Kim v. State Personnel Board CA2/1 ( 2021 )

Filed 2/2/21 Kim v. State Personnel Board CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION ONE
DO HAK KIM, B298876
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS171095)
v.
STATE PERSONNEL BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mary H. Strobel, Judge. Affirmed.
SKLG, Edward G. Operini for Plaintiff and Appellant.
Erin Holbrook, Chief Counsel; Jerald M. Montoya, Deputy
Chief Counsel, and Razmig Khayalian for Defendant and
Respondent.
______________________________
After Caltrans terminated Do Hak Kim’s employment for
underperformance and insubordination, and the State Personnel
Board affirmed the decision, Kim petitioned the superior court for
a writ of mandate overturning the Board’s decision. The court
affirmed the Board in most respects and denied the writ. Kim
appeals, contending (1) the Board’s decision was unsupported by
substantial evidence, (2) discharge was too severe a penalty, and
(3) his Skelly rights were violated.1 We disagree with each
contention, and therefore affirm.
BACKGROUND
Caltrans hired appellant in August 1999, and in 2003
placed him in its Engineering Services division as a “Range D”
Transportation Engineer, charged with major construction
projects. His responsibilities included inspecting public works
projects, supervising contractors, and completing daily reports.
The position required knowledge of stress analysis, strength
properties and uses of construction materials, “mathematics as
applied to civil engineering; methods, materials and equipment
used in construction and maintenance of transportation
structures; surveying; and the methods of proportioning and
handling Portland cement concrete.” Appellant was supervised
by Leadworker Steven Kim (no relation) and Senior
Transportation Engineer Vaskin Kuyumijian.
In 2014, appellant stipulated to a six-month suspension to
settle disciplinary proceedings in which Caltrans alleged he
committed acts of insubordination, willful neglect of duty, and
misuse of state property. As part of the settlement, appellant
stipulated that he could be subject to another adverse action “if
1 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194(Skelly).
2
he violate[d] Government Code section 19572 by committing
wrongful conduct such as refusing a lawful assignment, telling a
supervisor to do Appellant’s work, telling a co-worker to do
Appellant’s work, leaving his assigned work location without
permission, or misusing state resources.”
On August 9, 2016, Caltrans initiated a second disciplinary
action against appellant, indicating he would be dismissed on
August 26 because he was incapable of performing some duties,
failed to perform others, was absent from work without leave on
at least one occasion, and had committed acts of dishonesty and
insubordination. Appellant appealed the adverse action to the
State Personnel Board (the Board), which held an evidentiary
proceeding presided over by an administrative law judge.
At the hearing, Stephen Kim testified that on March 29
and July 11, 2016, appellant was unable to calculate bridge and
culvert skew angles, “relatively easy” trigonometric calculations
that civil engineers of appellant’s grade are expected to be able to
do.2 Kim went over the assignments with appellant, describing
the work and providing project plans containing all pertinent
information, and offered assistance, but appellant was never able
to perform the calculations, even after four attempts over one or
two days; Kim was forced to perform them.
Kim testified that on several occasions, appellant’s daily
reports misclassified work performed. A March 30, 2016 report
failed to state the time or location of electrical work performed by
2 When a road intersects non-perpendicularly with a
feature such as a bridge or culvert, the contact area between the
two increases in size as a function of the angle of intersection. A
skew angle of 0 degrees means the road and feature are
perpendicular; a skew angle of 90 degrees means they are
parallel.
3
a contractor. A May 5 work report misstated the location and
nature of the work performed, and failed to include the bid
number or properly describe the foreman performing the work,
the type of “vibrator” machine used, or the type of concrete
poured. A May 13 report misstated the work location (a
significant mistake), provided incorrect work times,
mischaracterized contracted employees, and used indecipherable
terminology. Kim had to correct the errors.
On April 7, 2016, appellant failed to appear for work
without notifying anyone until the afternoon. When instructed
by Kuyumijian to charge the lost time as “absent without leave,”
he refused to do so, forcing Kuyumijian to make the correction.
On April 19, 2016, appellant was scheduled to supervise a
work project, but after reporting to the worksite remained in his
truck, forcing Kim to supervise the project. Appellant thereafter
left the job site and went to the Caltrans office. He told
Kuyumijian the work did not require his supervision, and he had
another assignment from Ron Fuentes to perform at the office.
