Filed 5/13/14 L.A. County Dept. of Children and Family Services v. L.A. County Civil Service Commission CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR

LOS ANGELES COUNTY                                                   B249446
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,                                                     (Los Angeles County
                                                                     Super. Ct. No. BS137137)
         Plaintiff and Appellant,

         v.

LOS ANGELES COUNTY CIVIL
SERVICE COMMISSION,

         Defendant and Respondent;

SHANNON EBERLY,

         Real Party in Interest and
         Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles, Joanne B.
O’Donnell, Judge. Affirmed.
         Shelden and Rivera and Mario R. Rivera for Plaintiff and Appellant.
         No appearance for Defendant and Respondent Los Angeles County Civil
Service Commission.
      Law Offices of Victor Manrique and Victor M. Manrique for Real Party in
Interest and Respondent Shannon Eberly.
             _____________________________________


      After appellant County of Los Angeles, Department of Children and Family
Services (DCFS) dismissed respondent Shannon Eberly for entering false
information in appellant’s computer system, the Civil Service Commission of the
County of Los Angeles (Commission) set aside the dismissal and imposed a 20-
day suspension on Eberly. On appeal, DCFS challenges the superior court’s
denial of its petition for a writ of mandate commanding the Commission to
reinstate Eberly’s discharge. We reject DCFS’s contentions and affirm.


                RELEVANT FACTUAL AND PROCEDURAL
                                 BACKGROUND
      In 2004, DCFS hired Eberly as a trainee Children’s Social Worker (CSW).
In January 2005, she became a permanent CSW. Her duties included conducting
monthly face-to-face visits with the children assigned to her, assessing their
placement, and recording information in DCFS’s “CWS/CMS” computer system
(CWS/CMS system). Prior to Eberly’s discharge, her performance was evaluated
as “[c]ompetent” and “[v]ery [g]ood,” and she was never disciplined.
      In November 2009, Eberly’s supervisor became aware that Eberly’s records
in the CWS/CMS system misdescribed four visits with children. On April 2,
2010, DCFS issued Eberly a notice of its intent to discharge her. After a Skelly
hearing was conducted regarding Eberly’s discharge, she was assigned limited




                                          2
duties while the hearing officer’s recommendation was pending.1 In May 2010,
there was a report that Eberly made an improper entry in the CWS/CMS system.
DCFS amended the allegations against Eberly to include the incident, and a
second Skelly hearing was conducted regarding it.
      On June 25, 2010, DCFS discharged Eberly. The DCFS’s discharge letter
stated that in November 2009, Eberly falsified records of four visits with children.
According to the discharge letter, although Eberly’s computer entries claimed that
she had interviewed the children in their placements, she made no visit with one
child, and saw the other children outside their placements. DCFS maintained that
Eberly’s misconduct constituted violations of DCFS’s discipline guidelines and
the Los Angeles County Civil Service Rules.
      Eberly appealed her discharge before the Commission, which referred the
matter to a hearing officer. On June 8, 2011, following an evidentiary hearing, the
hearing officer submitted a report to the Commission containing proposed findings
of fact, conclusions of law, and a recommendation regarding the appropriate
discipline. The hearing officer identified the selection of the disciplinary measure
as the primary issue because Eberly “virtually” admitted the allegations against
her. Following an evaluation of Eberly’s misconduct, the hearing officer
concluded that it did not support the imposition of a discharge, and recommended
instead that Eberly be suspended for 20 days.
      The Commission initially proposed to accept the hearing officer’s
recommended decision. Later, after DCFS submitted objections, the Commission
proposed to reject the recommended decision and sustain Eberly’s discharge. On

1
       In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 203 (Skelly), the Supreme
Court held that except in minor disciplinary matters, public employees are entitled to
notice and an evidentiary hearing on disciplinary actions taken against them.



                                            3
January 18, 2012, following a hearing, the Commission adopted as its final
decision the hearing officer’s proposed findings of fact, conclusions of law, and
recommended disciplinary measure.
      DCFS sought administrative mandamus before the superior court (Code
Civ. Proc., § 1094.5). On March 20, 2103, the superior court denied DCFS’s
petition for writ of mandate, concluding that the hearing officer, in recommending
a 20-day suspension in lieu of a discharge, neither erred as a matter of law nor
engaged in an abuse of discretion. Judgment in favor of the Commission and
against DCFS was entered on April 18, 2013. This appeal followed.


                                   DISCUSSION
      DCFS challenges the superior court’s denial of administrative mandamus,
contending that Eberly’s misconduct required a discharge. DCFS raises several
challenges to the Commission’s determination that the appropriate discipline for
Eberly’s misconduct was a 20-day suspension, rather than a discharge. DCFS
argues that the determination reflects a misinterpretation of the applicable
disciplinary guidelines and civil service rules, that it is not supported by sufficient
evidence, and that it constituted an abuse of the Commission’s discretion. As
explained below, we disagree.


