Judge James C. Chalfant, Case 21STCP00902 2023-01-24 Tentative Ruling

Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71; County of Los Angeles v. City of Los Angeles (“County”) (2013) 214 Cal.App.4th 643, 654. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

C. Governing Law^{^[1]}

1. POBRA

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) is located at Government Code^{^[2]} section 3300 et seq. and sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them. Bagett v. Gates, (1982)32 Cal.3d 128, 135. The various procedural protections of POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.” Jackson v. City of Los Angeles, (2003) 111 Cal.App.4th 899, 909.

“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” §3304(b).

Section 3304(b)’s limited purpose is to afford peace officers subject to punitive action an opportunity to establish a formal record of circumstances surrounding his or her discipline and attempt to convince the employing agency to reverse its decision through evidence that the charges are false or through mitigating circumstances. Binkley v, City of Long Beach, (1993) 16 Cal.App.4th 1795, 1806. While the precise details of the procedure required by Govt. Code section 3304(b) are left to local law enforcement, at minimum the administrative appeal requires an “independent re-examination” of an order or decision made, conducted by someone who has not been involved in the initial determination. Caloca v. County of San Diego, (2002) 102 Cal.App.4th 433, 443-44. The administrative decision-maker must “set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” Id. at 444.

A “‘punitive action’ means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” §3303. “The statute does not require a showing that an adverse employment consequence has occurred or is likely to occur. It is sufficient if the report's issuance and delivery to officials ‘may lead’ to such consequences in the future.” Otto v. Los Angeles Unified School Dist., (“Otto”) (2001) 89 Cal.App.4th 985, 997.

A punitive action may consist of placing a memorandum, letter, or report describing misconduct in the personnel file of an officer. See e.g., id. at 998 (“It is clear from the cases discussed above that a summary of conference memorandum may or may not constitute a punitive action. It will depend entirely upon its content.”); Gordon v. Horsley (2001) 86 Cal.App.4th 336, 348 (“But the letter went beyond criticizing Gordon; it specifically removed privileges that are accorded other peace officers. Although such restrictions are not listed as punitive actions in Government Code section 3303, we think it relevant the letter has been placed in Deputy Gordon's personnel file where it will almost certainly have an impact on his future opportunities for advancement in the sheriff's department.”); Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 354 (“[P]lacing the Report in the personnel file of each appellant cannot be done without affording each appellant an opportunity for administrative appeal under section 3304, subdivision (b).”); Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1222-23 (“Because [Citizen’s Law Enforcement Review Board’s] findings are actions which may lead to adverse employment consequences, they are ‘punitive action[s]’ within the meaning of the statute.”). Courts have held that reassignment to a lower paying position “is per se disciplinary, or punitive in nature[.]” White v. County of Sacramento, (“White”) (1982) 31 Cal.3d 676, 681-82.

No punitive action shall be taken, nor promotion denied on grounds other than merit, if the investigation of an allegation of an act, omission, or other misconduct is not completed within one year of the agency’s discovery by a person authorized to initiate the investigation and the public safety officer is notified of an intent to discipline. §3304(d)(1).

Section 3304(b) provides that “[n]o punitive action, nor denial of promotion on grounds other than merit” may be undertaken without an administrative appeal. Guinn v. County of San Bernardino (2010) 184 Cal.App.4th 941, 946. A denial of promotion on grounds related to merit – i.e., poor performance -- is not included in that definition. Id. (upholding demotion from supervisory position without administrative hearing due to unsatisfactory performance during probationary period). See also Conger v. County of Los Angeles, (2019) 36 Cal.App.5th 262, 272-73 ) (at minimum, factors “substantially related to successful performance of the duties of the position” constitute grounds other than merit under section 3304(b).

Section 3309.5(c) provides an exception to the general requirement of exhaustion of administrative remedies in police discipline cases: “The superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of [POBRA].” The court examines a POBRA violation under a “harmless error analysis.” Hinrichs v. County of Orange, (“Hinrichs”) (2004) 125 Cal.App.4th 921, 928; People v. Woodward, (1992) 4 Cal.4th 376, 387.

In any case where the court finds that a public safety department has violated POBRA, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer. §3309.5(d)(1).

“In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney’s fees as may be determined by the court. If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer who’s right or protection was denied, the public safety department shall also be liable for the amount of the actual damages.” §3309.5(e). The Civil Code defines malice as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Civil Code §3294(c)(1).

