Filed 8/26/20 Theriault v. Cal. State Personnel Board CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO




 DONALD THERIAULT,

          Plaintiff and Appellant,                                       E073519

 v.                                                                      (Super.Ct.No. RIC1821770)

 CALIFORNIA STATE PERSONNEL                                              OPINION
 BOARD et al.,

          Defendants and Respondents;

 CALIFORNIA DEPARTMENT OF
 CORRECTIONS AND
 REHABILITATION et al.,

          Real Parties in Interest and
          Respondents




         APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge.

Affirmed.
       Tyler L. Talbot for Plaintiff and Appellant.

       Alvin Gittisriboongul, Chief Counsel, Chian He, Senior Attorney for Defendants

and Respondents.

       Janie Hickok Siess for Real Parties in Interest and Respondents,

       Plaintiff, Donald Theriault, appealed a decision by the State Personnel Board

(SPD) imposing a 24-day suspension without pay as discipline for various acts committed

in the course of his employment as a correctional officer for the Department of

Corrections and Rehabilitation (DCR). Following the administrative appeal, the

administrative law judge (ALJ) affirmed the discipline. Plaintiff then filed a petition for

writ of administrative mandamus in the Superior Court seeking to set aside the decision

by the administrative law judge. The Superior Court denied the petition, and this appeal

followed.

       On appeal, plaintiff asserts (1) his due process rights were violated based on a true

finding on one allegation based on a slight variance in the facts; (2) that the penalty

imposed was not just and proper. We affirm.

                                          BACKGROUND

       Correctional Officer C. Santa Cruz (Santa Cruz) works as a transportation officer

for the DCR at California Institute for Women (CIW), where she transports inmates to

and from CIW to outside medical facilities for medical treatment. Beginning in February

2016, Santa Cruz was assigned as partner to Plaintiff.




                                              2
       In approximately November 2016, after transporting inmates to Riverside

University Health System (RUHS) for medical treatment, Santa Cruz felt Plaintiff touch

her hair, pulling it. Santa Cruz has long hair, so, to meet grooming standards for

correctional officers, she wore it in a bun, although she referred to it as her ponytail.

Correctional Officer Cooper (Cooper)1 and two Riverside County Sheriff’s deputies were

present at the time. Santa Cruz was shocked and embarrassed by the act because it was

the first time this had happened, and because Cooper and one of the sheriff’s deputies

appeared to be shocked also. However, she did not report it because plaintiff explained

he was getting something out of her hair.2

       Cooper did report the incident to her sergeant, first verbally and later in writing,

along with other complaints about plaintiff.

       In January 2017, Santa Cruz and plaintiff, who were still working together,

transported inmates from Puerta La Cruz, a prison camp, to CIW for medical

appointments. After dropping the inmates off, they went to re-fuel the van just outside

the perimeter, and then returned to CIW to pick up the inmates.


       1  Cooper verbally reported this incident initally, which, according to her
testimony, led to plaintiff calling her a “bitch” when he was informed of the complaint.
However, the ALJ found Cooper’s account, in which she testified that Santa Cruz’s head
was jerked back when plaintiff pulled her hair and that Santa Cruz had tears in her eyes
over the hair pulling incident, was exaggerated and that her testimony about plaintiff
calling her a bitch was unreliable. We therefore omit reference to her testimony as to the
details of the incident.

       2Plaintiff testified he had done this in the past to remove leaves or toilet paper
from Santa Cruz’s hair, but Santa Cruz denied he had ever touched her hair in the past. It
would have been memorable if someone found toilet paper in another’s hair.

                                               3
       When they returned to the institution, Santa Cruz went into the reception center to

escort the inmates, but they were not ready because the Investigative Services Unit (ISU)

was scanning them, which meant something was going on with the inmates. ISU

normally investigates inmates over phones and drugs. Plaintiff waited in the van

because, as a male correctional officer, he could not participate in strip or pat searches of

female inmates. Due to the scanning by ISU, it took longer than usual. Santa Cruz

waited approximately 45 minutes for the inmates to be ready for transport.

