Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVDS918125 W. Robert Fawke, Judge.
Amezcua-Moll & Associates and Rosemary Amezcua-Moll for Plaintiff and Appellant.
Best Best & Krieger, Howard Golds and Elizabeth A. James for Defendants and Respondents.
OPINION
Codrington, J.
I
INTRODUCTION
The City of Rialto (City) terminated plaintiff Carolyn Palmer’s (Palmer) employment as an office specialist in the City Code Enforcement Division. Palmer filed a writ of mandate (Code Civ. Proc., § 1094.5 ), seeking reinstatement to her position as office specialist. The trial court denied her writ petition. Palmer appeals, arguing that the City abused its discretion in terminating her employment, even assuming she committed misconduct. We disagree and affirm the judgment.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
II
FACTS AND PROCEDURAL BACKGROUND
The City employed Palmer in January 1998, under a civil service appointment, as an office specialist in the Code Enforcement Division of the City Development Services Department. Palmer’s job responsibilities included staffing the front counter, answering the phones, filing, responding to customers who came to the counter, and receiving and documenting public complaints of code violations. Palmer worked for the City as an office specialist for 10 years, until the City terminated her employment, effective May 27, 2008.
Up until 2007, Palmer’s employment with the City was generally acceptable, although she had problems getting to work on time and, occasionally, had other work-related problems. Palmer’s work performance evaluation for 2000 stated she had a problem with tardiness and not getting her work done because of spending an inordinate amount of time on personal telephone calls. Her evaluation for 2001, likewise stated she had a problem arriving at work on time and responded “reluctantly to the intent of directions, instructions and/or corrections.” Her evaluations for 2003 did not report any such problems, but she continued, on occasion, to arrive late to work in 2003, 2004, 2005, and 2006. Palmer’s annual evaluation for 2005 once again stated Palmer had difficulty arriving for work on time. She was late on a regular basis and requested time off without sufficient notice.
In early 2007, Palmer’s extensive history of performance problems intensified. Palmer received numerous reprimands and discipline for tardiness, absenteeism, with sick time abuse, and with some evasiveness and dishonesty occurring in the course of investigating the misconduct.
In March 2007, Adrian Bradley (Bradley) became Palmer’s new supervisor. In April 2007, Bradley placed Palmer on a performance improvement plan because of Palmer’s attendance and tardiness problems. Bradley noted in her letter to Palmer, advising Palmer of her performance improvement plan, that whenever Palmer took time off without prior approval, Bradley had to spend valuable time searching for a replacement. Also, Palmer’s excessive time off placed a heavy workload on her fellow workers, negatively impacted morale, and forced the Development Services Department to use other staff members to cover the office duties.
Palmer’s employee performance evaluation for the period of June to December 2007 stated that Palmer continued to have difficulty arriving on time and Palmer’s tardiness required other staff to cover the front counter. During this six-month period, Palmer received three written reprimands and four disciplinary memorandums, resulting in a reduction in pay for excessive tardiness. The performance evaluation also stated that Palmer tended to disregard safety procedures, resulting in a notice of intent to discipline for her reckless driving when arriving at the senior center for a mandatory staff meeting in November 2007. Palmer required repetitive direction and instructions to complete tasks, and was argumentative with Bradley when she was given directions, instructions and corrections. In addition she resisted change, was inflexible, and needed coaching on simple tasks such as phone etiquette. Her quality of work was also not good, suffering from a lack of accuracy. She gave out incorrect and unnecessary information to the public and demonstrated a lack of the required skills, including her writing skills. The performance evaluation included many other criticisms of Palmer’s work, including Palmer not interacting well with Bradley and other workers. Palmer signed the performance evaluation “under protest.”
Between August 2007 and January 2008, Palmer was reprimanded, suspended, and given pay reductions for attendance problems at least eight times. In September 2007, Palmer received an 80-hour suspension for attendance problems. In October 2007, Palmer received a one-day suspension, resulting in a pay reduction, for excessive tardiness. Palmer received a three-day suspension in November 2007, reducing her pay again for excessive tardiness after being tardy nine times in October and November.
As a consequence of Palmer’s continued work performance problems, in December 2007, Bradley gave Palmer a memorandum advising her that she had failed to meet the objectives of her performance improvement plan and therefore her plan was extended to March 30, 2008. The stated objectives of the plan were for Palmer not to take off any time without prior approval; report to work on time; call in if Palmer anticipated being late due to car trouble and provide a receipt from a tow company or mechanic showing the date and time of service; take directions from Bradley without confrontation; answer calls in a timely manner and refrain from discussing Palmer’s own personal problems; make no errors in inputting information; and refrain from using the work phone and computer (presumably for personal matters), unless there was an emergency.