2. Fair Employment and Housing Act

Quesada notes that no case law establishes the burden of proof required for a peace officer to demonstrate that his denial of promotion was based on grounds other than merit. He contends that the court should analyze whether the County improperly failed to promote Quesada on grounds other than merit by analogy to the standard applicable to claims in which an employer failed to promote an individual for improper purposes under Fair Employment and Housing Act (“FEHA”) (§12900, et seq.). Pet. Op. Br. at 11. The County does not disagree. Opp. at 3-4.

Under FEHA, California courts have adopted the three-stage burden-shifting test established by the United States Supreme Court for discrimination claims based on a theory of disparate treatment. Guz v. Bechtel National, Inc. (“Guz”) (2000) 24 Cal.4th 317, 354. This burden-shifting test acknowledges that there will seldom be eyewitness testimony of the employer’s mental processes or other direct evidence of discrimination. Heard v. Lockheed Missiles & Space Co. (“Heard”) (1996) 44 Cal.App.4th 1735, 1748. The test allows plaintiffs to demonstrate via indirect or circumstantial evidence that they were the victims of discrimination. Heard, supra, 44 Cal.App.4th at 1749.

Pursuant to the burden-shifting test, the plaintiff has the initial burden to establish a prima facie case of discrimination. Guz, supra, 24 Cal.4th at 354. The burden is not onerous, but the plaintiff must generally prove that (1) he was a member of a protected class; (2) he was qualified for the position he sought or was performing competently in the position he held; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. Id. at 355; Heard, supra, 44 Cal.App.4th at 1751.

In cases where the plaintiff alleges that the reason given for failure to promote was pretextual, the plaintiff must show that: (1) the employee belongs to a racial minority; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. Clark v. Claremont University Center (“Clark”) (1992) 6 Cal.App.4th 639, 662–63. See also Mixon v. Fair Employment & Housing Com. (“Mixon”) (1987) 192 Cal.App.3d 1306, 1317–19. When assessing whether there is substantial evidence of discrimination, courts have considered whether the employee could reasonably expect promotion based on his or her ranking on the promotion list. Fair Employment Practice Com. v. State Personnel Bd. (“Fair Employment”) (1981) 117 Cal.App.3d 322, 333.

If the plaintiff presents a prima facie case, this creates a presumption of discrimination that the employer must then rebut with admissible evidence showing that its action was taken for a legitimate, non-discriminatory reason. Guz, supra, 24 Cal.4th at 355-356. If the employer meets this shifted burden, the plaintiff may attack the employer's proffered reasons as pretexts for discrimination or offer any other evidence of discriminatory motive. Id. at 356.

To avoid summary judgment on whether a reason is pretextual, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual; speculation is insufficient. Martin v. Lockheed Missiles & Space Company (“Martin”) (1994) 29 Cal.App.4th 1718, 1735. Without more, an assumption that the facts reflect discriminatory or retaliatory motive is purely speculative. Morgan v. The Regents of the University of California (“Morgan”) (2000) 88 Cal.App.4th 52, 73 and 80.

Employers must be given wide latitude to make independent, good-faith personnel decisions without the threat of a jury second-guessing their business judgments. Gonzales v. MetPath, Inc. (“Gonzales”) (1989) 214 Cal.App.3d 422, 428. Promotion decisions require evaluation of innumerable subjective considerations involving a prediction of future performance, which courts will not perform. Gonzales, supra, 214 Cal.App.3d at 428. Because an employer has discretion to choose among equally qualified candidates provided the decision is not based on unlawful criteria, a court’s opinion that the employer misjudged the qualifications of the applicants does not in itself expose the employer to liability. Los Angeles County Department of Parks & Recreation v. Civil Service Commission (“Castaneda”) (1992) 8 Cal.App.4th 273, 281.

In federal cases analogous to FEHA, the high court has acknowledged that without more, a policy of leaving promotion decisions to the unchecked discretion of lower-level supervisors, who are most familiar with the jobs to be filled and with the candidates for those jobs, raises no inference of discriminatory conduct. Watson v. Fort Worth Bank & Trust (“Watson”) (1988) 487 U.S. 977, 990. Courts do not sit as a super-personnel department that can determine whether the employer exercised prudent business judgment. Heerdink v. Amoco Oil Company (“Heerdink”) (1990, 7th Cir.) 919 F.2d 1256, 1260. An employer may hire, fire, or choose not to promote an employee for good reason, bad reason, reason based on erroneous facts, or for no reason at all, as long as its actions are not based on discriminatory purposes. Dudley v. Wal-Mart Stores (“Dudley”) (1996) 931 F. Supp. 773, 801-802.