       Upon reaching the vehicle, plaintiff exited the van and demanded, “Where have

you been, you fucking bitch? I have been looking everywhere for you. I can’t believe

you are milking the state for money, you cunt.” Thereafter, they got into the van and

started on the return trip.

       After they departed with the inmates, Plaintiff and Santa Cruz drove in silence to

Puerta La Cruz where they dropped off inmates, at which time Correctional Officer

Barajas (Barajas) contacted Santa Cruz to say that his partner, Correctional Officer

Hernandez (Hernandez), needed to meet and talk with plaintiff but had been unable to

reach him. Santa Cruz informed Barajas they could meet at Waba Grill in Temecula.

Once at Waba Grill, Santa Cruz and plaintiff got their food orders and used the

restrooms, and when plaintiff was done eating, he asked Santa Cruz what they were

waiting for. When Santa Cruz explained they were waiting for Barajas and Hernandez,

plaintiff complained he was tired of them “milking the state” and that they needed to

leave. Santa Cruz called Barajas to inform him they were leaving when plaintiff began



                                              4
yelling about her milking the state, and again calling her a “fucking cunt.” Barajas, who

was still on the phone with Santa Cruz at the time, heard the comments.

          When they were on the road, more words were exchanged, causing Santa Cruz to

start screaming at plaintiff to “shut the fuck up” and “leave me alone.” When they

reached CIW, Santa Cruz started to cry and reported the incident. From that point on,

plaintiff was no longer assigned as Santa Cruz’s partner. For her outburst, Santa Cruz

received a letter of instruction, which would stay in her personnel file for one year, for

violating ethics and professionalism regulations regarding the treatment of others.

          On September 28, 2017, plaintiff was served with a Notice of Adverse Action

pursuant to Government Code3, section 19574, informing him of his suspension for 24

qualifying work days, effective from October 9, 2017 to November 9, 2017. The notice

stated three grounds for the adverse action: inexcusable neglect of duty (§ 19574, subd.

(d)); discourteous treatment of the public or other employees (§ 19574, subd. (m)); and

other failure of good behavior during or outside duty hours which is of such a nature as to

cause discredit to the appointing authority of the person’s employment. (§ 19574, subd.

(t).)

          On October 17, 2017, plaintiff appealed the adverse action. At the hearing on the

appeal, plaintiff stipulated that he was unprofessional by using profane language against

Santa Cruz and that he was discourteous. The ALJ heard the testimony of Cooper and


          3   All further statutory references are to the Government Code, unless otherwise
stated.


                                                5
Santa Cruz, as well as plaintiff’s testimony, offered in his own defense. He denied

calling Cooper a bitch and denied other conduct of which Cooper had accused him.4

       However, just after the interaction with Cooper (in which he denied calling her a

name), he became aware that Sergeant Cheatham, the sergeant assigned to RUHS, was

following plaintiff and Santa Cruz back to CIW, where he met with plaintiff and Sergeant

Newborg, the transportation sergeant at CIW, to confront plaintiff about “cussing” at

Cooper.5

       Plaintiff denied calling Cooper a bitch and denied pulling Santa Cruz’s hair.

However, he admitted he pulled something out of her hair, explaining he had done so on

previous occasions, to remove leaves or toilet paper. Plaintiff admitting using profanity

and apologized, explaining that things got out of control on both their parts. Plaintiff also

acknowledged that in 2014 he had received a prior Notice of Adverse Action for being

discourteous to a female sergeant.

       The ALJ took the matter under submission and issued a written proposed decision

on March 28, 2018. The ALJ noted plaintiff had conceded using offensive language on

one occasion, but denied the remaining allegations. The ALJ also noted that plaintiff had

received a prior adverse action in December 2014, for which he had been penalized with

a 10 percent reduction in salary for 12 pay periods.

       4  Cooper testified that she had reported several aspects of plaintiff’s conduct
while at work in her report on the hair incident, including that inmates complained he
drove recklessly while transporting them, stayed in the van when he should have been
assisting his partner, and failed to bring in medical kits.

