, the hearing officer agreed with the Department’s charges
and found Tunucci engaged in insubordinate and unprofessional behavior.
The Department suspended Tunucci for five days in September 2019.
Tunucci sought review by a third party neutral, Christopher D.
Burdick. At a June 2020 hearing, Tunucci represented herself and had an
opportunity to present evidence and cross-examine witnesses. Burdick
ultimately found she engaged in insubordinate behavior by ordering staff to
record a deed that Fuchs clearly stated should be rejected. Burdick rejected
her argument that suspension was inappropriate because the Department
lacked rules regarding insubordination and unprofessional conduct. He noted
arbitrators have previously held employee discipline is appropriate for
disregarding a supervisor’s orders even in the absence of a rule precluding
that type of insubordination. He also found Tunucci engaged in
unprofessional conduct by attempting to ratify her decision to record the
document, undermining Fuchs’s decision-making authority. The five-day
suspension, according to Burdick, was not arbitrary or capricious given the
prior warnings Tunucci received in October and November 2018 regarding
inappropriate conduct.
Tunucci subsequently filed a petition for writ of administrative
mandamus to set aside Burdick’s decision, arguing the findings were
unsupported by the evidence and the hearing was substantively and
procedurally defective.2 (Code Civ. Proc., § 1094.5, subd. (a); undesignated
1Under Skelly, employees must be afforded administrative procedures
including an opportunity to respond to charges upon which discipline is
based. (Skelly, supra, 15 Cal.3d at p. 215.)
2 Although Burdick was named as a respondent in Tunucci’s petition
for a writ of administrative mandamus, the parties stipulated Burdick was
not required to file a response to her petition.
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statutory references are to this code.) The trial court denied the writ. It
concluded she received a fair trial and Burdick’s decision was supported by
the evidence. The five-day suspension, according to the court, was also fair
because Tunucci received progressive discipline regarding her
communications in the form of the October and November 2018 warnings.
DISCUSSION
In certain circumstances, a trial court may review an administrative
agency’s final decision via a writ of administrative mandamus. (§ 1094.5,
subd. (a) [review authorized where decision is made as a result of a
mandatory hearing at which evidence must be taken, and determination of
facts is vested in the inferior tribunal or board].) The petitioner must
demonstrate the agency acted without or in excess of jurisdiction, there was
no fair trial, or there was a prejudicial abuse of discretion. (Id., subd. (b).)
An “abuse of discretion is established if the court determines that the
findings are not supported by substantial evidence in light of the whole
record.” (Id., subd. (c).) The relevant standard of review in the trial court
depends on the nature of the right affected by the administrative decision.
(Ibid.; MHC Operating Limited Partnership v. City of San Jose (2003)
106 Cal.App.4th 204, 217.) When the decision substantially effects a
fundamental vested right, such as suspension of a professional license or
termination, the court exercises its independent judgment to determine
whether the evidence supports the administrative decision. (§ 1094.5, subd.
(c); MHC Operating, at p. 217; Bixby v. Pierno (1971) 4 Cal.3d 130, 145.) In
all other circumstances, the court reviews the whole administrative record for
substantial evidence. (§ 1094.5, subd. (c).)
Where the trial court reviewed the administrative decision for
substantial evidence, as here, rather than independently reviewing the
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record, we review the entire administrative record to determine whether
substantial evidence supports the agency’s decision, not the trial court’s
decision. (MHC Operating Limited Partnership v. City of San Jose, supra,
106 Cal.App.4th at pp. 217–218.) In doing so, we determine whether any
evidence or reasonable inferences from the evidence, viewed in the light most
favorable to the administrative order, will support the findings of fact.
(Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849, fn. 11.) We
do not resolve evidentiary conflicts, reweigh the evidence, or assess the
credibility of witnesses. (Do v. Regents of University of California (2013)
216 Cal.App.4th 1474, 1492.) The person challenging the findings has the
burden of showing the findings are unsupported or incorrect. (Antelope
Valley Press, at p. 849, fn. 11.) We review whether the penalty imposed was
an abuse of discretion, that is, arbitrary, capricious, or patently abusive.
(Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627–
628.)
Preliminarily, we reject Tunucci’s argument that the trial court
erroneously reviewed Burdick’s decision under a “reasonable person”
standard rather than for substantial evidence. The court expressly applied
“ ‘the substantial evidence test,’ ” stating it could not substitute its own
judgment if the administrative decision “ ‘is one which could have been made
by reasonable people.’ ” Whether a “reasonable person could reach the
conclusion reached by the administrative agency, based on the entire record
before it” is a component of the substantial evidence review. (Do v. Regents of
University of California, supra, 216 Cal.App.4th at p. 1490.) The court
applied the correct standard of review.
More importantly, the evidence amply supported the finding Tunucci
engaged in insubordinate behavior. Fuchs directed Tunucci to reject a deed
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that did not comply with statutory requirements. He e-mailed the recording
unit, including Tunucci, noting there is no provision that would allow
recording of that deed to effect a parcel split. There is no dispute Tunucci
initially rejected the document. The next day, after the same deed was again
submitted, Fuchs met with Tunucci and instructed her to reject the deed.
Despite this, Tunucci told her employees to record the deed, directly
contradicting Fuchs’s directive. Tunucci’s suggestion that recording the deed
was appropriate under the Government Code does not alter our conclusion.
Aside from making conclusory statements, she has failed to develop any
argument that Fuchs’s directive was in fact contrary to the law. (Berger v.