Courts acknowledge that some cases present mixed motives for an employment decision for which both legitimate and illegitimate factors contributed. Heard, supra, 44 Cal.App.4th at 1748. The plaintiff must then present direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion. Id. at 1748. In other words, the plaintiff must produce evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision. Id. at 1749. Where a legitimate motive alone would have led an employer to make the same decision, but unlawful discrimination was a substantial factor motivating a termination of employment, a court may not award damages, backpay, or an order of reinstatement. Harris v. City of Santa Monica (“Harris”) (2013) 56 Cal.4th 203, 211. This does not mean that the employer escapes liability, as the plaintiff may still receive declaratory relief or injunctive relief to stop discriminatory practices when appropriate. Id. at 211.

In claims for retaliation, a plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action. Iwekaogwu v. City of Los Angeles (“Iwekaogwu”) (1999) 75 Cal.App.4th 803, 814. Suspicion and speculative testimony as to why the plaintiff thinks the adverse act occurred are insufficient when not supported by any evidence. Los Angeles County District Attorney v. Civil Service Commission, (“County District Attorney”) (1997) 55 Cal.App.4th 187, 201-202; George Arakalian Farms, Inc. v. Agricultural Labor Relations Board (“Farms”) (1980) 111 Cal.App.3d 258, 271. Only after the plaintiff proves this nexus does the analysis mirror the three-stage burden-shifting test of discrimination cases. Chen v. County of Orange (“Chen”) (2002) 96 Cal.App.4th 926, 949.

3. The Civil Service Rules

The County has adopted the County Civil Service Rules (“CSRs”) pursuant to the California Constitution and the County Charter. CSR 1.01.

In filling vacancies from an eligible list, the appointing authority shall make appointments from eligible lists certified by the director of personnel. CSR 11.01(A). The director of personnel shall assemble candidates into groups based on their weighted total score in the examination, rounded to the nearest whole number. CSR 11.01(B). In the case of open competitive examinations, veteran's credit shall be added before assembling the candidates into groups. CSR 11.01(B).

Ordinarily, passing candidates will be assembled into groups having fixed rangers of 95-100%, 89-94%, 83-88%, 77-82%, and 70-76%. CSR 11.01(C). In any open competitive examination where the addition of veteran’s credit points produces final candidate scores above 100 percent, a sixth group shall be created to include the eligible candidates. CSR 11.01(D).

In instances where the director of personnel has established through a validation or other special study prior to the examination that another grouping procedure should be employed, the alternative procedure so defined may be used, providing that the procedure is described in the official examination bulletin. CSR 11.01(D).

All appointments to positions in the classified service shall be made from the highest-ranking group on such lists, except that when the highest-ranking group does not include at least five persons who are available for appointment, the appointment may be made from the next highest group or groups to include at least five persons. CSR 11.01(E).

D. Statement of Facts^{^[3]}

1. Quesada’s Evidence

a. Background

Quesada joined LASD on April 12, 1995. Quesada Decl., ¶3. He has spent most of the last 20 years assigned to the Transit Services Bureau (“TSB”), which is his current assignment. Quesada Decl., ¶3. TSB officers generally patrol the County’s metro system. Quesada Decl., ¶4. They prevent crime, pose a police presence, work on community relations, make arrests, issue citations, and help the public. Quesada Decl., ¶4. Lieutenant Chris Mouat (“Mouat”) was TSB’s acting Captain until Captain John Burcher (“Burcher”) took over. Quesada Decl., ¶23.

Quesada generally received positive evaluations throughout his career. Quesada Decl., ¶5. His performance evaluation for the period of August 31, 2019 to August 30, 2020 had an overall evaluation of Very Good, the second to highest rating. Quesada Decl., ¶5, Ex. A.

b. The PRMS

As of July 13, 2020, Quesada’s Performance Recording and Monitoring System (“PRMS”) Report shows three investigations. Quesada Decl., ¶24, Ex. H. The first two -- operation of vehicles in 1999 and unprofessional conduct towards others in 2021 -- were founded. Quesada Decl., ¶24, Ex. H. An investigation in 2016 for failure to make statements, fraternization, and general behavior was inactivated. Quesada Decl., ¶24, Ex. H.