Fuentes testified there was no such assignment, as the last task
he had given appellant was in March, when he told appellant to
sort 100 documents in chronological order. When asked whether
it was possible, given his other duties, that appellant had not
completed that task by April 19, Fuentes stated, “Possible.”
However, when asked by the administrative law judge whether
he was aware of any outstanding assignment, Fuentes stated,
“Not that I recall.”
Kuyumijian testified that when he told appellant he must
allow Kim, as Leadworker, to decide which work required
oversight, appellant responded, “you can talk to my lawyer.”
4
On June 2, 2016, a Thursday, appellant was tasked with
delivering a bridge roughness assessment to Caltrans
headquarters at 10:00 a.m. so it could be interpreted while the
assessor evaluated a second bridge, with the goal of performing
grinding work on both bridges the next day. Instead of doing so,
appellant waited four and a half hours to deliver the assessment,
resulting in Caltrans having to push the Friday work to Monday.
On July 14, 2016, appellant inspected a box culvert form
prior to a concrete pour, but failed to notice that fewer reinforcing
steel bars had been installed than were called for by the project
plans. Had Kim not caught the error the next day, the integrity
of the freeway passing over the culvert could have been
compromised.
On July 21, 2016, appellant failed to appear at a worksite
to supervise a 7:00 a.m. pile-driving operation. He instead went
to the Caltrans office, and told a coworker he would not be in the
field until 8:30 a.m. Kim discovered that appellant was at the
office and instructed him to go to the worksite, where he arrived
at 7:37, obligating another coworker to cover for him.
In his defense, appellant offered extensive evidence and
argument to the effect that Caltrans had failed to train him
adequately, his supervisors were particularly and unfairly
demanding, and his acts of neglect and nonfeasance constituted
only isolated failures that failed to establish good cause for his
discharge. We will describe some of this evidence below as it
becomes pertinent to the discussion.
The administrative law judge found that appellant’s
conduct constituted legal cause for discipline under Government
Code section 19572, subdivisions (b) (incompetency), (c)
(inefficiency), (d) (inexcusable neglect of duty), (e)
5
(insubordination), (f) (dishonesty), (o) (willful disobedience), and
(t) (other failure of good behavior). The judge found that
appellant failed to prove that Caltrans violated his Skelly rights,
and that dismissal was a proper penalty for his misconduct.
On May 4, 2017, the Board adopted the administrative law
judge’s decision, and later denied appellant’s petition for
rehearing.
Appellant petitioned the superior court for a writ of
mandate overturning the Board’s decision.
The trial court upheld the Board’s factual determinations
concerning appellant’s incompetency, dishonesty, inexcusable
neglect, insubordination, and willful disobedience, and upheld its
legal determinations that appellant’s Skelly rights were not
violated and termination was an appropriate remedy.
DISCUSSION
Appellant contends the State Personnel Board’s findings
were unsupported by substantial evidence. We disagree.3
A. Grounds for Dismissal
Tenure of California civil service employment “is subject to
good behavior, efficiency, the necessity of the performance of the
work, and the appropriation of sufficient funds.” (Gov. Code,
§ 18500, subd. (c)(6).) Adverse employment action may be taken
against a state employee on the grounds of incompetency,
inefficiency, inexcusable neglect of duty, insubordination,
dishonesty, inexcusable absence without leave, willful
disobedience, and “[o]ther failure of good behavior” that discredit
the employer. (Gov. Code, § 19572, subds. (b), (c), (d), (e), (f), (j),
(o), (t).)
3 The parties’ joint request for judicial notice of six
decisions of the Board is granted. (Evid. Code, § 459, subd. (a).)
6
B. Standard of Review
A writ of mandate will issue “to compel the performance of
an act which the law specifically enjoins, as a duty resulting from
an office, trust, or station . . . .” (Code Civ. Proc., § 1085, subd.
(a).) Where the writ is sought for the purpose of inquiring into
the validity of a final administrative decision made as the result
of a proceeding in which an evidentiary hearing is required, “the
case shall be heard by the court sitting without a jury.” (Code
Civ. Proc., § 1094.5, subd. (a).) “The inquiry in such a case shall
extend to the questions whether the respondent 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 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.” (Id. at subd. (b).)
We review the Board’s findings for substantial evidence.
(Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1483,
fn. 3.)
C. Analysis
The trial court upheld appellant’s discharge on grounds of
incompetency, dishonesty, inexcusable neglect, insubordination,
and willful disobedience.
1. Incompetency
“Incompetency” means “an absence of qualification, ability
or fitness to perform a prescribed duty or function.” (Pollak v.
Kinder (1978) 85 Cal.App.3d 833, 837; see also D.M. (1995) SPB
Dec. No. 95-10.) It “exists when an employee fails to perform his
or her duties adequately within an acceptable range of
performance,” despite training, direction, and offers of help. (K.S.
7
(2017) SPB Dec. No. 17-02, p. 15; Fortunato Jose (1993) SPB Dec.
No. 93-34, p. 2.)
Here, the Board found appellant’s inability to calculate the
skew of a bridge and culvert, failure on several occasions to
properly complete daily reports, and failure to identify missing
rebar while inspecting a bridge constituted incompetency.
Substantial evidence supported the determination.
Leadworker Kim testified that appellant was unable to calculate
bridge and culvert skew angles; misclassified work in his daily
reports on several occasions; and on one occasion failed to notice
that insufficient rebar had been installed in a project.
Appellant acknowledges these events, but argues they fail
to establish incompetency because alternative explanations exist:
He was inadequately trained, and isolated mistakes do not
constitute incompetence.
At the administrative hearing, appellant testified that he
was never trained in and had never performed skew calculations.
He was given something like one or two days to complete the
calculations, which was not possible, and Kim offered no help.
Appellant testified that of the approximately 1,000 reports
he had completed in his career, the March 30, 2016 report was
his first for Kim, who gave him no advance notice of his
idiosyncratic requirements. Once appellant learned what Kim
wanted, he corrected the report himself.
Appellant testified that the May 5, 2016 report—in which
he misstated the location and type of the work performed, failed
to include a bid number, and failed to properly classify the
foreman or describe the type of “pour” or type of vibrator used to
perform the work—was only the second he had ever written
about that particular type of project. He had never been told to
8
specify the type of foreman employed nor corrected for
misclassifying the type of vibrator. Appellant testified that
although he misclassified the pour, correct information about it
was inferable under the circumstances. Finally, appellant
testified that the bid number was immaterial, and its omission a
de minimus mistake. Other Range D engineers testified that
they made similar mistakes but were never disciplined for them.
Appellant admitted at the hearing that in the May 13, 2016
report he failed to identify whether a work location was an
undercrossing or overcrossing, provided incorrect work times,
mischaracterized contracted employees, and used indecipherable
terminology. However, Leadworker Kim himself testified that he
never asked for clarifications, and was able to understand what
appellant meant and make corrections himself.
Appellant argues this evidence mandated a finding that the
errors resulted from Caltrans’ failure to train him, not his
incompetency.
We disagree. On appeal, we may not reweigh the evidence
to determine whether it would have supported a finding the
Board did not make; we may only determine whether evidence
supports the finding it actually made. It was undisputed that
appellant’s job description stated that a transportation engineer
must be able to perform mathematical calculations associated
with civil engineering, and Kim testified that a Range D engineer
of appellant’s experience is expected to perform the “relatively
easy” mathematical calculations associated with skew angles.
This evidence supported the Board’s conclusion that appellant
lacked the ability to perform the prescribed duty despite training,
direction, and offers of help. Of course, it is always possible to
give more training, direction and help, but an employer is
9
entitled to expect minimum qualifications and performance and a
reasonable susceptibility to training, and failing those, to find the
employee incompetent.
It was also undisputed that appellant’s work required that
he write accurate reports, which he admittedly failed to do on
three identified occasions. The Board could reasonably conclude
from appellant’s lengthy experience that the carelessness he
exhibited in his latest reports reflected a lack of discipline rather
than of training, and fell below an acceptable range of
performance.
Finally, appellant admits he failed to notice missing rebar
prior to a concrete pour, but argues this was simply one mistake,
not incompetency. (Pollak v. Kinder, supra, 85 Cal.App.3d at p.
839 [one mistake does not constitute incompetency absent other
circumstances].) Although we agree that a single, honest mistake
in performing job duties does not, without more, constitute
incompetency, here the evidence indicated that appellant
committed several other mistakes, which all taken together
justify the Board’s finding.
