Smith v. Cal. State Personnel Board CA4/2 (2022) · DecisionDepot
Smith v. Cal. State Personnel Board CA4/2
California Court of Appeal Feb 10, 2022 No. E074300MUnpublished
Filed 2/10/22 Smith 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 State Personnel Board CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
T. FITZGERALD SMITH, E074300 Plaintiff and Appellant, (Super. Ct. No. CIVDS1908082) v. ORDER MODIFYING OPINION CALIFORNIA STATE PERSONNEL AND DENYING PETITION BOARD, FOR REHEARING [NO CHANGE IN JUDGMENT] Defendant and Respondent;
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD,
Real Party in Interest and Respondent.
Appellant T. Fitzgerald Smith’s petition for rehearing is denied. The opinion filed
in this matter on January 24, 2022, is modified as follows:
The following footnote is added to at the end of the last sentence in section IV.B.
of the opinion:
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“In his reply brief, Smith argues the SPB lacked jurisdiction and violated his due
process rights. Smith forfeited these arguments by failing to raise them in his opening
brief. (See City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th
1271, 1318 [city forfeited argument that agency lacked jurisdiction by raising the issue
only in its reply brief]; H.N. & Frances C. Berger Foundation v. City of Escondido
(2005) 127 Cal.App.4th 1, 15 [party forfeited due process argument raised for first time
Except for this modification, the opinion remains unchanged. This modification
does not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
cc: See attached mailing list
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MAILING LIST FOR CASE: E074300 T. Fitzgerald Smith v. California State Personnel Board; California Unemployment Insurance Appeals Board
Superior Court Clerk San Bernardino County 8303 N. Haven Ave Rancho Cucamonga, CA 91730
Leland P. McElhaney Brunick, McElhaney & Kennedy 1839 Commercenter West P.O. Box 13130 San Bernardino, CA 92423-3130
Chian He State Personnel Board 801 Capitol Mall, #MC53 Sacramento, CA 95814-4806
Hima Raviprakash Office of the Attorney General 1515 Clay Street, 20th Floor PO Box 70550 Oakland, CA 94612
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Filed 1/24/22 Smith v. Cal. State Personnel Board CA4/2 (unmodified opinion) 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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
T. FITZGERALD SMITH, E074300 Plaintiff and Appellant, (Super. Ct. No. CIVDS1908082) v. OPINION CALIFORNIA STATE PERSONNEL BOARD,
Defendant and Respondent;
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD,
Real Party in Interest and Respondent.
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge
Affirmed.
Brunick, McElhaney & Kennedy and Leland P. McElhaney, for Plaintiff and
Appellant.
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Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General,
Fiel D. Tigno and Hima Raviprakash, Deputy Attorneys General, for Real Party In
Interest and Respondent.
No appearance by Defendant and Respondent.
I.
INTRODUCTION
Appellant T. Fitzgerald Smith was an Administrative Law Judge (ALJ) for the
California Unemployment Insurance Appeals Board (the Board). While presiding over a
hearing involving alleged workplace sexual harassment, Smith made comments that he
concedes were inappropriate. In response to a complaint about Smith’s comments, the
Board terminated him. The State Personnel Board (the SPB) upheld his termination, as
did the trial court.
Smith appeals. He does not dispute that his inappropriate comments warranted
discipline, but he argues his dismissal was too harsh a penalty. We conclude the SPB did
not abuse its discretion in finding that Smith’s dismissal was appropriate. We therefore
affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The Employment Development Department (EDD) denied Enrique Sandoval’s
claim for unemployment benefits because he was terminated for allegedly sexually
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harassing a coworker, Lopez. Smith, who had been an ALJ for about nine years, presided
over Sandoval’s appeal of the EDD’s decision.
At a hearing on the matter, Sandoval’s employer’s head of human resources, Jeff
Stumbo, testified about his investigation into Sandoval’s alleged harassment. Stumbo
testified that Sandoval made several unwelcome advances on Lopez, tried to kiss her,
encouraged her to meet him at a hotel, and texted her repeatedly. Lopez feared for her
safety because of Sandoval’s behavior.