      A. Governing Principles
      The standards applicable to our review are determined by the fact that
DCFS -- not Eberly -- filed the underlying petition for writ of mandate. When a
public employee seeks administrative mandamus regarding a dismissal or
suspension, the superior court “exercises its independent judgment upon the
evidence” before the Commission, as dismissals and suspensions affect the


                                           4
employee’s “fundamental vested right” in employment. (Melkonians v. Los
Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1167-1168.) In
contrast, when a public employer such as DCFS seeks administrative mandamus
regarding the Commission’s reduction of discipline imposed on an employee, the
superior court reviews the Commission’s factual findings for the existence of
substantial evidence, as DCFS’s right to manage and discipline its employees is
not a fundamental vested right. (County of Los Angeles v. Civil Service Com.
(1995) 39 Cal.App.4th 620, 633.) The superior court was thus required to apply
the substantial evidence test to the Commission’s decision. (Ibid.) In turn, “we
review the administrative decision, not the superior court’s decision, by the same
standard.” (Ibid.)
      To the extent DCFS challenges the severity of the penalty that the
Commission imposed on Eberly, we observe that the discretion to fix the penalty
is vested solely in the administrative agency, and that neither the superior court
nor an appellate court is free to substitute its discretion for that of the agency.
(Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652.) The
superior court thus examines the administrative agency’s decision for an abuse of
discretion. (Ibid.) On appeal, we review the agency’s decision under the same
standard. (Ibid.) Because our review “gives no deference to the trial court’s
determination,” it is de novo “vis-à-vis the trial court.” (Ibid., italics deleted.)
      Although we examine the Commission’s choice of a penalty for an abuse of
discretion, we independently interpret the applicable civil service rules and
administrative guidelines. (Yamaha Corp. of America v. State Bd. of Equalization
(1998) 19 Cal.4th 1, 7-8; Department of Health Services v. Civil Service Com.
(1993) 17 Cal.App.4th 487, 494.) “The construction of county ordinances and
rules is subject to the same standards applied to the judicial review of statutory


                                            5
enactments. In construing a legislative enactment, a court must ascertain the intent
of the legislative body which enacted it so as to effectuate the purpose of the law.”
(Id. at p. 494.)2


              B. Proceedings Before the Hearing Officer
       DCFS’s contentions focus on the hearing officer’s findings of fact and
conclusions of law, as the Commission accepted those determinations in their
entirety. We therefore set forth the evidence presented to the hearing officer and
his determinations.


                1. Allegations Regarding Misconduct
       Before the hearing officer, DCFS alleged that Eberly was subject to
discipline because she contravened its guidelines governing contacts with placed
children. DCFS’s procedural guide requires CSWs to conduct monthly meetings
with children living in foster homes and record those contacts within three days in
the CWS/CMS system. To support Eberly’s discharge for violation of those
procedures, DCFS relied on a civil service rule and several DCFS disciplinary
guidelines.
       Rule 18.031 of the Los Angeles County Civil Service Rules (Civil Service
Rule 18.031) (L.A. County Code of Ord., tit. 5, appen. 1) provides: “Failure of an

2
        We recognize that the superior court, in denying the petition for writ of mandate,
believed it was obliged to apply its “independent judgment” to the Commission’s factual
findings. However, as we review the court’s ruling, not its reasoning (J.B. Aguerre, Inc.
v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15), we will affirm
the ruling on any theory properly supported by the record (Day v. Alta Bates Medical
Center (2002) 98 Cal.App.4th 243, 252, fn. 1). Because we conclude there was
substantial evidence to support the Commission’s findings, the superior court’s
application of a more stringent standard of review cannot be regarded as prejudicial.



                                             6
employee to perform his or her assigned duties so as to meet fully explicitly stated
or implied standards of performance may constitute adequate grounds for
discharge, reduction or suspension.” The rule further identifies grounds for
discipline, including whether the employee has failed to “report information
accurately and completely” or has engaged in conduct “unbecoming a county
employee. . . .”3
       Chapter 14.400 of the DCFS Personnel Manual authorizes ranges of
sanctions for “1st offense[s]” in defined categories of misconduct. Under those
guidelines, employees who withhold information from superiors or fail to maintain
records may receive reprimands or suspensions (ch. 14.400, §§ A(15), F(3));
employees who do not follow established rules and regulations may receive a
penalty ranging from a warning or reprimand to a discharge (ch. 14.400, §§ B(4),
F(10)); and employees who engage in criminal, dishonest, or immoral conduct, or
violate a professional ethical rule, may receive penalties ranging from a 15-day
suspension to a discharge (ch. 14.400, §§ D(9), F(1)).


                 2. Evidentiary Showings Before the Hearing Officer
       At the evidentiary hearing, Felicia Mitchell, Eberly’s supervisor, testified
that in November 2009, Eberly asked for vacation time during the Thanksgiving

3
        Civil Service Rule 18.031 states: “Where appropriate, such grounds may include,
but are not limited to, qualitative as well as quantitative elements of performance, such as
failure to exercise sound judgment, failure to report information accurately and
completely, failure to deal effectively with the public, and failure to make productive use
of human, financial and other assigned resources. Grounds for discharge, reduction or
suspension may also include any behavior or pattern of behavior which negatively affects
an employee’s productivity, or which is unbecoming a county employee; or any behavior
or condition which impairs an employee’s qualifications for his or her position or for
continued county employment.”