The December 18, 2007, memorandum erroneously states the performance improvement plan was extended from December 30, 2007, to March 30, 2007, instead of to March 30, 2008.
Between January 2008 and April 2008, Palmer was given eight additional written reprimands and suspended for failing to follow directions. In January 2008, Palmer received a four-day suspension, resulting in a pay reduction, for continued attendance problems, reckless driving, and failing to follow Palmer’s performance improvement plan. Also in January 2008, Palmer received a 10-day suspension, resulting in a pay reduction for tardiness and attendance issues. On March 13, 2008, Palmer was suspended one day for failing to follow directions. She received three additional written reprimands on March 20, 2008, March 27, 2008, and April 14, 2008, for failing to follow directions.
The two final incidents culminating in Palmer’s termination occurred on April 15, 2008. The first incident occurred when Bradley overheard Palmer handling a citizen complaint call and asked Palmer to transfer the call to Bradley. After transferring the call, Palmer submitted a complaint form with a written record of the complaint. This was contrary to established procedures. Bradley had previously instructed Palmer by memorandum not to record complaints if the call was transferred to Bradley for handling. When Bradley asked Palmer if she remembered the instruction memorandum Bradley had given her, Palmer asked to see it. Apparently, Palmer had not kept the memorandum, as instructed by Bradley.
The second incident on April 15, 2008, occurred when Palmer received a call from a citizen complaining of graffiti on a next-door neighbor’s house. Palmer failed to obtain the address of the house with the graffiti. The day before, Palmer had been instructed to always obtain the correct address for all complaints and had been reprimanded for failing to get a correct address for another complaint.
On May 7, 2008, Bradley issued Palmer a notice of intent to terminate her employment based on the two April 15, 2008, violations, in conjunction with her extensive history of performance problems and discipline.
On May 27, 2008, Palmer and her union representative attended a Skelly hearing, conducted by the City Director of Development Services, Michael E. Story (Story). During the hearing, in which Palmer contested termination, she attributed her work-related problems to her supervisor, Bradley, and requested Bradley be reassigned to a different position. Story concluded that this would not resolve Palmer’s work performance issues and Palmer had not provided any information convincing him not to proceed with Palmer’s termination.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
The following day, Story issued a notice of termination of Palmer’s employment, effective May 27, 2008. The notice contained a detailed discussion of Palmer’s misconduct and concluded: “It has come to the point where we can no longer tolerate an employee that we have to constantly monitor to ensure that the office is run smoothly and efficiently. Discipline has not modified your behavior. Your unwillingness to perform your designated job responsibilities not only interrupts the Code Enforcement Division, but it also puts a strain on the Development Services Department as a whole.... This display of neglect is affecting the atmosphere in the office and can no longer be tolerated.”
Palmer opted to challenge her termination by proceeding with advisory arbitration. During the arbitration hearing, conducted by arbitrator Michael Prihar (Prihar), Palmer testified and the parties submitted evidence, including performance evaluations, various letters relating to Palmer’s employment, applicable personnel rules, the Memorandum of Understanding (MOU), the notice of intent to terminate, and notice of termination. The parties presented closing arguments by submitting post-arbitration briefs. Palmer asserted that the issue was whether the City could terminate her for a minor act or omission when she did not deliberately or consciously violate the City’s procedures.
In the written arbitration opinion and award, Prihar sustained the two charges of misconduct on April 15, 2008, and found Palmer failed to meet reasonable work performance standards, in violation of the City’s personnel rules and regulations. Prihar noted that Palmer claimed she had received conflicting instructions from Bradley. Prihar concluded that, even if this was the case, it was Palmer’s responsibility to bring that to her supervisor’s attention and seek clarification, rather than claiming there was a conflict after the fact. The City established that Palmer knew or should have known that the two acts of misconduct on April 15, 2008, constituted unacceptable conduct. However, Prihar found the City did not demonstrate that Palmer knew or should have known she could be terminated for such acts.
Prihar concluded that Palmer should be disciplined for the two acts of misconduct on April 15, 2008, and acknowledged she had demonstrated an “evident inability to follow directions” and had a history of discipline. Prihar recommended that, consistent with the concept of progressive discipline, such discipline should be more severe than a written reprimand or equivalent pay reduction previously imposed, but not as drastic as termination.
Because Prihar’s arbitration opinion was advisory, the City was not bound by it. The City administrator, Henry Garcia (Garcia), had the option of adopting, amending, modifying or rejecting the opinion under the City MOU. Garcia’s decision was final and conclusive as to Palmer’s employment status.