The PRMS also lists: (1) one preventable traffic collision in 2013; (2) 17 uses of force between 1999 and 2015; (3) eight Service Comment Report Commendations between 1998 and 2010; (4) 19 Service Comment Report Personnel Complaints for discourtesy and other issues between 1998 and 2014, most of which found Quesada’s conduct to be reasonable; and (5) four employee commendations between 2005 and 2011. Quesada Decl., ¶24, Ex. H.

The PRMS states at the bottom of each page:

“Note: D dispositions deemed unfounded or exonerated have been removed from this report (832.5 P.C.) No punitive action nor denial of promotion on grounds, other than merit, shall be taken for any allegation of misconduct, if the investigation exceeds a one year time period (excluding exceptions in 3304 Gov. Code).” Quesada Decl., ¶24, Ex. H.

c. The 2017 Petition

In June 2015, LASD began an administrative investigation into Quesada’s conduct. Quesada Decl., ¶8. On March 16, 2017, the Department notified Quesada that it would discharge him from employment after the investigation ended. Quesada Decl., ¶8. On April 12, 2017, Quesada filed a mandamus petition alleging that LASD violated section 3304(d) by sending the notice of intent 91 days after the statute of limitations expired. Quesada Decl., ¶9.

On May 3, 2017, the court issued a preliminary injunction enjoining the Department from imposing disciplinary action upon Petitioner pending a final determination. Quesada Decl., ¶10. On May 5, 2017, LASD sent Quesada notice that the case was inactivated under section 3304(d)(1) and that it would not take any further action. Quesada Decl., ¶11, Ex. C.

c. Loan to Fleet and Communications

When Quesada returned from leave after the investigation was inactivated, his superior officers, Captain Karl Schow (“Schow”) and Operations Lieutenant Tanya Clark (“Clark”), seemed happy to have him back. Quesada Decl., ¶15. Hours later, Captain Schow told Quesada that per orders from the Hall of Justice, Quesada was being temporarily loaned to Fleet and Communications, effective the next day. Quesada Decl., ¶15. Captain Schow said the decision was above his paygrade, and it was appeared that he felt badly about it. Quesada Decl., ¶15.

When Quesada reported to Fleet and Communications the next day, Captain Eli Vera (“Vera”) said that he did not care what Quesada “did” because Vera had “been in trouble” before. Quesada Decl., ¶16. Quesada asked why he was there when he should not be, and Captain Vera told Quesada that he would be fine if he did a good job. Quesada Decl., ¶16.

While at Fleet and Communications, Quesada attempted to bid for a TSB car during a division rebid because he was only on loan to Fleet and Communications, and he was TSB’s second-most senior member. Quesada Decl., ¶17. He was denied this opportunity. Quesada Decl., ¶17. Quesada submitted a grievance on May 30, 2017. Quesada Decl., ¶17, Ex. E. On November 3, 2017, LASD Captain Gregory Nelson (“Nelson”) informed Quesada that his grievance was granted, contingent on Quesada’s return to TSB. Quesada Decl., ¶17, Ex. E.

d. Promotional Exams and Denial

On June 15, 2017, Quesada submitted a grievance for LASD’s failure to notify him of the 2015 Sergeant Promotional Examination (“Sergeant Exam”). Quesada Decl., ¶14, Ex. D. Although Quesada was on administrative leave at the time because of the 2015 investigation, Department policy still required that he be told about the Sergeant Exam. Quesada Decl., ¶14. On November 3, 2017, Captain Nelson informed Quesada that, after recommendation by the Review Board, his grievance was denied. Quesada Decl., ¶14, Ex. D.

Quesada took the 2017 Sergeant Exam. Quesada Decl., ¶18, Ex. F. On August 15, 2019, LASD notified Quesada that he scored 93.38%, which was one question less than what he needed to qualify for Band 1. Quesada Decl., ¶18, Ex. F. The County has confirmed in responses to interrogatories that eight deputies were in Band 1, 85 in Band 2, 147 in Band 3, and 154 in Band 4. Ross Decl., ¶5, Ex. C. Other deputies in Band 2 were promoted, but Quesada was not. Quesada Decl., ¶18.