                                             7
holidays. Mitchell was aware that Eberly had child care issues and her
grandmother was ill. Mitchell told Eberly that if she did not intend to return to
work before December, she had to complete her November duties prior to taking a
vacation.
      Mitchell further testified that during November 2009, Eberly told her that
she planned to visit a specific child on November 13. On that date, Eberly phoned
Mitchell and discussed the visit as if it had taken place. The following day,
Mitchell received a phone call from the child’s caregiver, who said Eberly had not
appeared for the visit. Mitchell examined Eberly’s entries in the CWS/CMS
system, and found no information regarding the visit.
      When Mitchell questioned Eberly regarding their phone conversation,
Eberly acknowledged that she did not make the planned visit, but stated that
Mitchell had misunderstood her remarks, which she maintained were intended to
describe a visit with a different child. Mitchell cautioned Eberly not to enter false
information in the CWS/CMS system regarding the missed visit, and initiated an
audit of Eberly’s CWS/CMS entries for November 2009. In late November,
Mitchell learned that Eberly’s CWS/CMS entries contained false statements
regarding four visits. The entries reflected a purported November 18 visit with a
child named “Albert” that did not take place, and otherwise misreported the
locations of visits with three other children on November 5, 13, and 18.
      Mitchell further testified that in May 2010, after Eberly was placed on
limited duties, Eberly directly entered some information in the CWS/CMS system.
According to Mitchell, although Eberly was permitted to arrange for a unit clerk to
input the information, it was improper for her to enter it herself.
      Eberly testified as follows: She was ordinarily responsible for 25 to 34
cases. In early November 2009, she learned that her grandmother had cancer. In


                                           8
addition, her husband, who had been acting as caregiver for their children,
received notice that he was to undertake two weeks of job training in late
November. When Eberly asked Mitchell for time off during the week of
Thanksgiving Mitchell replied that Eberly would be permitted to take the time off
only if she completed all her November visits by November 20, and documented
them in the CWS/CMS system.
      According to Eberly, that requirement compelled her to spend considerable
time out of her office making visits. “[F]or the first time” as a CSW, she created
entries for visits in the CWS/CMS system in advance of them, with the intention
of modifying the entries, if necessary, following the visits. Her plan was to
transmit new information by e-mail to Cindy Torres, her unit clerk. Eberly stated:
“I was in a time crunch to get my visits done and the information inputted in[to]
the system, so I tried to save myself a step, which I . . . realize is a mistake.”
Eberly acknowledged that her use of pre-visit entries was not “best practice,” but
denied that she intended to deceive anyone.
      Eberly further testified that she failed to correct the errors in the pre-visit
entries through oversights. On November 18, 2009, when she arrived at Albert’s
placement for a pre-arranged visit, neither he nor his caregiver was present. To
reschedule the meeting, she phoned the caregiver, who was unable to commit to a
new date for a visit because Albert was ill. Through an oversight, Eberly failed to
correct her CWS/CMS system entry for the visit. Regarding the remaining three
children, Eberly testified that she saw them outside their placements. Although
she made changes to her pre-visit entries after seeing the children, she mistakenly
failed to amend the meeting place identified in the entries.
      Eberly further testified that she was unaware of any problem regarding her
entries until December 29, 2009, when Albert’s caregiver told Eberly that


                                            9
someone from DCFS had contacted her regarding Eberly’s November visits, and
reminded Eberly that she never rescheduled the November 18, 2009 visit. When
Eberly realized that she had failed to carry out a November visit with Albert, she
discussed the issue with Mitchell, who asked her to complete a “missed child
contact form,” but mentioned no investigation into Eberly’s entries.
      Later, after discovering the investigation, Eberly sent a memorandum to
Roxanna Flores-Aguilar, a DCFS assistant regional manager. In the
memorandum, dated February 19, 2010, Eberly stated that she created an entry for
the scheduled November 18, 2009 visit with Albert before it occurred because she
was planning to take some time off, and needed to complete her visits. Eberly
further stated that she lacked a good explanation for the other erroneous entries,
but believed they were due to a “mistake.” Eberly denied that she “intentionally or
maliciously falsif[ied] a contact.”
      During the hearing, Eberly also denied that she phoned Mitchell on
November 13, 2009, to discuss a visit she never made. According to Eberly, on
that date, she learned that her own daughter was ill, and contacted the pertinent
child’s caregiver to cancel the scheduled visit. When the caregiver became irate,
Eberly phoned Mitchell to report the incident, and told her that she intended to go
home to care for her daughter.
      Eberly further testified that in May 2010, after she was assigned limited
duties, her caseload was distributed to other CSWs. While “cleaning out” cases
unrelated to her inaccurate CWS/CMS system entries, she discovered some
information that had not been entered into the CWS/CMS system. By e-mail,
Eberly forwarded the additional information to Torres for entry into the
CWS/CMS system. When Torres became confused regarding the information,
Eberly walked to her desk and made the entries herself, while Torres was present.