       5   In certain respects, this corroborates Cooper’s testimony.

                                              6
       As for credibility determinations, the ALJ found plaintiff did not dispute Santa

Cruz’s testimony; however, he found that Santa Cruz contradicted Cooper’s testimony

about the hair pulling incident, and Cooper’s testimony was unreliable with respect to the

incident in which plaintiff was alleged to have called Cooper a bitch. Based on Santa

Cruz’s testimony, the ALJ sustained all three allegations set forth in the Notice of

Adverse Action. Regarding penalty, ALJ found plaintiff’s misconduct was serious

because his actions resulted in harm to the public service, and damaged his professional

reputation, discrediting plaintiff as a Correctional Officer through his hostile behavior

towards Santa Cruz. The ALJ further found plaintiff had usurped Santa Cruz’s authority

by yelling at her and insulting her in the presence of female inmates.

       Additionally, the ALJ found plaintiff had insulted Santa Cruz using obscene

language specifically offensive to women at an institution housing female inmates. The

ALJ concluded plaintiff’s actions reflected poorly on himself and DCR. The ALJ was

also troubled by plaintiff’s prior adverse action, which occurred only four years prior and

was based on his insubordination and discourteous behavior towards his female

Correctional Sergeant, and indicated a likelihood of recurrence.

       The ALJ then made the following conclusions of law: (1) plaintiff’s conduct

constituted grounds for discipline pursuant to section 19572, subdivisions (d), (m), and

(t); and (2) the penalty of suspension for 24 days without pay is appropriate. On May 17,

2018, the SPD adopted the findings of fact and conclusions of law by the ALJ. Plaintiff

sought a rehearing, but his petition for rehearing was denied.



                                             7
       Plaintiff filed a petition for writ of administrative mandamus. On July 2, 2019, the

superior court denied the petition and entered judgment in favor of the SPD and DCR.

On August 16, 2019, plaintiff appealed.

                                           DISCUSSION

       Plaintiff first argues that his due process rights were violated by “a change in the

ponytail pull allegation”, and the denial of his writ petition based on due process

violation as well as insufficient evidence to support the ALJ’s findings, which had

formed the basis for the superior court’s ruling on the petition. He also challenges the

penalty imposed. Although the due process argument is combined with the challenges

related to the sufficiency of the evidence, we will treat them separately, and then will

proceed to his challenge to the penalty imposed.

       1.     There Was No Due Process Violation.

       a.     Background

       Plaintiff’s due process challenge focuses on the fact that the Notice of Adverse

Action referred to a “ponytail pulling” allegation involving the incident at the RUHS in

the November 2016. Specifically, the allegation stated plaintiff had grabbed Santa Cruz’s

ponytail and pulled her head back. During the testimonial portion of the appeal, Cooper

described seeing plaintiff grab Santa Cruz’s ponytail and pull her backwards Cooper

repeated on cross-examination that Santa Cruz’s hair was in a ponytail, but later clarified

that the hair was basically in a bun, a ponytail that was twisted into a bun, that came

undone when plaintiff pulled it.



                                              8
       Although Santa Cruz contradicted Cooper in certain details, such as, whether her

head jerked backwards or she cried, she also described her bun as a ponytail and

indicated the terms were used interchangeably. Significantly, both Cooper and Santa

Cruz testified to the same incident, occurring at RUHS in November 2016, and plaintiff

himself acknowledged there was an incident with Santa Cruz’s hair that occurred at that

time and place.

       Plaintiff asserts that the ALJ improperly changed the language of the charges

against him in finding that plaintiff pulled something from Sant Cruz’s hair, as opposed

to pulling a ponytail, thereby violating his due process right to notice of the charges

against which he would have to defend himself. We disagree.

       b.     Standard of Review

       A due process challenge to the procedural fairness of an administrative hearing is

reviewed de novo on appeal because the ultimate determination amounts to a question of

law. (Palmieri v. State Personnel Bd. (2018) 28 Cal.App.5th 845, 852, citing Nasha v.

