Judge: Curtis A. Kin, Case: 23STCP00241, Date: 2024-07-16 Tentative Ruling

Case Number: 23STCP00241    Hearing Date: July 16, 2024    Dept: 86

Petitioner Richard Ellis petitions for a writ of mandate directing respondent Burbank Glendale Pasadena Airport Authority to set aside the termination of petitioner and restore him to his prior position of Police Officer with back pay. 

I.       Factual Background

Starting in 2006, petitioner Richard Ellis was employed by respondent Burbank Glendale Pasadena Airport Authority as a Police Officer at Hollywood Burbank Airport in Burbank. (AR 619, 1071.) Petitioner’s duties included having custody and control of a loaded firearm and driving around the airport. (AR 228 [HT 61:2-7], 39-40 [HT 39:15-40:19], 250, 898, 909, 925, 929.) Petitioner was terminated from his employment on July 21, 2021. (AR 925.)

During petitioner’s employment, petitioner was absent on 1,749 days and on modified duty for 772 days—totaling 2,521 workdays. (AR 228-29 [HT 61:15-62:24], 405, 407, 895-96, 909). During the approximately last two years of his employment, from March 8, 2019 to February 8, 2021, petitioner did not work a full-service workday as a police officer. (AR 407, 895, 909, 911.) Petitioner was on light duty from March 8, 2019 to December 5, 2019 and on medical leave from December 5, 2019 to December 7, 2020. (AR 895, 909.)

Plaintiff was on ultra-light duty from December 7, 2020 to February 8, 2021. (AR 895, 909.) During the last two months of his employment on modified duty, petitioner was absent 10 of 35 workdays, arrived to work late or left early 7 times, and fainted on duty on January 19, 2021, when he lay under a desk for approximately 2 hours before being discovered there. (AR 585, 588, 895, 909, 911.)

In addition, during petitioner’s employment, petitioner completed and signed three timecards indicating he had worked for at least three and a half hours more than his swipe card records indicate for his arrival to and departure from work for the days in question. (AR 715-17, 721-22, 732-52; cf. AR 1083-84 [ALJ noted that respondent sought discipline for three inaccurate timecards].) Petitioner admitted he submitted the timecards and that they were incorrect. (AR 721-22, 815:22-816:9.)

Respondent terminated petitioner’s employment on July 21, 2021 after Chief Edward B. Skvarna adopted and agreed with findings that “the Department cannot reasonably accommodate your extraordinarily excessive absenteeism for the past 14 years and its adverse impacts on the Department; that the Department cannot responsibly return you to active duty as a sworn officer to drive a vehicle and maintain a loaded weapon after fainting on duty and being down for 2.5 hours; and, because you submitted multiple false timecards.” (AR 925.)

Petitioner’s employment was governed by a Memorandum of Understanding (“MOU”) between a collective bargaining unit and respondent. (AR 266-375.) As relevant to this case, Section 10.7 of the MOU states:

If Management has reasonable and just cause to believe that an employee is not fit for duty either mentally or physically, Management may place the employee on administrative leave with pay until the employee is examined by a physician or psychologist designated by Management. The exam shall be paid for by the Authority.

(AR 318.) Respondent did not proceed with an independent medical examination under Section 10.7 of the MOU. (AR 1082.) Instead, before allowing petitioner to return to work in any capacity, respondent required petitioner to provide a current doctor’s note which (1) “specifically addresses or dismisses any potential impacts of medication which could cause drowsiness, sleeping, impaired judgment or lucidity, and/or which could impair your ability to possess, control and protect a loaded firearm or drive a vehicle on duty” and (2) identifies when petitioner could be expected to return to normal duty. (AR 63-64 [HT 63:23-64:7], 94-95 [HT 94:23-95:15], 150 [HT 150:5-20], 155 [HT 155:7-17], 382, 387-88, 390.) Petitioner provided reports from his doctors, but his doctors did not diagnose or treat the cause of petitioner’s fainting on duty. (AR 63-64 [HT 63:23-64:7], 70 [HT 70:13-22], 94-95 [HT 94:23-95:15], 222-24 [222:18-21, 223:24-224:1], 387-88, 390, 700.) Notably, while one of petitioner’s doctors cleared him for duty shortly after the fainting spell, the doctor did not address petitioner’s fainting in any manner. (AR 396, 398.)