                                         10
According to Eberly, her assignment to limited duties did not bar that conduct. 4


             3. Hearing Officer’s Proposed Decision
      Following the presentation of evidence, the hearing officer issued a 15-page
proposed decision containing factual findings and conclusions of law. The officer
gave primary attention to the four CWS/CMS system entries cited in the DCFS’s
discharge letter. The officer found that the four entries contained falsehoods, as
one reported a visit with a child whom Eberly never saw in November, and the
others misidentified the locations of Eberly’s visits. According to the officer,
Eberly did not intend to deceive her superiors, concluding that “[s]he began her
entries on case notes prior to conducting the home visits and intended to correct
[them] after making the visits[,] but failed to do so due to admitted forgetfulness.”
The officer further stated that Eberly “put the entries into the computer prior to
visiting the children because she felt pressure to finish her work prior to taking
vacation leave to deal with family matters.”
      Although the DCFS’s discharge letter mentioned the May 2010 incident
without identifying it as a basis for Eberly’s discharge, the hearing officer
examined the incident and concluded that it was “de minimus.” According to the
officer, the evidence showed only that after Eberly asked Torres to input some old
contact information into the CWS/CMS system, Eberly entered it herself when


4
        Several other witnesses also testified during the evidentiary hearing. Roxanna
Flores-Aguilar testified that in March 2010, she assigned Eberly to limited duties. Art
Lieras, the officer who conducted Eberly’s Skelly hearings, testified that he recommended
that she be discharged. Lynne Condon, a DCFS employee relations manager, testified
that she assisted in the preparation of DCFS’s discharge letter regarding Eberly. She
opined that a discharge was the proper penalty for Eberly’s misconduct. Condon also
testified that Lieras recommended a 30-day suspension for Eberly.



                                           11
Torres became confused. The officer determined that Eberly’s conduct did not
constitute “a disciplinable incident.”
      Following a discussion of DCFS’s disciplinary guidelines, the hearing
officer determined that “[s]uspension under progressive discipline,” rather than a
discharge, was the appropriate discipline for the four pre-visit entries, noting that
Eberly had no prior record of discipline, that her misconduct did not harm the
children, and that she did not intend to deceive her superiors. The officer
proposed the following conclusions of law: “1. [Eberly’s] conduct . . . violated
[the DCFS disciplinary guidelines cited by DCFS]. [¶] 2. [Eberly’s] conduct
violated Civil Service Rule 18.031. [¶] 3. The allegations of the Letter of
Discharge are true. [¶] 4. The appropriate remedy is reinstatement of [Eberly] to
her position as CSW [], 20 days suspension, and reimbursement for salary and
benefits for the time since her discharge[,] minus the [20] days suspension time.”


      C. No Errors in Interpreting the DCFS Disciplinary Guidelines
      DCFS contends that the Commission, in adopting the hearing officer’s
proposed decision, erroneously interpreted the DCFS disciplinary guidelines to
“require that progressive discipline be imposed before discharge could be
effected.” We disagree.
      At outset, we observe that the hearing officer did not conclude that the
DCFS disciplinary guidelines required the imposition of progressive discipline.
Rather, the officer determined that under those guidelines, “[d]iscipl[ine] is
generally progressive unless the offense is so egregious that discharge without any
other prior record [of misconduct] is appropriate.” Furthermore, the officer
determined that although Eberly’s conduct might be characterized as “dishonest,”
it did not rise to egregious behavior warranting a dismissal under the guidelines, in


                                          12
view of her lack of an intention to deceive her superiors and the absence of harm
to the children. As explained below, we see no error in those conclusions, insofar
as they reflect interpretations of the governing rules and disciplinary guidelines.
      In construing civil service rules and administrative guidelines, we look first
to their language, “attempting to give effect to the usual, ordinary import of the
language and seeking to avoid making any language mere surplusage.”
(Department of Health Services v. Civil Service Com., supra, 17 Cal.App.4th at
p. 494.) If the language is ambiguous, we may give some weight to established
administrative interpretations of the rule or guideline. (Id. at p. 495.) In contrast,
if there is no ambiguity, we derive the intent underlying the rule or guideline
“‘from the plain meaning of the language itself.’” (Head v. Civil Service Com.
(1996) 50 Cal.App.4th 240, 244 quoting Botello v. Shell Oil Co. (1991) 229
Cal.App.3d 1130, 1135.)
      Because Civil Service Rule 18.031 mandates no specific sanction in any
given set of circumstances, we focus on the DCFS disciplinary guidelines. As
noted above (see pt. B.1., ante), Chapter 14.400 of the DCFS Personnel Manual
identifies several types of discipline for the misconduct alleged against Eberly,
including a discharge, but does not mandate the imposition of a discharge. Indeed,
the prefatory paragraph of that chapter states: “The list of disciplinary actions is
intended as a guide only, and should not be applied ‘Automatically’ in relation to
actual infractions. . . . All the circumstances surrounding a particular offense must
necessarily be considered.” Chapter 14.101 of the DCFS Personnel Manual
further states: “Generally, discipline will follow a ‘progressive-step method.’
This method attempts to correct . . . the employee’s . . . misconduct at the mildest,
most effective level. It should be imposed when the manager can reasonably
anticipate that the discipline will be effective.” (Underlining deleted.)