City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

       c.     Analysis

       The California and United States Constitutions compel the government to afford

persons due process before depriving them of any property interest. (U.S. Const., 14th

Amend.; Cal. Const., art. I, § 7, subd. (a).) “[T]he California statutory scheme regulating

civil service employment confers upon an individual who achieves the status of




                                              9
‘permanent employee’ a property interest in the continuation of his employment which is

protected by due process.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 206.)

         The essence of procedural due process is notice and an opportunity to respond.

(Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546 [105 S.Ct. 1487,

1495, 84 L.Ed.2d 494, 506].) “‘The purpose of notice under the Due Process Clause is to

apprise the affected individual of, and permit adequate preparation for, an impending

“hearing.’” [Citation.]” (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264,

1279.)

         “The requirements of due process are flexible, especially where administrative

procedure is concerned.” (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017,

1037; see also Gilbert v. City of Sunnyvale, supra, 130 Cal.App.4th at p. 1276.)

However, a “public employee is entitled to oral or written notice of the charges against

him, an explanation of the employer’s evidence, and an opportunity to present his side of

the story.” (Gilbert v. City of Sunnyvale, supra, 130 Cal.App.4th at p. 1277.)

         The grounds and means of discipline of a state employee are governed by statute.

An adverse action may be taken against an employee only for a “cause for discipline

specified in this article.” (§ 19571.) The causes so specified are to be found in section

19572. (Negrete v. State Pers. Bd. (1989) 213 Cal.App.3d 1160, 1165.)

         The procedure by which a permanent employee may be dismissed or otherwise

disciplined is described in sections 19574 through 19588. The requirements of a formal

notice of adverse action are provided in section 19574. “Under section 19574 . . . the



                                             10
appointing power must serve upon the employee and file with the Board a written notice

specifying: (1) the nature of the punishment, (2) its effective date, (3) the causes therefor,

(4) [a statement advising the employee of the right to answer the charges], and (5) the

employee’s right to appeal.”6 (State Personnel Bd. v. Department of Personnel Admin.

(2005) 37 Cal.4th 512, 521, quoting § 19574; California Sch. Employees Assn. v.

Personnel Commission (1970) 3 Cal.3d 139, 144, fn. 2.)

       “No particular form of notice is required.” (Skelly v. State Personnel Board,

supra, 15 Cal.3d at p. 203, citing 29 Ops.Cal.Atty.Gen. 115, 120 (1957).) “In an opinion

issued on March 26, 1953, the Attorney General described the ‘statement of causes’ as

follows: ‘Such statement of causes is not merely a statement of the statutory grounds for

punitive action set forth in section 19572 but is a factual statement of the grounds of

discipline which, although not necessarily pleaded with all the niceties of a complaint in a

civil action or of an information or indictment in a criminal action, should be detailed

enough to permit the employee to identify the transaction, to understand the nature of the

alleged offense and to obtain and produce the facts in opposition [citations].’” (Skelly v.

State Personnel Board, supra, 15 Cal.3d at p. 203, fn. 15, quoting 21 Ops.Cal.Atty.Gen.

132, 137 (1953).)

       Allegations of misconduct are sufficiently specific if they permit the accused to

identify the transaction, understand the nature of the alleged offense, and prepare and


       6 “Appointing authority” or “appointing power” means a person or group having
authority to make appointments to positions in the state civil service. (§ 18524.) Here,
the Secretary of the DCR is plaintiff’s appointing power.

                                             11
present his defense. (Hostetter v. Alderson (1952) 38 Cal.2d 499, 502, citing Gipner v.

State Civil Service Com. (1936) 13 Cal.App.2d 100, 107.) In determining whether the

“charges” meet the minimum requirements of due process, we observe that the specific

requirement pertains to “written notice of the charges against him,” and the “explanation

of the employer’s evidence.” Generally, references to “charges” against an employee

relate the statutory grounds for discipline, referred to as the “causes.”

