Ramirez v. California State Personnel Board CA1/4

Filed 9/29/23 Ramirez v. California State Personnel Board CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MICHAEL RAMIREZ,

Plaintiff and Appellant,

v.

CALIFORNIA STATE A165897

PERSONNEL BOARD,

(San Francisco City &

Defendant and Respondent,

County Super. Ct. No.

CPF-19-516933)

CALIFORNIA DEPARTMENT

OF FORESTRY AND FIRE

PROTECTION,

Real Party in Interest.

Plaintiff Michael Ramirez appeals from the denial of his

petition for a writ of administrative mandamus under Code of

Civil Procedure section 1094.5 seeking to set aside his

termination from the California Department of Forestry and Fire

Protection (Cal Fire). Ramirez contends that respondent

California State Personnel Board (Board) abused its discretion by

approving his dismissal. We affirm.

BACKGROUND

Ramirez commenced his employment with Cal Fire in 1994.

In 2010, Ramirez was appointed to the position of Battalion Chief

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at Cal Fire’s training academy in Ione, California (the Academy).

In July 2012, Ramirez became the Assistant Chief at the

Academy. One of the programs that Ramirez oversaw in both

positions was Cal Fire’s Fire Fighting Academy (FFA).

Cal Fire dismissed Ramirez from his position as Assistant

Chief effective January 23, 2015. In its notice of adverse action,

Cal Fire alleged that Ramirez violated Government Code1 section

19572, subdivisions (c) through (f), (m), (o), (p), (r), and (t)2 by:

(1) consuming alcohol and allowing FFA cadets to consume

alcohol while on duty at a graduation dinner; (2) failing to

properly respond to violations of Cal Fire’s Equal Employment

Opportunity (EEO) policy, including an incident where supervisor

Moe Fleming slapped Cadet Samano on the buttocks while she

was stretching during physical training, an incident where

Fleming made inappropriate sexual statements to another female

employee, and incidents were Cal Fire male employees displayed

1 All further statutory references are to the Government

Code unless otherwise stated.

2 This statute provides, in relevant part: “Each of the

following constitutes cause for discipline of an employee, or of a

person whose name appears on any employment list:

[¶] . . . [¶] (c) Inefficiency. [¶] (d) Inexcusable neglect of duty. [¶]

(e) Insubordination. [¶] (f) Dishonesty. [¶] . . . [¶]

(m) Discourteous treatment of the public or other employees.

[¶] . . . [¶] (o) Willful disobedience. [¶] (p) Misuse of state

property. [¶] . . . [¶] (r) Violation of the prohibitions set forth in

accordance with Section 19990 [incompatible

activities]. [¶] . . . [¶] (t) Other failure of good behavior either

during or outside of duty hours, which is of such a nature that it

causes discredit to the appointing authority or the person’s

employment.” (§ 19572, subds. (c)–(f), (m), (o), (p), (r), & (t).)

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inappropriate images of women; (3) failing to recognize and

respond appropriately to the incident with Cadet Samano as a

workplace violence incident; (4) misusing state time and

property, including by driving a state vehicle for personal use

while assigned to the Eiler Fire in 2014; (5) disobeying orders in

December 2014 from Staff Chief Tyler related to Ramirez’s

placement on administrative time off (ATO); and (6) being

dishonest during an administrative interview by the California

Highway Patrol (CHP) regarding Ramirez’s employment

misconduct in September 2014, and to Chief Tyler in December

2014. Ramirez appealed his dismissal to the Board.

The First Board Decision

After a lengthy administrative hearing, the Board adopted

the proposed decision of the administrative law judge (ALJ). The

Board determined that Cal Fire failed to prove that Ramirez

consumed alcohol while on duty or that he misused state time.3

However, the Board concluded that Cal Fire proved all remaining

allegations and approved dismissal as the just and proper

penalty.

Ramirez filed a petition for a writ of administrative

mandamus (Code Civ. Proc., § 1094.5). The trial court granted

the writ in part and remanded the matter to the Board. The trial

court determined that the allegations related to the incident

where Fleming made inappropriate sexual comments to a female

employee fell outside of the applicable statute of limitations, as

3 The Board dismissed the charges of inefficiency and

discourteous treatment.