                                          13
      Exceptions to the “progressive-step” method are specified in Chapter
14.102 of the DCFS Personnel Manual (Chapter 14.102), which states: “There are
some acts of misconduct which by their nature are not appropriate for progressive
discipline. These acts [are] ones which the employee should have reasonably
known to be unacceptable, without specific notice from [DCFS], or which are
generally socially unacceptable. [¶] Such behavior includes, but is not limited to,
dishonesty, theft, violent or disruptive behavior, insubordinate behavior, or
behavior which is illegal or places [DCFS] in violation of [f]ederal law, [s]tate
law, . . . local ordinance[s], or court orders. Behavior of this type should be
disciplined by suspension, or[], if warranted, discharge on the first occurrence.”
      The DCFS disciplinary guidelines, by their plain language, support the
hearing officer’s conclusion that DCFS discipline is ordinarily progressive, absent
“egregious” misconduct. Similarly, the language of Chapter 14.102 substantiates
the officer’s conclusion that absent a prior record of discipline, a discharge is
warranted only for certain types of grave misconduct. Generally, under the
principle of expressio unius est exclusio alterius, the listing of items in a rule
establishes the types of items outside the scope of the rule. (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.) Because
the misconduct enumerated in Chapter 14.102 is intentional, injurious, or
manifestly wrong, judged by social or legal standards, the officer reasonably
determined that Eberly’s mistaken but ultimately harmless entries did not
constitute egregious misconduct warranting a discharge under the disciplinary
guidelines.
      In so concluding, we do not condone Eberly’s misconduct or minimize its
significance. We agree with the superior court that her behavior carried a
disturbing potential for serious harm to the children for whom she was


                                           14
responsible. As elaborated below (see pts. D. & E., post), we find only that the
Commission did not abuse its discretion in imposing a suspension as discipline for
the misconduct.


              D. No Error in Factual Findings
       DCFS contends that the Commission erred in finding that Eberly lacked the
intention to deceive when she entered the false information in the CWS/CMS
system. As noted above, the Commission adopted the hearing officer’s findings
that Eberly made the pre-visit entries in order to secure time off “to deal with
family matters,” and that she failed to correct them “due to admitted
forgetfulness.” For the reasons discussed below, we reject DCFS’s contention.
       In reviewing the Commission’s factual findings, we examine the record for
the existence of substantial evidence to support them. Generally, factual findings
are examined for the existence of substantial evidence. (Shupe v. Nelson (1967)
254 Cal.App.2d 693, 700.) On review for substantial evidence, “‘[c]onflicts and
even testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the [trier of fact] . . . to determine
the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.’” (Daly v. Wallace (1965) 234 Cal.App.2d 689, 692,
emphasis omitted, quoting People v. Huston (1943) 21 Cal.2d 690, 693.)5

5       Upon review for substantial evidence, we do not reweigh the evidence. (In re
Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) Rather, “the power of an appellate court
begins and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the determination
[of the trier of fact], and when two or more inferences can reasonably be deduced from
the facts, a reviewing court is without power to substitute its deductions for those of the
[trier of fact].” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics
deleted.)


                                            15
      Here, there is sufficient evidence to support the Commission’s findings.
Before the hearing officer, Eberly testified that she made the pre-visit entries
because she needed time off to resolve family matters, and that she planned to
correct inaccuracies in the entries after the visits, but mistakenly failed to do so.
That testimony is adequate to sustain the Commission’s finding.
      DCFS contends Eberly’s testimony was conclusively discredited by other
evidence, including evidence from Eberly herself. DCFS maintains that the four
November 2009 entries were “so specific and detailed that it is not possible that
[they] could have been entered in error.” DCFS also argues that Eberly’s
professed reasons for the entries -- namely, her grandmother’s illness and her
husband’s job training -- were not credible, as she never mentioned them in her
February 19, 2010 memorandum to Flores-Aguilar, and submitted no documentary
evidence corroborating their existence.6
      In addition, DCFS contends that Eberly gave shifting testimony regarding
her reasons for the entries. Eberly initially testified that she needed time off
during Thanksgiving week because her grandmother’s chemotherapy began that
week, as did her husband’s job training. She also stated that both considerations
motivated all four of her entries, the earliest of which concerned a visit on
November 5, 2009. She later acknowledged that her husband’s job training did
not motivate the earliest entry. According to Eberly, although she was aware that
her husband was to undergo training, she learned its starting date -- namely,
November 23, 2009 -- only “[t]wo days” before it began.