After reviewing the arbitration record and Prihar’s advisory arbitration opinion, by letter dated October 8, 2009, Garcia sent Palmer a detailed statement of decision, concurring with the arbitrator’s finding that Palmer’s acts on April 15, 2008, violated the City’s personnel rules and regulations. Garcia, however, rejected Prihar’s recommendation to impose a penalty less severe than termination. Rather, based on the April 15, 2008, violations and Palmer’s history of discipline, Garcia upheld Story’s decision to terminate Palmer. Garcia concluded that Palmer had received extensive counseling on improving her work performance and was warned multiple times that future acts of continued misconduct could lead to termination. In addition, she had received frequent reprimands and discipline of increasing severity, such that termination was consistent with the concept of progressive discipline. Garcia further concluded that based on Palmer’s history of misconduct and discipline, she was likely to continue to fail to follow directions and meet reasonable work performance standards, causing harm to the public service.
Palmer filed a petition for writ of mandate in the superior court, which the trial court denied. The court found that Palmer’s termination was not an abuse of discretion, because reasonable minds could differ as to whether termination, based on the two April 15, 2008, incidents, was an appropriate penalty, when considered in conjunction with Palmer’s history of tardiness, absenteeism, and failure to follow directions.
III
IMPOSING PENALTY OF TERMINATION
Both the City Director of Development Services, Story, and the City administrator, Garcia, concluded Palmer’s acts on April 15, 2008, in conjunction with her history of discipline for misconduct, constituted grounds for termination. The trial court also found imposing termination was reasonable. Palmer, however, contends her termination was an excessive penalty, constituting an abuse of discretion since reasonable minds would not differ in concluding her termination was inappropriate. We disagree.
A. Applicable Law
On appeal from the trial court’s ruling denying Palmer’s petition for writ of administrative mandate challenging termination of her employment, we review the administrative decision, not the superior court’s decision, by the same standard as was appropriate in the superior court. (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500-501 [Fourth Dist., Div. Two] (Schmitt); Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 470 (Kolender).) “Thus, as to the discipline imposed the standard of review on appeal remains the same as it was in the superior court: the administrative agency’s exercise of discretion as to the discipline to be imposed will not be disturbed unless a manifest abuse of discretion is shown [citation.]” (Schmitt, at p. 501.)
In Schmitt, supra, 164 Cal.App.3d 494, this court clarified that the substantial evidence standard of review on appeal applies when the issue is whether the plaintiff employee committed misconduct. But when the issue on appeal concerns the propriety of an administrative penalty or sanction, the abuse of discretion applies. (Id. at pp. 501, 502.)
The record, here, shows there is overwhelming evidence Palmer committed the two charged acts of misconduct on April 15, 2008, as well as numerous previous acts of misconduct in 2007 and 2008. The sole issue in this appeal is whether Palmer’s termination was an excessive penalty. The abuse of discretion standard of review thus applies, and neither the trial court nor this court may substitute its discretion for the City’s as to the degree of penalty imposed on Palmer. (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 970 (Paulino); Schmitt, supra, 164 Cal.App.3d at p. 500.) We may not interfere with the City’s imposition of penalty merely because, in our evaluation of the circumstances, the penalty of employment termination may appear too harsh. (Paulino, at p. 970.) “Discretion is abused where the penalty imposed exceeds the bounds of reason; the fact reasonable minds may differ as to the propriety of the penalty supports a finding the Commission acted within its discretion.” (Id. at pp. 970-971.)
In determining whether the penalty of termination was excessive as a matter of law, the overriding considerations are the extent of harm to the public service resulting from Palmer’s conduct or the likelihood such conduct, if repeated, would result in harm to the public service. (Schmitt, supra, 164 Cal.App.3d at p. 503; Paulino, supra, 175 Cal.App.3d at p. 971.) Other considerations include the circumstances surrounding Palmer’s misconduct, the potential legal liability of the City for Palmer’s acts or for her possible future acts, and the likelihood of recurrence of her misconduct. (Skelly, supra, 15 Cal.3d at p. 218; Paulino, at p. 971; Schmitt, at p. 503.) “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. [Citations.]” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 47.) The instant case is not such an exceptional case.