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did any claims that Ramirez made false statements to CHP

regarding this incident. The court also found that the ALJ had

inappropriately limited Ramirez’s cross-examination of Cadet

Samano.

The Second Board Decision

On remand, the Board set aside its prior decision and held

a hearing allowing further cross-examination of Cadet Samano.

After the hearing, the Board adopted the ALJ’s revised decision.

The Board found that Ramirez had not testified credibly and

sustained many of the allegations against Ramirez.

The Board found that Ramirez committed inexcusable

neglect of duty (§ 19572, subd. (d)) on numerous occasions as

follows: Ramirez allowed cadets to drink alcohol while on duty at

an April 2012 graduation dinner, intentionally violating Cal

Fire’s policy prohibiting the consumption of alcohol while on duty.

Ramirez failed to adhere to Cal Fire’s policies preventing

discrimination and sexual harassment. Supervisors are

responsible for preventing discrimination and harassment,

setting the tone for a workplace free of discrimination and

harassment, and taking appropriate measures whenever they

should reasonably know that discrimination or harassment may

be occurring. Further, any Cal Fire employee who witnesses an

incident of discrimination or harassment is responsible for

reporting the conduct to an appropriate supervisor. Ramirez was

grossly negligent in witnessing and failing to report to any

supervisor Fleming’s slap of Cadet Samano’s buttocks in April

2012, and in failing to prevent male employees from displaying

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inappropriate images of women on Academy grounds. The Board

found that sharing such images was a common practice under

Ramirez’s supervision, and his attitude regarding Cal Fire’s

sexual harassment policy was so lax that one subordinate

employee felt free to text a link to a swingers’ club website to

Ramirez’s department-issued cell phone.

Ramirez acted with gross negligence in failing to take

action to address the 2012 incident between Fleming and Cadet

Samano as a potential matter of workplace violence. Cal Fire

had a zero-tolerance policy for workplace violence, Fleming

struck Cadet Samano with force, and his slap was unwelcome

physical contact.

Ramirez also committed inexcusable neglect of duty

through his intentional use of a state vehicle for personal

business without permission in violation of Cal Fire policy. In

2014, Ramirez was assigned to the Eiler Fire and worked 24-hour

“on” shifts followed by 24-hour “off” shifts or rest periods.

Without requesting permission to travel to West Sacramento,

Ramirez drove there on a 24-hour rest shift to attend a concert

with his wife, a 300-mile roundtrip. The same conduct violated

section 19572, subdivision (p) (misuse of state property).

Next, Ramirez committed insubordination and willful

disobedience. (§ 19572, subds. (e), (o).) In December 2014,

Ramirez was placed on ATO and contacted Chief Tyler for

permission to return his assigned state vehicle to the Academy

and to collect personal items from his office. Chief Tyler granted

the request and instructed Ramirez to check in with him at the

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Academy at 10:00 a.m. on December 30, 2014. Ramirez came to

the Academy with other officers who received ATO letters on

December 30, 2014, sometime before 6:00 a.m., and he did not

check in with Chief Tyler. When Chief Tyler found Ramirez on

Academy grounds, Ramirez denied that Chief Tyler had

instructed Ramirez to check in at 10:00 a.m.

The Board found that Ramirez violated section 19990 by

engaging in activity incompatible with his duties and through

failure of good behavior that discredited Cal Fire. (§ 19572,

subds. (r), (t).) As to the former, Ramirez violated Cal Fire’s

incompatible activities policy by driving to West Sacramento

during the Eiler Fire, which rendered him unable to promptly

respond to a call to duty had one been made. As to the latter,

Ramirez discredited Cal Fire and his employment by failing to

enforce its no-drinking policy and by failing to foster a working

environment free from sexual harassment. Ramirez was in a

leadership position and was expected to set an example. The

example he set was that the no-drinking policy does not apply to

celebrations, and sexual harassment is not important. “But,

employees who drink on duty can become unable to safely

perform their duties and subject [Cal Fire] to liability. And

sexual harassment limits the ability of qualified female

employees to perform their duties, as well as subjects [Cal Fire]

to liability.”