6
       In a related contention, DCFS argues that Eberly did not cite the purported reasons
during her Skelly hearings. However, that contention relies on matters beyond the proper
scope of our review, as no transcripts of the Skelly hearings were submitted to the
Commission or its designated hearing officer.



                                            16
        The evidence upon which DCFS relies did not conclusively discredit
Eberly’s testimony. As our Supreme Court explained in Clemmer v. Hartford Ins.
Co. (1978) 22 Cal.3d 865, 878, even internally inconsistent testimony from a
single witness may support a judgment. “It is for the trier of fact to consider
internal inconsistencies in testimony, to resolve them if this is possible, and to
determine what weight should be given to such testimony.” (Ibid.) Furthermore,
“[t]he testimony of a single witness is sufficient to uphold a judgment even if it is
contradicted by other evidence, inconsistent or false as to other portions.
[Citations.]” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) We reject the
statements of a witness that the factfinder has believed only if they are “inherently
improbable,” that is, “physically impossible or obviously false without resorting to
inference or deduction.” (Watson v. Department of Rehabilitation (1989) 212
Cal.App.3d 1271, 1293; see Daly v. Wallace, supra, 234 Cal.App.2d at p. 692.)
While a trier of fact might well have been skeptical of Eberly’s explanations,
Eberly’s testimony was neither physically impossible nor obviously false on its
face.
        We recognize that DCFS is understandably and appropriately concerned
regarding Eberly’s honesty, as she is charged with the care of children. However,
although a trier of fact could have rejected her testimony, the hearing officer and
the Commission did not do so. As explained above, under the standard governing
our review, there is sufficient evidence to support the Commission’s finding that
Eberly lacked the intent to deceive. 7

7
       DCFS’s reply brief contends that Eberly’s testimony regarding her “family issues”
conclusively shows that they motivated none of her inaccurate entries. DCFS argues that
Eberly became aware of her grandmother’s cancer and her husband’s job training at the
same time. DCFS further argues that Eberly first learned the training’s starting date “two
days” before it began on November 23. Because Eberly’s inaccurate entries were made
(Fn. continued on next page.)


                                            17
        E. No Abuse of Discretion in Imposing Suspension
        DCFS contends the Commission abused its discretion in reducing the
discipline imposed on Eberly to a 20-day suspension. As explained below, we
disagree.
        In reviewing the Commission’s exercise of its discretion, “we bear in mind
the principle [that] ‘[c]ourts should let administrative boards and officers work out
their problems with as little judicial interference as possible. . . . Such boards are
vested with a high discretion and its abuse must appear very clearly before the
courts will interfere.’ [Citations.]” (Talmo v. Civil Service Com. (1991) 231
Cal.App.3d 210, 230.) Under this standard, “[i]f reasonable minds may differ with
regard to the appropriate disciplinary action, there is no abuse of discretion.”
(Lowe v. Civil Service Com. (1985) 164 Cal.App.3d 667, 677.) Generally, in the
context of public employee discipline, “the overriding consideration” regarding an
abuse of discretion “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. [Citation.]” (Skelly, supra,15 Cal.3d at p. 218.)
        Here, the Commission adopted the hearing officer’s conclusion that
“[s]uspension under progressive discipline [was] appropriate in the
circumstances.” As noted above (see pts. C. & D., ante), the pertinent disciplinary


on or before November 18, DCFS maintains that they necessarily preceded Eberly’s
“family issues.”
       Eberly’s testimony compels no such conclusion. She testified that she first became
aware of her grandmother’s cancer at the “beginning of November 2009,” and that she
was aware of her husband’s impending training before she learned its starting date.
Furthermore, she conceded only that the training did not motivate her November 5 entry.
The record thus does not establish that the hearing officer erred in attributing Eberly’s
(Fn. continued on next page.)


                                           18
guidelines permit the imposition of a suspension in the absence of egregious
misconduct, and there was substantial evidence to support the factual finding that
Eberly acted without an intent to deceive. Furthermore, the record discloses
sufficient evidence to support the factual determinations that Eberly had no prior
record of discipline, that she was “a good productive employee,” and that her
misconduct caused no harm to the children under her care. In view of Chapter
14.400 of the DCFS Personnel Manual, which authorizes the imposition of
discipline at the “mildest, most effective level” likely to correct performance, we
see no abuse of discretion in the Commission’s decision to impose a 20-day
suspension.
       DCFS challenges that decision on several grounds, which we discuss below.


           1. No Deference to DCFS’s Decision to Discharge
       DCFS contends the Commission failed to give due weight to DCFS’s own
decision to discharge Eberly. However, nothing before us suggests that the
Commission was obliged to give substantial deference to DCFS’s decision.
       In Kolender v. San Diego County Civil Service Com. (2005) 132
Cal.App.4th 1150, a sheriff maintained on appeal that the pertinent commission
was required to review his findings related to a disciplinary decision for the
existence of substantial evidence, rather than making its own findings. The
appellate court rejected that contention, noting that neither the statutory scheme
applicable to civil service commissions nor the governing county charter specified
the commission’s standard of review of the sheriff’s findings. (Id. at pp. 1156-
1157.) The court concluded that “the [c]ommission should independently review


entries to “family matters.”