2. Dishonesty
The administrative law judge found appellant was
dishonest when he told Kuyumijian on April 19, 2016, that he
was working on an unidentified project assigned by Fuentes.
Although Fuentes admitted at the hearing that it was possible
appellant was still working on a March assignment as of April 19,
the administrative law judge found that appellant’s deliberate
failure to identify the assignment meant he had received none,
but merely sought to avoid returning to work or going home and
having to dip into his leave balances.
10
Appellant argues that Fuentes’s testimony to the effect that
it was possible appellant was working on something he assigned
precludes a finding of dishonesty. We disagree.
A finding of dishonesty “generally requires a showing of an
intentional misrepresentation of known facts, or a willful
omission of pertinent facts, or a disposition to lie, cheat or
defraud.” (Gee v. California State Personnel Bd. (1970) 5
Cal.App.3d 713, 718-719; accord Haji Jameel (2005) SPB Dec. No.
05-02, p. 17, fn. 23.)
Fuentes testified that he gave appellant a minor
assignment in March, which he did not believe had carried into
April. The testimony was not so “inherently so improbable as to
be unworthy of belief.” (Flowers v. State Personnel Bd. (1985) 174
Cal.App.3d 753, 759.) Therefore, the Board was entitled to credit
Fuentes and reject appellant’s contrary testimony. (See Gov.
Code, § 11425.50, subd. (b) [credibility determination entitled to
great weight].) Moreover, appellant offered no explanation about
when he received the assignment from Fuentes, how complex the
task was, or why he had not completed it by April. The Board
was therefore entitled to surmise that appellant told Kuyumijian
about the task only to avoid having to work. In all, substantial
evidence supported the determination that appellant was
dishonest about working on Fuentes’s mesh diaries on April 19,
2016, justifying a finding of dishonesty under Government Code
section 19572, subdivision (f).
3. Inexcusable Neglect, Insubordination, and Willful
Disobedience
The Board found appellant inexcusably neglected his duty
when on April 7, 2016, he failed to appear for work without
notifying anyone until the afternoon. It found he was
11
insubordinate and willfully disobedient when he refused to
charge the lost time as “absent without leave” when instructed by
Kuyumijian to do so.
“Finding inexcusable neglect of duty requires finding an
employee intentionally or with gross negligence failed to exercise
due diligence in the performance of a known official duty. To be
subject to discipline for inexcusable neglect of duty, an employee
must have actual or constructive notice of expected standards of
conduct, unless the conduct is so clearly wrong that notice is not
necessary.” (K.S. (2017) SPB Dec. No. 17-02, p. 17.)
“To support a charge of insubordination, an employer must
show mutinous, disrespectful or contumacious conduct by an
employee, under circumstances where the employee has
intentionally or willfully refused to obey an order a supervisor is
entitled to give and entitled to have obeyed. A single act may be
sufficient to constitute insubordination if it meets the above test.”
(Richard Stanton (1995) SPB Dec. No. 95-02, p. 5.) Willful
disobedience requires evidence demonstrating only that appellant
intentionally disobeyed a specific command. (Richard J. Hildreth
(1993) SPB Dec. No. 93-22, p. 3.)
Appellant’s failure to appear for work without notice, which
he admits, is a quintessential neglect of duty. Appellant argues
the Board abused its discretion in finding him inexcusably
neglectful, however, because he had an excuse: He was sick and
his phone had broken.
But the administrative law judge disbelieved appellant’s
excuse, and we may not revisit such a credibility determination.
Appellant further admits that he was insubordinate and
willfully disobedient, and acknowledges some penalty should
12
follow, but he argues dismissal was too harsh. We shall discuss
the penalty below.
D. Dismissal was a proper Penalty
Appellant contends that his supervisors gave him
unreasonable deadlines, held unrealistic expectations, and
provided inadequate training, rendering his dismissal
unjustified. We disagree.
“ ‘[I]n a mandamus proceeding to review an administrative
order, the determination of the penalty by the administrative
body will not be disturbed unless there has been an abuse of its
discretion.’ ” (Skelly, supra, 15 Cal.3d at p. 217.) “In considering
whether such abuse occurred in the context of public employee
discipline, . . . the overriding consideration . . . is the extent to
which the employee’s conduct resulted in, or if repeated is likely
to result in, ‘[h]arm to the public service.’ [Citations.] Other
relevant factors include the circumstances surrounding the
misconduct and the likelihood of its recurrence.” (Id. at p. 218.)