Finally, the Board determined that Ramirez was

intentionally dishonest during the CHP investigation and later to

a superior officer. In the CHP interview, Ramirez “falsely denied

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being present when Captain Fleming slapped Cadet Samano on

the buttocks; but [he] was present.” He “inaccurately described

Captain Fleming’s action as tapping Cadet Samano; but [he] was

aware that Captain Fleming slapped Cadet Samano.” He “falsely

denied ever seeing inappropriate images of women displayed on

Academy grounds; but he had viewed images of women clad in

underwear or partially undressed.” Ramirez misleadingly

described the inappropriate images as family photos and the link

of the swingers’ website sent to him as spam. Ramirez also lied

when he falsely asserted to Chief Tyler that Chief Tyler had not

instructed him to check in at the Academy at 10:00 a.m. on

December 30, 2014. The Board found that, “[a]s a whole, when

questioned about his actions, [Ramirez] did not respond with

trustworthiness and integrity, but with the intent to obscure

damaging facts and minimize his potential exposure to

discipline.”

The Board considered the factors from Skelly v. State

Personnel Bd. (1975) 15 Cal.3d 194, 217–218 (Skelly)—the extent

to which the employee’s conduct resulted in, or if repeated, is

likely to result in, harm to the public service; the likelihood of

reoccurrence; and the circumstances surrounding the

misconduct—when making its penalty decision.

Addressing harm to the public service, the Board found

that Ramirez’s neglect of duty discredited himself and Cal Fire,

causing harm to the public service. Despite being responsible for

setting an example, Ramirez failed to follow procedures and

demonstrated a lax attitude about the environment at the

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Academy. The Board reasoned that the Academy is significant to

the public service because it trains cadets in firefighting, and the

public interest is served when cadets can train without being

subjected to inappropriate sexual conduct that may be

distracting, embarrassing, or stressful, whether or not it amounts

to unlawful sexual harassment. Ramirez was so inattentive to

his responsibility that he skipped through online training

without reading the material, his subordinates were emboldened

to share suggestive photographs of women, and one slapped

Cadet Samano in Ramirez’s presence. The Board found that Cal

Fire cannot enforce its policies if its supervisory employees do not

take them seriously. Further, if continued, Ramirez’s conduct

could harm the public service by damaging cadets’ ability to

successfully train at the Academy, and by setting a poor example

for cadets to carry back to their home units and forward in their

careers.

Ramirez’s failure to prohibit alcohol consumption at the

graduation dinner fostered behavior that he knew was

prohibited, undermined Cal Fire’s efforts to eliminate that

behavior, and harmed the public service. His misuse of state

property also harmed the public service because the public is

entitled to have state resources used for purposes that promote

the public service. Finally, his insubordination and dishonesty

were discrediting, and dishonesty erodes public trust and

damaged Cal Fire’s ability to trust in Ramirez to act

independently in properly executing his duties.

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The Board next determined that Ramirez’s failure to accept

responsibility for his actions and dishonesty about his misconduct

suggested a significant likelihood of reoccurrence.

In mitigation, the Board acknowledged that Ramirez

contended his actions involved reactions to others’ misconduct

and not his own misconduct, but it determined that Ramirez was

ignoring his misuse of state property, engagement in an

incompatible activity, dishonesty, insubordination, and failure to

attend to his own job responsibilities. The Board recognized the

favorable fact that Ramirez had not sustained a previous adverse

action in the 3 years he worked as a seasonal employee or the 17

years he worked as a permanent employee. It considered

progressive discipline and a lesser penalty, such as a demotion,

that would remove Ramirez from a supervisory role. However,

the Board ultimately concluded that progressive discipline was

not warranted because Ramirez’s conduct was intentional, his

deliberate decision making evidenced poor judgment, and he was

dishonest. “Consideration of all relevant factors establishes that

penalty modification is unwarranted. Dismissal is harsh, but it

is a just and proper penalty.”

The Second Writ Petition

Ramirez challenged the Board’s revised decision by filing

another petition for a writ of administrative mandamus, and the

trial judge who decided the first writ heard the matter. The trial

court denied the writ, begrudgingly concluding that the Board’s

findings were sufficient to support its decision to terminate

Ramirez. The court stated that the dishonesty and

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insubordination findings themselves sufficed to uphold dismissal.

The court noted that if it had been the trier of fact, it would have

made different factual determinations, and it would not have

selected dismissal as the appropriate penalty. However, given

the standard of review, the court found that a reasonable person

could have found that termination was proper, and reversal of

the Board’s decision would constitute an impermissible

substitution of the court’s discretion for that of the Board as to

the degree of punishment imposed.