       This interpretation finds support in Brown v. State Pers. Bd. (1985) 166

Cal.App.3d 1151, 1164, where the court stated that the discipline of an employee of the

California State University and Colleges must be predicated upon a “‘statement of cause

[and] the events or transactions upon which the causes are based . . . ,’” citing Education

Code, section 89538. There, an employee was charged with a “pattern of sexual

harassment” (italics added) as a ground for dismissal, although, based on the evidence,

only one such incident was sustained. Under these circumstances, the court held the

evidence was insufficient to satisfy the grounds for dismissal. (Brown v. State Pers. Bd.

(1985) 166 Cal.App.3d 1151, 1163.)7

       7 Plaintiff cites Brown v. State Pers. Bd., supra, 166 Cal.App.3d at page 1164, for
the proposition that the Board may not alter the charging document or take action upon a
charge not made. However, the Brown case was decided on a substantial evidence
review, not a due process claim, and is therefore not authority for the proposition for
which it was cited. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134, quoting
In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [“‘“cases are not authority for
propositions not considered.”’”].) The language in Brown appears in the context of the
court’s analysis of whether discipline was proper where a “series or pattern” of unwanted
sexual advances against several female students had been charged, but where only one
instance of the employee propositioning a student was sustained. Given the fact the
university had no rules prohibiting faculty and students from dating, living together, or


                                              12
       Pertinent to the instant matter, the Notice of Adverse Action includes a section

entitled “Statement of Causes,” which lists the statutory grounds on which the SPD relied

in taking the adverse action. The references to the instances of misconduct alleged to

support the charges are set out in the section entitled “Statement of Facts,” where the

alleged incidents of misconduct are described.

       With respect for the statutory bases, or causes, for his discipline, plaintiff does not

claim that the language of the subdivisions of section 19574 with which he was charged

was vague, ambiguous, or unclear. He was familiar with the code of conduct applicable

to correctional officers. He does not argue that calling a female coworker a “bitch” or a

“cunt” does not constitute a violation of the statutory grounds with which he was

charged, nor does he argue that he was not put on notice of the specific instances of his

conduct that formed the basis for the charges against him.

       Indeed, at the time of each act, he was made aware that his conduct had been

reported to his supervising sergeants and, in his testimony, he acknowledged being

confronted by his superiors with the reports relating to the specific conduct near in time

to the reports. Instead, he asserts the ALJ improperly changed the allegations relating to

the facts of the misconduct from “pulling the ponytail” to “touching the hair.” In this

respect, plaintiff is in error because the charges against him were stated using the

statutory language and were not changed.


marrying (Brown., at p. 1163), the court concluded that a charge of committing a series of
acts of sexual harassment could not stand in the face of a single sustained event or
transaction.

                                             13
       The fact that certain incidents were set forth as the basis for those charges, and the

evidence suggested that the “ponytail” was not pulled, per se, does not rise to the level of

a due process violation, where the nature of the conduct as found by the ALJ nonetheless

supported the finding on the actual statutory charge and plaintiff was on notice of the

specific instances of conduct on which the charges were based. In other words, the

charges of violating various subdivisions of section 19574 were sustained even though

the evidence was deemed sufficient to prove only that he touched Santa Cruz’s hair

inappropriately.

       Plaintiff was properly charged by way of the Notice of Adverse Action, which

specified the three statutory grounds—or causes—for discipline, against which he would

need to prepare his defense. The factual underpinnings of those charges, set forth in the

Statement of Facts contained in the Notice, constituted the “events or transactions” upon

which the causes were based. As such, plaintiff had adequate notice of the charges

against him. Because the ALJ did not alter the charges, the superior court did not err in

denying the petition based on any due process violation.

       2.     There is Substantial Evidence to Support the Judgment.

       Plaintiff argues there is insufficient evidence to support the decision of the ALJ

because there is no evidence his conduct was malicious and because Santa Cruz did not

consider it misconduct. He then argues there was insufficient evidence to warrant the

denial of his petition for writ of administrative mandamus. We disagree.