                                         19
the facts and law, and the [s]heriff’s findings and final disciplinary order are not
due substantial deference.” (Id. at p. 1157.)
      We reach a similar conclusion here, as DCFS has identified no statute or
rule obliging the Commission to defer to its decisions. Furthermore, the Los
Angeles County Civil Service Rules authorize the Commission to conduct
evidentiary hearings (rules 4.06, 4.07), and provide that “[i]n hearings on
discharges, reductions or suspensions in excess of five days, the burden of proof
shall be on the appointing power, except that the burden of proving affirmative
defenses shall be on the person asserting them” (rule 4.12, italics added). In view
of these rules, DCFS’s contention fails.


          2. Adequate Basis for Suspension
      DCFS contends that the Commission’s decision cannot be reconciled with
its conclusion that Eberly engaged in the misconduct alleged in the letter of
discharge, pointing to Hankla v. Long Beach Civil Service Com. (1995) 34
Cal.App.4th 1216 (Hankla). There, an off-duty police officer became involved in
a heated verbal dispute following a minor driving incident and fired a gun, thereby
wounding the other participant in the dispute. (Id. at pp. 1218-1222.) Following
an investigation, the officer’s employer discharged him, concluding, inter alia, that
he unnecessarily involved himself in the verbal dispute, and “intentionally and
without justification” fired his gun and caused a serious wound. (Ibid.) Although
the civil service commission found that the officer had engaged in that
misconduct, it reduced his discipline to a suspension. (Id. at p. 1222.) The
appellate court held that the reduction was an abuse of discretion because it
“manifest[ed] an indifference to public safety and welfare.” (Id. at pp. 1222-
1226.)


                                           20
        No such indifference is shown here, as Eberly’s misconduct was not of the
same magnitude as that displayed in Hankla. Although the Commission
concluded that she engaged in the misconduct alleged against her, it also found the
existence of significant mitigating circumstances warranting the imposition of a
suspension. In view of those findings, the Commission’s decision does not
constitute an abuse of discretion.8
        DCFS also maintains that the Commission’s ruling, as reflected in the
hearing officer’s 15-page proposed decision, does not properly articulate the
connection between the evidence and the Commission’s imposition of a
suspension. We disagree. Agencies rendering decisions subject to administrative
mandamus are obliged to “set forth findings to bridge the analytic gap between the
raw evidence and ultimate decision or order.” (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515; Code Civ. Proc.,
§ 1094.5.) Those findings are sufficient when “they apprise the interested parties
and the courts of the basis for administrative action.” (Gaenslen v. Board of
Directors (1985) 185 Cal.App.3d 563, 573.) That is the case here.9

8      DCFS suggests that the Commission gave insufficient weight to the May 2010
incident, arguing that her conduct “was a direct violation of verbal and written
instructions” regarding her limited duties. However, as the hearing officer noted, that
incident was not identified as a basis for Eberly’s termination. Furthermore, the evidence
before the officer showed that Eberly was permitted to have Torres enter the pertinent
information, and that she entered it herself while Torres was present. We see no error in
the Commission’s conclusion that Eberly’s misconduct was “de minimus.”
9
       In a related contention, DCFS suggests that the hearing officer’s report contains
contradictory findings. DCFS notes that although the officer expressly found Eberly did
not visit Albert in November 2009, in recommending a suspension, the officer stated that
“there was no harm [from the inaccurate entries] and all the children were seen by
[Eberly] . . . .” However, as the latter remark occurred within a discussion of harm to the
children, it is reasonably understood to mean that Eberly saw Albert, albeit after the
missed November visit.
(Fn. continued on next page.)


                                            21
           3. No Improper Reliance on Evidence Outside the Record
       DCFS contends the Commission’s decision was improperly influenced by
materials not admitted into evidence before the hearing officer. While considering
the hearing officer’s proposed decision, the Commission denied Eberly’s request
for judicial notice of items not submitted to the hearing officer, including portions
of the Los Angeles County’s policy regarding the Family Medical Leave Act (29
U.S.C. § 2601 et seq.) (FMLA). Under that policy, when an employer becomes
aware that an employee requires a leave for reasons falling under the FMLA, the
employer must direct the employee’s attention to the possibility of a FMLA leave.
DCFS argues that the Commission, in adopting the proposed decision, incorrectly
relied on the FMLA policy. As explained below, we reject that contention.


                  a. Governing Principles
       The Commission’s decision is subject to “a strong presumption that official
duty has been regularly performed.” (Schneider v. Civil Service Com. (1955) 137
Cal.App.2d 277, 284; Evid. Code, § 664.) The presumption is rebuttable, as “its
effect is to impose upon the party against whom it operates the burden of proof as
to the nonexistence of the presumed fact.” (Gee v. California State Personnel
Bd. (1970) 5 Cal.App.3d 713, 718; Evid. Code, § 606.) Thus, the presumption
may be dispelled only when the record affirmatively shows that an administrative

         Although Eberly was never asked whether she visited with Albert after the missed
visit, the record supports the inference that she did so. Eberly testified that her practice
was to see Albert at least once a month; that on December 29, 2009, when she discovered
the missed November visit, she sought Mitchell’s help because she had never before
failed to make a monthly child contact; and that she was responsible for her assigned
cases until April 2010, when she was placed on “desk duty.” In view of this evidence, the
hearing officer could reasonably conclude that Eberly made monthly visits with Albert
after the missed November visit.