DISCUSSION

I. Governing Law and the Standard of Review

The Board enforces civil service statutes and reviews

disciplinary actions. (California Youth Authority v. State

Personnel Bd. (2002) 104 Cal.App.4th 575, 584.) “ ‘The Board

acts as an adjudicatory body, weighing the evidence to determine

the facts and exercising discretion to ascertain whether the

charges sustained are sufficient for the discipline imposed.

[Citation.] Because the Board is an agency of constitutional

authority, its findings of fact are reviewable in an administrative

mandamus proceeding under the substantial evidence test.

[Citation.] “The record must be viewed in a light most favorable

to the decision of the Board and its factual findings must be

upheld if they are supported by substantial evidence.” ’ ” (Pollak

v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1403–1404

(Pollak).)

“ ‘[In] a mandamus proceeding to review an administrative

order, the determination of the penalty by the administrative

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body will not be disturbed unless there has been an abuse of its

discretion.’ ” (Skelly, supra, 15 Cal.3d at p. 217.) “In considering

whether such abuse occurred in the context of public employee

discipline, . . . the overriding consideration . . . is the extent to

which the employee’s conduct resulted in, or if repeated is likely

to result in, ‘[harm] to the public service.’ [Citations.] Other

relevant factors include the circumstances surrounding the

misconduct and the likelihood of its recurrence.” (Id. at p. 218.)

“ ‘ “ ‘Neither an appellate court nor a trial court is free to

substitute its discretion for that of the administrative agency

concerning the degree of punishment imposed.’ ” ’ ” (County of

Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606,

1615.) “If reasonable minds may differ as to the propriety of the

penalty imposed, there has been no abuse of discretion.

[Citation.] It is only in the exceptional case, when it is shown

that reasonable minds cannot differ on the propriety of the

penalty, that an abuse of discretion is shown.” (Deegan v. City of

Mountain View (1999) 72 Cal.App.4th 37, 46–47.)

“ ‘[I]n a mandamus proceeding, an appellate court vis-a-

vis the trial court, conducts a de novo review concerning possible

abuse of discretion by the administrative agency. [Citation.] The

trial court’s determination of abuse or nonabuse of discretion by

the administrative agency is of no concern to the appellate court.

The appellate court gives no deference to the trial court's

determination.’ ” (Pollak, supra, 88 Cal.App.4th at p. 1404.) “

‘Conversely, . . . in a mandamus proceeding an appellate court

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vis-a-vis the administrative agency, does not independently or ‘de

novo’ determine penalty.’ ” (Ibid.)

II. Analysis

Here, the Board’s misconduct findings are not in dispute.

Rather, Ramirez claims that no reasonable person could find that

his dismissal was proper, so the Board abused its discretion in

selecting his penalty. We do not agree.

The finding of dishonesty itself supports the termination.

“Dishonesty is incompatible with the public trust.” (Talmo v.

Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) “By its

enactment of section 19572, subdivision (f), the Legislature

indicated a strong public policy against having dishonest

employees in the state service.” (Gee v. California State

Personnel Board (1970) 5 Cal.App.3d 713, 719 (Gee).)

Here, the CHP conducted an administrative investigation

into incidents of Ramirez’s alleged employment misconduct,

Ramirez lied about facts related to those incidents, and he did so

with “intent to obscure damaging facts and minimize his

potential exposure to discipline.” Ramirez claims that there was

no harm or likely harm to the public service from his dishonesty,

but he hindered resolution of matters under investigation. (Cf.

Kolender v. San Diego County Civil Service Com. (2005)

132 Cal.App.4th 716, 722 [stating charges against fellow officer

would have been easier and more quickly proven if plaintiff had

simply responded honestly to investigators when first

questioned].) And the Board determined that Ramirez’s

dishonesty harmed the public service by discrediting himself,

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damaging Cal Fire’s ability to trust him, and eroding the public

trust in Cal Fire and its employees as agents for the public good.