                                             14
       a.     Standard of Review

       Under Code of Civil Procedure section 1094.5 judicial review of a final

administrative decision “shall extend to the questions whether the respondent [agency]

has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and

whether there was any prejudicial abuse of discretion. Abuse of discretion is established

if the respondent [agency] has not proceeded in the manner required by law, the order or

decision is not supported by the findings, or the findings are not supported by the

evidence.” (Code Civ. Proc., § 1094.5, subd. (b); Fisher v. State Personnel Bd. (2018) 25

Cal.App.5th 1, 13.)

       Review of disciplinary action by an appointing authority is directed in the first

instance to the State Personnel Board, which 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. (Cate v. State Personnel Bd. (2012)

204 Cal.App.4th 270, 281.)

       The SPB’s decision may then be reviewed by the superior court by way of a

petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) The trial

court reviews decisions of the SPB for substantial evidence, considering “‘“all relevant

evidence in the administrative record including evidence that fairly detracts from the

evidence supporting the agency’s decision.” [Citations.]’ [Citation.]” (Cate v. State

Personnel Bd., supra, 204 Cal.App.4th at p. 281, quoting California Youth Authority v.

State Personnel Bd. (2002) 104 Cal.App.4th 575, 585.)



                                             15
       When a petition for writ of administrative mandate challenges an agency’s

decision affecting a fundamental right, the trial court must exercise its independent

judgment to determine whether the agency’s findings are supported by the weight of the

evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10; Cassidy v. California Bd. of

Accountancy (2013) 220 Cal.App.4th 620, 626.)

       “The scope of our review from a judgment on a petition for writ of mandate is the

same as that of the trial court. [Citations.]” (Cate v. State Personnel Bd., supra, 204

Cal.App.4th at p. 282.) To the extent factual questions are involved, the [SPB’s] findings

of fact are reviewed under the substantial evidence test.” (Department of Corrections &

Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th 710, 716.)

       b.     Analysis

       The ALJ sustained the adverse action on all three charged grounds: neglect of

duty, discourteous treatment, and other failure of good behavior that causes discredit to

the appointing authority or the person’s employment. (§ 19572, subds. (d), (m), (t).)

       Section 19572 sets out the various causes for which a permanent employee may be

subject to adverse action, including, but not limited to, inexcusable neglect of duty (§

19572, subd. (d)); discourteous treatment of the public or other employees (§ 19572,

subd. (m)); and the 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, subd. (t).)




                                              16
       “‘Neglect of duty’ means the careless or intentional failure to exercise due

diligence in the performance of an official duty, the degree of care depending on the

character of the duty, and includes, therefore, wil[l]ful neglect and such forms of

misfeasance and malfeasance as involve a failure in the performance of the duties

required by law.” (Rapaport v. Civil Service Com. (1933) 134 Cal.App. 319, 323.) The

ALJ found that plaintiff’s use of indecent and abusive language towards Santa Cruz,

which plaintiff did not dispute, constituted neglect of duty, where DCR and SPB policies

prohibit such conduct. There is no need to prove malicious conduct and plaintiff cites no

authority for his position to the contrary.

       “Discourteous treatment” covers a fairly broad range of behavior, but where a

superior unjustifiably abuses a subordinate concerning the manner in which he or she

performs his or her job, may support a finding of discourteous treatment, even when

committed during off-duty hours. (Blake v. State Personnel Board (1972) 25 Cal.App.3d

541, 550.) Here, the record amply supports the ALJ’s finding that plaintiff engaged in

discourteous treatment by speaking to Santa Cruz in a hostile and indecent manner, and

in embarrassing her in front the presence of Cooper and the two sheriff’s deputies.

Whether he pulled her ponytail or removed something from her hair, there was no dispute

that she was shocked and embarrassed by the contact and she could see that the others

were shocked, as well. Plaintiff admitted committing the act so there is no basis for

finding insufficient evidence on this charge.