B. Discussion
Citing Kolender, supra, 149 Cal.App.4th 464, the City argues Palmer’s persistent work performance problems caused harm to the public service and were likely to recur and result in future harm. In Kolender, the county sheriff, William Kolender, demoted employee, Margaret Gant, from a supervisorial position to a detention processing technician. Gant appealed to the county civil service commission, which reduced the penalty to a temporary demotion. The sheriff filed a petition for writ of administrative mandate under section 1094.5, requesting the trial court to vacate the commission’s order. (Kolender, at p. 466.) The trial court granted the petition, finding that the commission abused its discretion in reducing Gant’s penalty in light of Gant admitting that twice she erred in calculating defendants’ sentences, and also based on her history of being disciplined for ignoring department directives. (Ibid.) Gant appealed the trial court ruling. The Kolender court affirmed the trial court ruling, upholding Gant’s termination. (Id. at p. 467.)
The court in Kolender, concluded that, because of “the possibility of harm to the public service from the employee’s conduct, in light of all the circumstances surrounding the misconduct and the likelihood of recurrence, ” the commission abused its discretion in reducing the employee penalty from termination to a temporary demotion. (Kolender, supra, 149 Cal.App.4th at pp. 473, 474.)
Palmer argues that Kolender is distinguishable from the instant case because the employee in Kolender was disciplined for acts posing a risk of harm to the public service. In the instant case, Palmer asserts that 90 percent of her performance issues related to her tardiness, which was no longer a problem. Furthermore, her past tardiness did not pose any risk of harm to public service. As to the remaining 10 percent of her performance issues, Palmer claims those dealt with minor procedural issues, which she claims arose from justifiable acts on her part. Palmer argues that, although she was apprised in written employee performance evaluations of several of these matters, she signed her performance evaluation forms under protest, and thus did not agree with the criticisms. She also claims that her new supervisor, Bradley, inundated her with instruction memos and was unreasonably hypercritical of her job performance.
Regardless of Bradley’s management style, Palmer’s extensive history of work-related problems and discipline, particularly in 2007 and 2008, support a reasonable finding that her misconduct would likely recur and result in harm to the public service. Palmer’s problems at work included her failure to follow directions and meet reasonable work performance standards and requirements, despite a history of extensive discipline and guidance in attempting to cure her job performance deficiencies. An employee’s history of misconduct, when considered in conjunction with an additional act of employee misconduct, may justify termination. (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 770, fn. 13.)
As Garcia stated in the notice of termination of Palmer, the arbitrator, Prihar, and Garcia were in agreement as to the key facts upon which Palmer’s termination was based: Palmer had violated personnel rules and regulations on April 15, 2008; Palmer had an extensively documented past history of misconduct and discipline; Palmer had an “evident inability to follow directions”; and Palmer “deserved to be disciplined more severely than [she] had been in the past.” Garcia noted that “[t]he arbitrator’s primary point of disagreement was that he believed the appropriate level of discipline in this case was something short of termination.”
Garcia noted that the arbitrator concluded termination was too harsh a penalty, in part, because the arbitrator erroneously found that the City had not imposed progressive discipline. The arbitrator incorrectly assumed Palmer’s discipline on January 22, 2008, consisting of a pay reduction, was no more severe than her disciplinary pay reduction in November 2007. But in November, Palmer received a pay reduction equivalent to a three-day suspension, and the following January she received a more severe pay reduction equivalent to a four-day suspension. In addition, on January 23, 2008, Palmer received a pay reduction equivalent to a 10-day suspension.
Palmer also received numerous written reprimand notices during the months of January through April 2008, along with a one-day suspension imposed in March 2008 and on April 15, 2008, for failing to follow directions and established procedures. A second incident on April 15, 2008, in which Palmer again failed to follow instructions and established procedures led to Palmer’s termination. There was substantial evidence demonstrating that, contrary to the arbitrator’s finding, the City imposed sufficiently progressive and repeated discipline for Palmer’s misconduct, ultimately culminating in her termination.
Palmer further argues that, even assuming Palmer committed the documented misconduct, such misconduct did not result in, or was likely to result in, harm to the public service. We disagree. There was substantial evidence her performance problems caused harm to the public service and, if such conduct continued, would likely cause additional harm. Instances demonstrating such harm include Palmer’s failure “to input citizen complaints into the system, the type of omission which can have a direct impact on individuals in the community”; Palmer incorrectly telling a citizen, who reported a suspected violation of neighborhood park rules, that the complaint was not a code issue, rather than referring the call to Palmer’s supervisor, Bradley; and Palmer’s failure to input citizen complaints the first time citizens reported complaints, thus impeding and delaying the response process. Palmer did not always follow directions and, according to her supervisor, Bradley, supervising Palmer had become a “full-time job.”