Ramirez also argues that his dishonesty was not important

and went to immaterial matters. However, Cal Fire has a zero

tolerance policy for workplace violence, sexual harassment, and

unprofessional conduct. Ramirez was under investigation for

employment misconduct, including his improper handling of an

incident of sexual harassment and workplace violence and his

toleration of displays of photos of women in underwear or

partially nude on Academy grounds. Ramirez lied about facts

that went to the severity of the incident with Cadet Samano—

namely witnessing a slap to her buttocks that she described as a

5 of 10 in terms of force and that made her embarrassed and

uncomfortable. He lied about seeing inappropriate images

displayed by male employees. And he did so after CHP

admonished him that he had a duty to respond truthfully and

that failure to do so could result in dismissal.4 Ramirez also lied

to his supervisor about a fact central to the disobedience charges.

The Board could reasonably conclude that Ramirez’s repeated

dishonesty was sufficiently serious to warrant dismissal. (See

Cvrcek v. State Personnel Board (1967) 247 Cal.App.2d 827, 828–

829 [auditor’s impermissible taking of documents that were not

“particularly remarkable or sensitive” from office file was

“relatively unimportant,” but his dishonesty about that conduct

4 The CHP investigator also listed on the record the

matters that were under investigation at the beginning of the

interview.

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supported dismissal]; Gee, supra, 5 Cal.App.3d at pp. 716, 718–

719 [auditor’s false statements on transfer application for alcohol

license made prior to his state employment constituted

dishonesty and supported penalty of dismissal].)

Next, the Board found a likelihood of reoccurrence.

Ramirez argues that the isolated nature of certain incidents of

his misconduct shows that his behavior is unlikely to reoccur, but

his argument does not address his dishonesty. The Board

observed that dishonesty is a continuing character trait, and it

found that Ramirez made false statements in the CHP

investigation, he made a false statement to his superior, and he

failed to testify reliably at the ALJ hearing. These findings

substantiate the Board’s reasonable conclusion regarding the

likelihood of reoccurrence. (Paulino v. Civil Service Com. (1985)

175 Cal.App.3d 962, 972 [“Dishonesty is not an isolated act; it is

more a continuing trait of character.”]; Gee, supra, 5 Cal.App.3d

at pp. 718–719 [same].)

As for the circumstances surrounding the misconduct,

Ramirez argues that numerous facts mitigated the findings

regarding inexcusable neglect of duty, insubordination, willful

disobedience, and misuse of his state vehicle, and he claims that

termination was too severe a penalty because his misconduct

related only to his performance as a supervisor. In doing so,

however, Ramirez does not provide any facts that mitigate what

the Board determined to be his intentional decision to lie to the

CHP and Chief Tyler.

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Finally, we reject Ramirez’s claim that, because he has

been an employee for many years, progressive discipline was the

only reasonable option. The question of whether progressive

discipline was appropriate rests within the Board’s discretion.

(Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 76; Talmo,

supra, 231 Cal.App.3d at p. 230.) The Board embraces

progressive discipline to treat “problems of poor work

performance,” (In re R.N. (1992) SPB Precedential Dec. No. 92-

07, p. 6, fn. 3), but, as Ramirez recognizes, progressive discipline

is not required in cases of serious willful misconduct (ibid.). The

Board acknowledged Ramirez’s service as a mitigating factor;

however, it found that his misconduct was not a performance

issue and was instead the product of deliberate decision making

that evidenced poor judgment. In addition, the Board reasoned

that Ramirez’s dishonesty and lack of remorse weighed in favor of

the harshest penalty, as Cal Fire should not be required to retain

an untrustworthy employee. The Board in this case could

reasonably conclude there was harm to the public service, and

Ramirez had exhibited repeated dishonesty and poor judgment

such that his decision making could no longer be relied upon,

which meant that terminating his employment was proper.

While reasonable minds could differ on the penalty, the

Board affirmed Ramirez’s dismissal. “It is only in the exceptional

case, when it is shown that reasonable minds cannot differ on the

propriety of the penalty, that an abuse of discretion is shown.”

(Deegan v. City of Mountain View, supra, 72 Cal.App.4th at

p. 47.) This is not such an exceptional case.

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DISPOSITION

The order is affirmed. Respondents are awarded their costs

on appeal.

BROWN, P. J.

WE CONCUR:

STREETER, J.

HIRAMOTO, J.

Ramirez v. California State Personnel Board (A165897)



Judge of the Superior Court of California, County of

Contra Costa, assigned by the Chief Justice pursuant to article

VI, section 6 of the California Constitution.

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