                                              17
       Finally, to qualify as actionable “failure of good behavior”, the misconduct must

bear some rational relationship to his employment and must be of such character that it

can easily result in the impairment or disruption of the public service or be detrimental to

state service. (Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, 483.) The ALJ

found that plaintiff’s use of profane and derogatory language while addressing Santa

Cruz created a hostile work environment for women correctional officers, and, because it

occurred while transporting female inmates, his conduct could be seen as representative

of male correctional officers in general, and thereby be detrimental to state service.

       Plaintiff did not dispute that the hostile exchange occurred or that he used profane

and indecent language in addressing Santa Cruz while transporting female inmates.

There is no requirement that the discourteous treatment be malicious in order to be

actionable. There is substantial evidence in the administrative record to support this

allegation.

       In other words, notwithstanding the fact the ALJ determined that the hair incident

involved touching or pulling something from Santa Cruz’s hair, as opposed to pulling a

ponytail, there was substantial evidence to support the findings on the three statutory

charges for discipline.

       3.     The Penalty Imposed Was Proper.

       Plaintiff argues that the imposition of the original penalty imposed in the Notice of

Adverse Action was an abuse of discretion because one of the three allegations against

Appellant was unfounded, requiring that it be modified. We disagree.



                                             18
       First, as we have explained above, the ALJ properly sustained all three allegations

against plaintiff, notwithstanding Cooper’s exaggeration. But even if one of the

allegations had been dismissed, it was not an abuse of discretion.

       The penalty imposed by an administrative body will not be disturbed in mandamus

proceedings unless an abuse of discretion is demonstrated. (Barber v. State Personnel

Board (1976) 18 Cal.3d 395, 404, citing Skelly v. State Personnel Bd., supra, 15 Cal.3d at

p. 217, fn. 31; Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, 87.) 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. (Nightingale v.

State Personnel Board (1972) 7 Cal.3d 507, 515.) The administrative determination will

not be disturbed absent an abuse of discretion. (Ramirez v. State Pers. Bd. (1988) 204

Cal.App.3d 288, 294, citing Barber v. State Personnel Bd., supra, 18 Cal.3d at p. 404.)

       According to Skelly, supra, the factors to be considered by the SPB in the

determination of the penalty include the “extent to which the employee’s conduct resulted

in, or if repeated is likely to result in. ‘[h]arm to the public service.’ [Citations.] Other

relevant factors include the circumstances surrounding the misconduct and the likelihood

of its recurrence.” (Skelly, supra, 15 Cal.3d at p. 218.)

       In the present case, plaintiff faced multiple allegations of misconduct based on two

separate incidents in which he demonstrated disdain for his partner, female Correctional

Officer Santa Cruz. The ALJ concluded the misconduct was likely to recur because




                                               19
plaintiff had faced prior charges of misconduct in the disrespectful behavior towards a

female sergeant, his superior officer.

       Plaintiff does not argue he did not do harm to the public service and does not

dispute that he was previously penalized by ten percent reduction in pay for 12 months

for similar conduct. While he is of the opinion that his penalty was disproportional to his

conduct considering the ALJ’s finding that the hair pulling was instead a pulling of

something from Santa Cruz’s hair, he fails to appreciate the gravity of his conduct.

       The ALJ found the misconduct was serious and usurped Santa Cruz’s authority

insofar as the hostile and degrading treatment of his partner was concerned. In addition,

the hair incident embarrassed Santa Cruz and shocked all who witnessed it. The prior

penalty, involving a reduction in pay, was severe, but was ineffective in modifying

plaintiff’s behavior, giving rise to the ALJ’s conclusion the misconduct was likely to

recur. For that reason, the suspension was affirmed by the ALJ. We also observe that

plaintiff’s inability to recognize the seriousness of his misconduct likewise increases the

odds of recurrence.

       Under the circumstances, the trial court was not free to substitute its judgment for

that of the administrative body, and neither are we. There was no abuse of discretion.




                                             20
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                               RAMIREZ
                                                         P. J.


We concur:

CODRINGTON
                       J.

RAPHAEL
                       J.




                                  21