Petitioner appealed the termination on July 27, 2021. (AR 937-39.) On February 22 and 23, 2022, the matter went to a full evidentiary hearing before Administrative Law Judge Joseph Montoya (“ALJ”) at the Office of Administrative Hearings. (AR 1068.) The ALJ issued a Proposed Decision on August 30, 2022 denying the appeal. (AR 1091.) The Proposed Decision upheld all three bases for termination based on the findings (1) that, by submitting inaccurate time cards, petitioner did not “meet the high standard for honesty imposed on all police officers”; (2) that respondent needed “a reliable officer” and was unable to accommodate petitioner’s absenteeism, need for modification of his duties, or fainting; and (3) that petitioner “was not physically up to the job.” (AR 1089-90.) The ALJ’s decision was adopted as the final decision of respondent on October 31, 2022. (AR 1066-67.)

II.      Procedural History

            On January 27, 2023, petitioner filed a Verified Petition for Writ of Mandate. On April 3, 2023, respondent filed an Answer.

            On November 27, 2023, petitioner filed an opening brief. On June 13, 2024, respondent filed an opposition. On July 1, 2024, petitioner filed a reply. The Court has received an electronic and hard copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

          Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the suspension of petitioner from his position as Police Officer concerns a fundamental vested right, the court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) 

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) In considering whether an abuse of discretion occurred, 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.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

IV.     Analysis

A.           Petitioner Fails to Demonstrate that Respondent Failed to Proceed in the Manner Required by Law

In the Opening Brief, petitioner challenges his termination on the ground that respondent did not proceed in the manner required by law. Petitioner contends that he was charged with misconduct only because respondent did not want to pay for a medical examination to find him unfit for duty, as purportedly required under Section 10.7 of the MOU.

            However, Section 10.7 of the MOU does not require respondent to order an examination. Section 10.7 states in relevant part:

If Management has reasonable and just cause to believe that an employee is not fit for duty either mentally or physically, Management may place the employee on administrative leave with pay until the employee is examined by a physician or psychologist designated by Management. The exam shall be paid for by the Authority.

(AR 318, emphasis added.) “Generally speaking, ‘the word “may” is permissive—you can do it if you want, but you aren't being forced to….” (Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 208.) By using the word “may,” the MOU provides respondent with the option, but not the obligation, to place an employee on administrative leave when the employee’s fitness for duty is in question until such time as an examination is completed.

Under Section 10.7, if respondent orders an examination, then respondent must pay for it. Here, however, respondent did not order any examination. (AR 1082.) Instead, respondent opted to ask petitioner for medical documentation from his own doctors addressing the reason why petitioner fainted on January 19, 2021. (AR 63-64 [HT 63:23-64:7], 70 [HT 70:13-22], 94-95 [HT 94:23-95:15], 222-24 [222:18-21, 223:24-224:1], 387-88, 390, 700.) Other than arguing the permissive provision of Section 10.7 required respondent to proceed in the manner provided by that section, petitioner presents no authority for the proposition that respondent could not proceed in the manner that it did, namely, asking petitioner to provide doctors’ notes probative of any reasonable accommodations that would allow petitioner to perform essential duties of his job, including carrying a firearm and driving a vehicle. (AR 228 [HT 61:2-7], 39-40 [HT 39:15-40:19], 250, 898, 909, 925, 929; cf. Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013, citing Taylor v. Principal Financial Group, Inc. (5th Cir.1996) 93 F.3d 155, 165 [employee has initial burden under Fair Employment and Housing Act to identify disability, resulting limitations, and suggest reasonable accommodations of limitations ].)