On November 27, 2019, LASD notified Quesada that he scored 95.72% on the 2019 Sergeant Exam. Quesada Decl., ¶6, Ex. B. Per CSR 11.01(E), this placed him in Band 1 for consideration of any appointment. Quesada Decl., ¶6, Ex. B. The County has admitted that only 13 of the 484 deputies who took the 2019 Exam were in Band 1. Ross Decl., ¶6, Ex. D.

LASD never promoted Quesada to sergeant. Quesada Decl., ¶7. LASD’s Intent to Promote Notices show that it promoted 239 deputies who took the 2019 Exam. Ross Decl., ¶10, Ex. H. The County has admitted that Quesada was the only deputy in Band 1 who was not promoted, and that some Band 3 candidates were promoted as well. Ross Decl., ¶6, Ex. D. Quesada believes that he was not promoted because LASD improperly considered the 2015 investigation of him. Quesada Decl., ¶12.

On February 6, 2020, Quesada submitted a grievance to LASD for its failure to promote him after his placement in Band 1 in the 2019 Sergeant Exam. Quesada Decl., ¶19, Ex. G. Chief James Hellmold (“Hellmold”), Quesada, and Mark Sanchez (“Sanchez”), a representative from the Association of Los Angeles Deputy Sheriffs (“ALADS”), discussed the grievance in a telephonic hearing on March 25, 2020. Quesada Decl., ¶19. At the hearing, Sanchez asked Chief Hellmold what Quesada needed to do for a promotion. Quesada Decl., ¶20; Sanchez Decl., ¶5. Chief Hellmold replied that he would ask a deputy to serve with integrity, abide by the LASD core values, and follow all state laws. Quesada Decl., ¶20; Sanchez Decl., ¶5. Chief Hellmold said that Quesada tested well and that he (Chief Hellmold) followed the selection process as outlined by County Human Resources. Sanchez Decl., ¶5.

Quesada insisted that he had a discipline-free record first for the past ten years, and second for the past five years. Quesada Decl., ¶21. Both times, Chief Hellmold responded that is not what he saw. Quesada Decl., ¶21. When Quesada asked what discipline Chief Hellmold was looking at, the latter said Quesada could get a copy from Operations. Quesada Decl., ¶21.

On March 25, 2020, Sanchez sent Quesada an email memorializing what Chief Hellmold said during the grievance conversation. Sanchez Decl., ¶6, Ex. A.

On April 6, 2020, Captain Dana Chemnitzer (“Chemnitzer”) informed Quesada that, after recommendation by the Review Board, his grievance was denied. Quesada Decl., ¶19, Ex. G.

e. Discovery Responses

In Special Interrogatories, Quesada asked why the County assigned him to Fleet and Communications after it inactivated the 2015 Investigation. Ross Decl., ¶3, Ex. A. The County responded that it was an appropriate assignment for a deputy who had been released of duty and not cleared to interact with the public. Ross Decl., ¶3, Ex. A.

Quesada asked why the LASD did not promote him to sergeant after his score on the 2019 Exam qualified him for Band 1. Ross Decl., ¶7, Ex. E. The County responded that many factors like leadership ability, professionalism, competence, and breath of work experience affect whether somebody is suitable for promotion. Ross Decl., ¶7, Ex. E. The County applied these factors to Quesada. Ross Decl., ¶7, Ex. E. When asked what documents support this argument, the County cited Quesada’s personnel records. Ross Decl., ¶7, Ex. E. When asked who was present at the Commander’s Panel that met to discuss whether to promote Quesada, the County replied that the panel met on December 16, 2019, April 15, 2020, and February 24, 2021. Ross Decl., ¶7, Ex. E.

In response to Requests for Admission, the County admitted that Commander Panel members could access inactivated disciplinary charges but denied that such access occurred. Ross Decl., ¶8, Ex. F.