Godden (1985) 163 Cal.App.3d 1113, 1119 [appellate court not required to
consider alleged error “where the appellant merely complains of it without
pertinent argument”].) The relevant issue here is whether Tunucci
disregarded her supervisor’s directive, not whether recording the deed could
be justified under a statute. And while Tunucci urges us to reject Fuchs’s
testimony regarding the sequence of events in favor of conflicting evidence —
i.e., her recollection of a meeting in which Fuchs indicated the deed could be
recorded with any deficiencies fixed at a different date — her argument
ignores the standard of review. (Do v. Regents of University of California,
supra, 216 Cal.App.4th at p. 1492.) Burdick considered the conflicting
evidence and credited Fuchs’s testimony. We defer to that credibility
assessment here.
Similarly, substantial evidence supports the finding Tunucci engaged
in unprofessional conduct. After the deed was improperly recorded, Fuchs
sent the Department an e-mail outlining and explaining his instructions on
handling future deeds with similar deficiencies. Without first discussing it
with Fuchs, Tunucci forwarded his internal e-mail to personnel in other City
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agencies, requesting their input on Fuchs’s views. Individuals at those
agencies acknowledged Tunucci’s intention was, in part, to placate Fuchs,
who was excluded from several e-mails. Tunucci told the other agencies’
employees that they were “very kind to come to [her] defense.” Viewed in its
entirety, it is reasonable to conclude Tunucci’s conduct undermined Fuchs’s
decision-making authority within the Department and his relationship with
other City departments, and was thus unprofessional. Tunucci has not
persuaded us otherwise. (Antelope Valley Press v. Poizner, supra,
162 Cal.App.4th at p. 849, fn. 11.)
We reject Tunucci’s assertion, relying on Government Code sections
19571 and 19572, she was not unprofessional or insubordinate since she did
not violate an explicit rule or policy. Those statutes, authorizing discipline of
any state civil service employee only for a delineated cause, are inapplicable
to City employees.3 (Gov. Code, §§ 19571, 19572; Deegan v. City of Mountain
View (1999) 72 Cal.App.4th 37, 49–50.) Burdick, relying on prior arbitration
decisions — which Tunucci does not challenge — determined conduct could be
deemed insubordinate or unprofessional even in the absence of a technical
rule or regulation. Those decisions conclude it is unreasonable for employees
to believe they are free from discipline for disregarding a supervisor’s orders
in the absence of a rule or regulation against “insubordination.” Tunucci fails
to identify any other authority that she cannot be charged with
insubordination and unprofessional conduct in the absence of explicit rules
against that behavior. (Ewald v. Nationstar Mortgage, LLC (2017)
13 Cal.App.5th 947, 948 [“We repeatedly have held that the failure to provide
3Even if the Department were required to adhere to those statutes
here — which we do not find — they authorize discipline for discourteous
treatment of other employees. (Gov. Code, § 19572, subd. (m).)
8
legal authorities to support arguments forfeits contentions of error”].) In any
event, as Tunucci acknowledged below, the Department had a policy for
employees to “conduct themselves at all times in a professional manner.”
With respect to Tunucci’s five-day suspension, the circumstances
surrounding her misconduct and the likelihood of its recurrence convince us
this discipline was not an abuse of the Department’s discretion. (Skelly,
supra, 15 Cal.3d at p. 218.) In October and November 2018, Tunucci received
two warnings regarding inappropriate behavior; notably, the November
warning determined Tunucci had engaged in behavior she had previously
been warned about one month earlier. The November warning also expressly
advised Tunucci of further discipline “up to and including dismissal” if she
had further incidents of inappropriate behavior. Tunucci nonetheless
engaged in inappropriate behavior again in May 2019 by ignoring Fuchs’s
directive and engaging in unprofessional conduct. Given these repeated
warnings and continued inappropriate behavior, it was reasonable to infer
Tunucci would likely engage in inappropriate behavior again. (Ibid.)
The five-day suspension was not disproportionately harsh compared to
the gravity of the offense, contrary to Tunucci’s suggestion. We cannot
substitute our discretion regarding the degree of punishment imposed if the
Department acted within its discretion. (Deegan v. City of Mountain View,
supra, 72 Cal.App.4th at pp. 46–47 [“[i]f reasonable minds may differ as to
the propriety of the penalty imposed, there has been no abuse of discretion”].)
We also reject Tunucci’s assertion the penalty is inappropriate because she
never received any prior warnings expressly regarding insubordination or
unprofessional conduct. Aside from citing a comment interpreting
unemployment and disability compensation regulations (Cal. Code Regs., tit.
22, foll. § 1256-36, com. before example 1) — regulations that are not
9
applicable here — Tunucci fails to cite anything to support her assertion
employees must have a warning regarding the specific inappropriate conduct
before the employee may be disciplined. Regardless, by first warning Tunucci
multiple times about her inappropriate behavior and then suspending her for
insubordination and unprofessional conduct — additional inappropriate
behavior — the Department complied with principles of progressive
discipline. (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230 [two-
day suspension followed by discharge was progressive discipline].)
Finally, we reject Tunucci’s remaining arguments. First, she was not
deprived of due process. Prior to being suspended, Tunucci was provided
a copy of the insubordination and unprofessional conduct charges, and the
materials upon which the action was based. (Skelly, supra, 15 Cal.3d at
p. 215.) She was given a hearing during which she could respond to the
Department’s charges and disciplinary action. (Ibid.) After the hearing, she
submitted additional amendments to the evidence she presented to the
hearing officer, to which the Department then responded; she was not
precluded from presenting evidence to contest her charges. Second, Burdick
and the trial court did not err by failing to conclude the Department’s
suspension was in retaliation for her filing a discrimination complaint on
behalf of another employee. Burdick did not rule on that issue because
Tunucci had a federal Equal Employment Opportunity Commission
retaliation complaint and internal Department retaliation complaint pending
at the time of her hearing. Tunucci has not identified any authority that this
decision was erroneous.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A163344
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