Sandoval’s attorney, Nathan Kased, cross-examined Stumbo. During his cross-
examination, Kased asked Stumbo about Lopez’s appearance and her relationship with
Sandoval. The following colloquy between Kased and Stumbo took place:
“KASED: Your definition - you know again, the - the [employee] handbook that I
felt was a little blurry; is romantic relationship defined in the handbook anywhere?
“STUMBO: The word romantic I doubt is in there, but sexual harassment -
unwelcome verbal, physical, and visual conduct that is based on particular characteristics
and interferes with work performance constitutes harassment that’s prohibited by this
policy. And - then if you’re looking - I’m looking at Exhibit 13-1 and 2, which defines
harassment.
“KASED: Yeah, I-I believe you. I mean, that’s the standard doctrine of the
definition of - of sexual harassment or misconduct, unwelcome over a period of time. I
get that part. In terms of romantic relations - anything defined in that regard?”
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Smith then interjected: “I’m not so naive as to think that romance is hearts,
flowers, candy on - on Mother’s Day. Romantic means we’re gonna go somewhere and
have sex; that’s what romantic means in the modern context.”
Kased continued his cross-examination, and Smith again interjected with
comments that are the subject of this appeal:
“KASED: I - I felt otherwise, but - but that seems to be a pretty blunt statement.
“[SMITH]: No, I-I-I-I don’t believe it has any other connotation.
“KASED: Okay. That’s fine, your Honor; I’ll move on. Mr. Stumbo, have you
ever met Lopez in person?
“STUMBO: Yes.
“KASED: Okay. And you’ve seen what she looks like, correct?
“STUMBO: I know what she looks like, yes.
“KASED: Okay. And can you describe her a little bit.
“STUMBO: What’s the purpose of that?
“KASED: Her appearance. It’s – it’s relevant. Can you describe it?
“STUMBO: Latina, female, long hair.
“KASED: Okay. Is she overweight?
“STUMBO: Yes, she is.
“KASED: A couple hundred pounds?
“STUMBO: Oh, I don’t know about that. I don’t – I don’t have any idea what she
weighs.
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“KASED: Okay. Do you find – do you think she’s an attractive woman,
objectively speaking?
“STUMBO: I – I don’t understand this line of questioning, your Honor.
“[SMITH]: Well, I do.
“KASED: I’m just asking . . .
“[SMITH]: It – it - it’s a question. It’s fair. Is – is Ms. Lopez a person that would
be considered you know, an eight as opposed to a two? (Laughter.) . . . .
[¶]
“STUMBO: I mean she’s, I think several people probably do find her attractive.
She clearly has a long-term boyfriend and a - a one-year-old daughter. Do I find her
personally attractive? No.
“KASED: No. But – and she’s overweight, correct?
“SMITH: Well if she just had a baby she would be. You know, let’s give her the
benefit of that doubt.”
Stumbo’s employer filed a formal complaint against Smith for his comments
during the hearing. In response, Smith sent a letter to the Presiding ALJ. Smith
acknowledged that he “may have committed an error,” but had not had the “opportunity
to defend or explain [his] actions.” Smith explained that “anticipated several defenses
coming from [Sandoval’s] attorney” and thus thought his questions were necessary to
elicit testimony from Stumbo relevant to Sandoval’s defenses. Smith claimed his “asking
a clearly offensive question was an attempt to wake up the spokesperson for the employer
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[Stumbo] and to develop the record.” Smith thus intended for his questions to “pull
answers” from Stumbo and “goad” him “to go to his memory and not just his notes.”
The Board later terminated Smith. The Board reasoned that, as an ALJ, Smith was
held to the California Code of Judicial Ethics “and its high standards of conduct.” The
Board explained that those standards mandated Smith to maintain “public confidence in
the integrity and impartiality of the judiciary,” and that he failed to do so during the
Sandoval hearing. In particular, Smith failed to conduct “a fair, impartial, and dignified
hearing” by making “irrelevant, prejudicial, and degrading” comments, which showed
that he could not perform his duties as an ALJ.
Smith appealed the Board’s decision to the SPB. An ALJ for the SPB, ALJ Teri
L. Block, held an evidentiary hearing and issued a Proposed Decision in which she
recommended that Smith be suspended for six months. Although the SPB adopted ALJ
Block’s findings of facts and conclusions of law in her Proposed Decision to the extent
they were consistent with the SPB’s decision, the SPB rejected ALJ Block’s
recommendation that Smith be suspended. Instead, the SPB found that Smith’s dismissal
was “just and proper.” The SPB therefore upheld the Board’s decision to dismiss Smith.