            Petitioner argues that he provided doctors’ notes that indicated that he was fit for duty with no restrictions. (AR 139-40 [HT 139:21-140:9], 396, 398.) However, the notes do not explain why petitioner fainted on January 19, 2021. (AR 396, 398.) The duties of a Police Officer include “[s]afely and skillfully us[ing] firearms” and “[s]afely operat[ing] a motor vehicle.” (AR 250.) Respondent’s “General Order 140,” which regulates the conduct of police officers, requires police officers to be “physically and mentally fit to perform their assigned duties and “properly equipped and cognizant of information for proper performance of their assigned duties” and to “remain awake, alert, and attentive while on duty.” (AR 253-54, 317.) Fainting limits petitioner’s ability to perform his assigned duties of carrying and using a firearm and driving a motor vehicle. Given petitioner’s inability to provide a cause for his fainting (AR 222-224 [HT 222:18-21, 223:24-224:1], 396, 398), respondent was entitled to conclude as it did that petitioner was not fit for duty and could not be reasonably accommodated.

            Petitioner argues that respondent’s charges of misconduct, including excessive absenteeism and falsification of timecards, was a pretext to terminate petitioner for taking time off for medical reasons. But petitioner did not argue in the administrative proceedings that he was discriminated against based on medical condition or retaliated against for taking medical leave. In petitioner’s appeal, he argued that he did not commit any misconduct, that the discipline for any misconduct was excessive, that respondent failed to provide petitioner with proper training, and that respondent failed to comply with its procedural and legal requirements. (AR 937-39.) In petitioner’s post-hearing brief, petitioner argued that respondent violated the MOU by placing the burden on petitioner to determine the cause of his fainting and that his submission of inaccurate timecards was inadvertent. (AR 1039-64.) While petitioner noted that discrimination against employees who seek workers’ compensation is prohibited (AR 1061), petitioner never argued in his appeal or post-hearing brief that he was subject to medical condition discrimination or retaliation for taking medical leave. (See AR 1085 [ALJ addressed claims of discrimination for seeking workers’ compensation benefits].)

The exhaustion doctrine “requires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a final decision on the merits of the entire controversy.” (McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533, 539.) “[E]xhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.” (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 293.) “The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.) Petitioner bears the burden to establish that it exhausted administrative remedies. (Westinghouse Elec. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 37.)

            Petitioner did not raise discrimination based on medical condition or retaliation based on taking medical leave during the administrative proceedings in any meaningful way.  He, therefore, cannot newly assert these claims in the instant writ proceeding. Tellingly, petitioner does not even attempt to address respondent’s argument regarding exhaustion in the reply.

            Because petitioner failed to demonstrate that respondent was required to order and pay for an examination before terminating petitioner, petitioner fails to demonstrate that a writ of mandate should issue.

B.           The Penalty of Termination Was Not Arbitrary, Capricious, or an Abuse of Discretion

Petitioner argues that discharge for timecard errors is excessive given his employment was improperly terminated for perceived unfitness of duty.[1]

“Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)

            For the reasons discussed above, the termination of petitioner’s employment as a Police Officer was not improper because his inability to provide an explanation for his fainting called into question his ability to carry a firearm and drive a motor vehicle. Police officers must be “found to be free from any physical…condition…that might adversely affect the exercise of the powers of a peace officer” upon hiring and thereafter (Gov. Code § 1031(f); Sager v. County of Yuba (2007) 156 Cal.App.4th 1049, 1059 [section 1031 standards must be “maintained throughout a peace officer's career”].) The record indicates petitioner was not free from a physical condition that could adversely impact his ability to perform his duties. Furthermore, petitioner does not dispute that he has taken the equivalent of 6.9 years of medical leave (AR 895-96, 1075) and that he submitted three inaccurate timecards—both of which might independently (and certainly do collectively) support the termination decision.

Under the circumstances presented here, termination of his employment was not arbitrary, capricious, or an abuse of discretion.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.