As Garcia explained in the statement of decision terminating Palmer’s employment: “[Palmer’s] failure to meet reasonable work performance standards has placed a strain upon the Code Enforcement Division and the Development Services Department as a whole. Further, [Palmer’s] poor performance has included behaviors such as failing to input citizen complaints into the system, the type of omission which can have a direct impact on individuals in the community.” Both the arbitrator and Garcia, as well as Story, concluded Palmer deserved to be disciplined for her misconduct committed on April 15, 2008. Although, the arbitrator concluded termination was too severe a penalty, we cannot say terminating Palmer’s employment was an abuse of discretion. And absent a manifest abuse of discretion, this court will not disturb the City’s exercise of discretion in terminating Palmer. (Skelly, supra, 15 Cal.3d at p. 217.)
There is more than ample evidence that Palmer’s conduct “resulted in, or if repeated is likely to result in, ‘[harm] to the public service’” (Skelly, supra, 15 Cal.3d at p. 218), and is likely to recur. The evidence adduced at the arbitration hearing, the arbitrator’s findings, and the City administrator’s findings, establish that the punitive dismissal was reasonable since Palmer had a history of transgressions, that continued after repeated warnings and admonitions by both her previous and current supervisors, who, throughout her 10 years of employment, made reasonable efforts to warn, assist, and counsel Palmer in complying with work standards and expectations. Discipline was imposed with progressive severity up to the time of Palmer’s termination. Although the arbitrator concluded termination was too harsh a penalty, he did so based on the fallacious assumption Palmer had not received progressive discipline, and Story, Garcia, and the trial court all concluded Palmer’s conduct justified termination. This is not one of those exceptional cases, in which “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.)
As we concluded in Schmitt, supra, 164 Cal.App.3d at page 504, where reasonable minds can differ as to the propriety of imposing the penalty of termination, it is error for this court or the trial court to set the penalty aside. In Schmitt, this court reversed the trial court ruling granting the plaintiff employee’s petition for writ of mandate seeking reinstatement of his employment as a police officer. (Ibid.) The city terminated his employment after he was charged with child endangerment, even though the charges were dropped, and because he fired his gun, which was loaded with blanks, at a fellow officer, while giving a presentation on officers’ safety and maintenance of equipment. The trial court held that the city’s decision to terminate the officer constituted a manifest abuse of discretion and issued a peremptory writ of mandate commanding the city to reconsider the discipline to be imposed. (Schmitt, at p. 499.) This court, reversed, concluding that “Because reasonable minds could differ as to the propriety of termination as the discipline to be imposed, the city council may not be said to have manifestly abused its discretion in terminating plaintiff.” (Id. at p. 504.)
Palmer attempts to distinguish Schmitt, claiming that in the instant case reasonable minds could not possibly differ in concluding imposing termination was an abuse of discretion. Palmer claims she had few, if any, job performance problems before Bradley became her supervisor. Bradley unfairly repeatedly criticized Palmer and inappropriately micromanaged Palmer’s work. This, Palmer, argues resulted in a barrage of unjustified criticisms, confusing instructions, and unrealistic expectations, leading to Palmer’s termination for two relatively minor incidents on April 15, 2008.
While neither of the April 15, 2008, incidents, alone, constituted serious offenses, when considered in conjunction with all of Palmer’s other numerous acts of misconduct, there were sufficient grounds for the City’s termination of Palmer’s employment. The April 15, 2008, incidents demonstrated Palmer continued not to follow directions. As a consequence, she required close and continual supervision, which placed a strain on City resources that could be better spent elsewhere. Even though Bradley may have been more critical of Palmer’s job performance than Palmer’s previous supervisor, and there may have been a personality conflict, there is nothing showing that Bradley’s criticisms and reprimands of Palmer were fabricated or unjustified. Rather, Bradley may have simply been more attentive than Palmer’s previous supervisor to the manner in which Palmer performed her job and less tolerant of Palmer’s misconduct.
The two final incidents in April, of Palmer ignoring instructions, might be viewed as relatively innocuous. Nevertheless, Palmer’s lengthy history of misconduct and noncompliance with work standards could reasonably be viewed, as it was by the City and trial court, as demonstrating that Palmer would continue to violate work rules and standards, and this likely would result in future harm to the public service. (Schmitt, supra, 164 Cal.App.3d at pp. 501, 504.)
Since the City has established that reasonable minds could differ on the propriety of imposing the penalty of termination, this court must give deference to the City’s decision to terminate Palmer. There being no abuse of discretion in terminating Palmer’s employment, we affirm the trial court’s order denying Palmer’s petition for writ of mandamus to compel reinstatement of Palmer to her employment with the City as an office specialist.
IV
DISPOSITION
The judgment is affirmed. Defendants, the City and Garcia, are awarded their costs on appeal.
We concur: Richli, Acting P.J., King J.