Smith filed a petition for a writ of mandate in superior court seeking to reverse the
SPB’s decision. The trial court denied the petition, and Smith timely appealed.
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IV.
DISCUSSION
Smith does not deny his comments at the Sandoval hearing were inappropriate.
Nor does not dispute that he should be disciplined for them. But he asserts that his
dismissal was an improper, overly harsh penalty. We conclude the SPB did not abuse its
discretion in finding that Smith’s dismissal was appropriate.
A. Standards of Review
We review the SPB’s factual findings for substantial evidence. (Pollak v. State
SPB’s finding that Smith was likely to repeat his offending behavior, which in turn
supports its decision to uphold Smith’s dismissal. (Skelly, supra, 15 Cal.3d at p. 218.)
In any event, the “essential test” in deciding the appropriate employee penalty “is
whether the conduct harms the public service.” (Deegan v. City of Mountain View (1999)
72 Cal.App.4th 37, 50.) So when assessing whether the SPB abused its discretion in
imposing a certain penalty, “the overriding consideration . . . is the extent to which the
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employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm] to the public
service.’ [Citations.]” (Skelly, supra, 15 Cal.3d at p. 218.)
The SPB has “broad discretion in determining . . . whether dismissal or suspension
is the appropriate sanction.” (California Teachers Assn. v. State of California (1999) 20
Cal.4th 327, 343.) This is because “‘a disciplinary discharge often involves complex
facts and may require a sensitive evaluation of the nature and seriousness of the
misconduct and whether it warrants the grave sanction of dismissal.’ [Citation.]” (Id. at
pp. 343-344.)
Although others may disagree with the SPB’s decision that Smith’s dismissal was
appropriate—as ALJ Block did—the SPB abuses its discretion in fashioning a
disciplinary penalty only when its decision “exceeds the bound[s] of reason.” (Ng v.
State Personnel Bd. (1977) 68 Cal.App.3d 600, 605.) Its decision did not do so.
As an ALJ, Smith was held to a “higher standard” than other state employees.
(Ackerman, supra, 145 Cal.App.3d at p. 400.) He recognizes that he did not live up to
that standard by exercising “poor judgment” during the Sandoval hearing. He also
acknowledges that he violated several canons of the Code of Judicial Ethics by behaving
in an undignified manner and making comments during the Sandoval hearing that
objectified Lopez and could reasonably be understood as reflecting gender bias. Smith
admits that his “deliberate and affirmative misconduct . . . violated his obligations as a
judge and impaired the integrity of the proceedings before him.” He also admits that his
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comments “harmed the public service by discrediting [the Board] and himself” as an
ALJ.
Given Smith’s concessions and the “higher standard” applied to ALJs, “[w]e
cannot say that, as a matter of law, [the SPB] erred” in finding that his dismissal was
appropriate. (Ackerman, supra, 145 Cal.App.3d at p. 400; see also Skelly, supra, 15
Cal.3d at p. 218 [“overriding consideration” in deciding employee discipline is whether
employee’s conduct harmed the public service].) This is not an “exceptional case” where
“reasonable minds cannot differ on the appropriate penalty.” (County of Los Angeles v.
Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877.) Because
the SPB’s decision to uphold Smith’s dismissal was within its discretion, we affirm the
judgment.
IV.
DISPOSITION
The judgment is affirmed. The SPB may recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the State Personnel Board (SPB) did not abuse its discretion in upholding the termination of an Administrative Law Judge who made inappropriate, gender-biased comments during a hearing, as judicial officers are held to a higher standard of conduct.
Issues
Whether the State Personnel Board abused its discretion in upholding the dismissal of an Administrative Law Judge for inappropriate conduct.
Whether the State Personnel Board was required to apply progressive discipline to an Administrative Law Judge for a first-time offense.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We conclude the SPB did not abuse its discretion in finding that Smith’s dismissal was appropriate.”
“As an ALJ, Smith was held to a “higher standard” than other state employees.”
“The question whether progressive discipline was appropriate in [Smith’s] case was a matter within the [SPB’s] discretion.”