                                            22
body failed to apply the requisite standards. (See Mountain Lion Foundation v.
Fish & Game Com. (1997) 16 Cal.4th 105, 132; Noguchi v. Civil Service Com.
(1986) 187 Cal.App.3d 1521, 1537-1538.)


                  b. Underlying Proceedings
       Although the full FMLA policy was not admitted into evidence before the
hearing officer, the parties offered testimony referring to the policy. Mitchell
testified that when Eberly sought time off, she made a vacation request, not a
request for leave under the FMLA. Eberly testified: “At the time [of the request,]
I didn’t think about FMLA. . . . I don’t know all the ramifications of that, all the
details of . . . how to get that time off.”
       Following the presentation of evidence, Eberly contended that “[a]t no time
did [Mitchell] offer leave pursuant to the [FMLA], [but] instead improperly
conditioned [Eberly’s] time off approval on expediting the completion of caseload
tasks, thereby contributing to the rush in [Eberly’s] work.” Although the hearing
officer’s proposed decision noted that contention, it contained no finding
regarding a violation of the FMLA policy. The hearing officer concluded only
that Eberly made the four pre-visit entries “because she felt pressure to finish her
work prior to taking vacation leave to deal with family matters.”
       Later, when the Commission proposed to sustain Eberly’s discharge, Eberly
asked the Commission to take judicial notice of the FMLA policy, insofar as it
imposed a duty on employers to offer FMLA leaves, as well as several disciplinary
decisions by the Commission. On January 18, 2012, at the hearing on the
Commission’s proposal to sustain Eberly’s discharge, the Commission denied
Eberly’s requests for judicial notice. Following that ruling, DCFS counsel argued
that the evidence before the hearing officer was “very clear” that although Eberly


                                              23
was aware of the FMLA policy, she made only a vacation request. He further
argued that the evidence established “no FMLA violation.” Eberly’s counsel
responded that he did not ask the Commission to find a FMLA violation, and
instead urged the Commission to find “as a mitigating circumstance that [Eberly]
was sped up in order to get the time [off].”
         After the parties’ counsel completed their arguments, the Commission
discussed a motion to adopt the hearing officer’s proposed decision. In support of
the motion, Commissioner Lynn Adkins stated: “I’m not condoning what [Eberly]
did. . . . But even without the FMLA, the [h]earing [o]fficer came down with a 20-
day suspension. And I’m wondering, where is management? [¶] . . . Where is
management, to take an employee and say . . . you’ve got FMLA here, you’re
obviously distraught, I’m going to put a little more pressure on you to do
something, and that . . . bothers me.” (Italics added.) Soon afterward, the
Commission decided to adopt the hearing officer’s proposed decision.


                  c. Analysis
         DCFS maintains that Commissioner Adkins’s remarks necessarily reflect a
reliance on the provision of the FMLA policy excluded under the Commission’s
ruling. We disagree. That ruling did not preclude Commissioner Adkins from
making references to the FMLA. Before the Commission, there was no dispute
that the evidence submitted to the hearing officer established the existence of the
FMLA policy, which provides for leaves in some circumstances. The
Commission’s ruling merely barred consideration of a specific aspect of that
policy, namely, the employer’s duty to inform employees of their right to a FMLA
leave.




                                          24
      Nor are Commissioner Adkins’s remarks reasonably understood to assert a
violation of that duty. In supporting the motion to adopt the hearing officer’s
recommended decision, Commissioner Adkins expressly noted that the hearing
officer made no finding regarding a FMLA violation. Viewed in context,
Commission Adkins’s remarks appear merely to chide “management” for applying
“a little more pressure” to a “distraught” employee, without even exploring the
possibility of a FMLA leave. Accordingly, DCFS has failed to rebut the
presumption that the Commission complied with its official duties. (See People v.
Belmontes (1988) 45 Cal.3d 744, 816, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [viewed in context, trial court’s
apparently improper remark reflected no disregard of governing law, and thus
failed to overcome presumption that official duties were performed].) In sum, the
Commission did not abuse its discretion in imposing a suspension on Eberly.




                                         25
                                        DISPOSITION
       The judgment is affirmed. Eberly is awarded her costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                    MANELLA, J.


We concur:




WILLHITE, Acting P. J.




EDMON, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.




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