When an administrative body’s findings are not in dispute,
abuse of discretion is established where the body’s order or
decision is unsupported by the findings. (Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
514-515.) The court conducts a “de novo comparison of the
findings and the penalty” to ensure that the findings are not
“inconsistent with [the administrative body’s] action in reducing
the penalty,” resolving all reasonable doubts in favor of the
administrative decision. (County of Santa Cruz v. Civil Service
Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1584
(Santa Cruz); Topanga, at p. 514.)
“[T]he overriding consideration is the extent to which the
employee’s conduct resulted in, or if repeated is likely to result in,
13
harm to the public service.” (Warren v. State Personnel Bd.
(1979) 94 Cal.App.3d 95, 107-108.) Whether an employee’s
conduct has resulted or is likely to result in harm to the public
service if repeated requires consideration of the nature of the
employee’s profession, because “some occupations such as law
enforcement, carry responsibilities and limitations on personal
freedom not imposed on those in other fields.” (Thompson v.
State Personnel Bd. (1988) 201 Cal.App.3d 423, 429.)
We may not substitute our own judgment for that of the
Board, nor “disturb the agency’s choice of penalty absent ‘ “an
arbitrary, capricious or patently abusive exercise of discretion” ’
by the administrative agency” (Cassidy v. California Bd. of
Accountancy (2013) 220 Cal.App.4th 620, 627-628), but must
uphold the penalty if there is any reasonable basis to sustain it.
(Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46.)
Only in an exceptional case will an abuse of discretion be shown
because reasonable minds cannot differ on the appropriate
penalty. (Id. at p. 45; see Kolender v. San Diego County Civil
Service Com. (2007) 149 Cal.App.4th 464, 471 [the court may find
an abuse of discretion where an agency’s decision exceeds the
bounds of reason].)
We review a penalty determination by the Board under the
same abuse of discretion standard applied by the trial court.
(Santa Cruz, supra, 171 Cal.App.4th at p. 1581.)
Here, appellant was unable to perform a number of
relatively basic tasks such as engineering calculations and
accurate report writing. He demonstrated a lack of diligence in
performing his duties on several occasions, both by failing or
refusing to show up for work and by making careless mistakes.
And he failed on several occasions to comply with Caltrans
14
policies and instructions from his supervisors. Appellant’s
supervisors testified that his failure to oversee a concrete pour
potentially created a major safety risk, and his miscalculations
for bridge and culvert skews, as well as his failure to notice
missing rebar on another project, could have placed the public in
physical and Caltrans in financial risk if left uncorrected.
The evidence suggests that appellant’s neglectful conduct
was persistent. He himself testified that he had been a Caltrans
engineer for 14 years, yet after all that time was still failing in
fundamental tasks, failing to appear for work, and refusing
instructions. Under these circumstances, we conclude the Board
acted within its discretion in affirming the penalty of discharge.
E. The Board properly concluded that Appellant did
not prove a Skelly violation.
Caltrans alleged appellant was insubordinate on August 2,
2016, when he refused to follow a directive issued by Kim. At the
hearing, the administrative law judge dismissed this allegation
as unfounded. Appellant nevertheless contends Caltrans violated
his Skelly rights by failing to provide him with the August 2 daily
report, upon which he argues Caltrans based the allegation. We
disagree.
Due process entitles public employees to a pre-disciplinary
hearing before any discipline is imposed. Before the hearing, the
employee must be given a copy of the charges and materials upon
which the action is based. (Skelly, supra, 15 Cal.3d at p. 215.) A
party claiming a Skelly error must demonstrate that absent the
error, he “would have obtained a better outcome.” (Fisher v. State
Personnel Board (2018) 25 Cal.App.5th 1, 20.) An employer’s
failure to provide the employee with a document that was not
used for a finding of misconduct is harmless. (Id. at p. 20.)
15
Here, the administrative law judge found that no evidence
indicated Caltrans relied on the August 2, 2016 report when it
charged him with insubordination. But we need not consider
that issue, because any error in failing to turn over the document
became harmless when that charge was dismissed.
DISPOSITION
The judgment denying the petition for a writ of mandate is
affirmed. Costs are awarded to Respondent State.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
16