The County denied that Sanchez asked Chief Hellmold at the 2020 grievance discussion what Quesada needed to do for a promotion and Chief Hellmold replied that a deputy needed to serve with integrity, abide by the LASD core values, and follow all state laws. Ross Decl., ¶6, Ex. D.

f. Burcher Deposition

On November 7, 2022, Quesada deposed Captain Burcher. Ross Decl., ¶4, Ex. B. Burcher was had responsibility for TSB. Ex. B, p. 12. Although Burcher was never part of a commander panel for a promotion, he understood it to be a consortium of commanders and chiefs who review the list of eligible candidates and decide who will sit or who they will appoint to that position. Ex. B, p. 14. It is a subjective process, and scores are not the only thing the panel considers. Ex. B, p. 14-15. As with any process that evaluates people, it can be subjective and consider personal factors such as prior discipline. Ex. B, p. 15. LASD will usually limit this to significant discipline, which is at least a five days’ suspension. Ex. B, p. 16. If a person has imposed discipline of five days or more within the past five years, he or she will not be eligible for promotion. Ex. B, p. 17.

In 2019, when Burcher was TSB captain, then-Commander Jack Ewell (“Ewell”) asked him to rank qualified candidates for sergeant like Quesada and identify the top five names for promotion. Ex. B, p. 17. Burcher reviewed each candidate’s evaluation, PRMS, and anything else in the personnel file. Ex. B, p. 17. When Burcher reviewed Quesada’s 2018 and 2019 performance evaluations, both were non-reviewed because Quesada spent both years on extended leave. Ex. B, p. 40.

Burcher also spoke to his Operations Lieutenant, Chris Mouat (“Mouat”), and his Operations Sergeant “Gianoour.” Ex. B, p. 39-40. Neither one had seen Quesada in a while. Ross Decl., ¶4, Ex. B, p. 39-40. Mouat and Gianoour mentioned the 2015 investigation. Ex. B, p. 41. Mouat said it concerned fraternization with a brother who was transporting money or drugs; Quesada may have been holding money for him. Ex. B, p. 42. Although Mouat was not sure, he thought the intended discipline was termination. Ex. B, p. 43. Burcher was not interested because LASD had inactivated the 2015 Investigation; Mouat also knew that. Ex. B, p. 43. Some in LASD use the disciplinary process for political gain. Ex. B, p. 30. As someone who experienced this firsthand, Burcher never considers an investigation unless the case is proven. Ex. B, p. 30. He treated Quesada’s inactivated investigation as if it was not there. Ex. B, p. 30. He did not discuss it with Commander Ewell. Ex. B, p. 30.

2. Respondents’ Evidence

a. Promotion Process

In County hiring and promotion practices, an "Eligible List" is composed of the names of candidates who have successfully completed all parts of a standard examination and are placed in group, or bands. Chemnitzer Decl., ¶10, Ex. B (County Department of Human Resources Policy (“HR Policy”) No. 150). This list shall be open to inspection except when the Director of Personnel determines that disclosing the names of candidates for high-level management positions would jeopardize their current employment. Ex. B (HR Policy No. 150). Candidates may receive copies of Eligible Lists within six months from the date that they were placed on the list. Ex. B (HR Policy No. 150).

The exam for promotion to a sergeant usually includes a 100-question written test and an oral interview. Burcher Decl., ¶7. The 2019 Sergeant Exam also included a rating from records. Chemnitzer Decl., ¶9. After LASD tabulates the scores on a promotional exam and places the individuals in bands, it generates an Eligible List compliant with HR Policy No. 150, which examination candidates and others can see. Hellmold Decl., ¶12; Burcher Decl., ¶7; Chemnitzer Decl., ¶10, Ex. B.

Panels of LASD executives (Commander Panels) then meet to consider all candidates on the Eligible List from all bands to promote based on each candidate’s performance record, suitability for promotion, the availability of specific openings within a particular Division, and other merit-based criteria. Hellmold Decl., ¶13; Burcher Decl., ¶9; Chemnitzer Decl., ¶11. This process is necessarily subjective. Burcher Decl., ¶9.

To encourage Commander Panels to be candid in the assessment of candidates, every participant must sign a confidentiality agreement and no contemporaneous notes or emails are permitted. Chemnitzer Decl., ¶14. Although members may access profile sheets completed by candidates complete, members only receive at the meeting (1) a list of candidates and (2) a spreadsheet with the demographic and assignment information of every candidate. Chemnitzer Decl., ¶15. Members can only reference those two documents at the meeting. Chemnitzer Decl., ¶15. Personnel Administration Bureau (“PAB”) employees attend Commander Panel meetings to intervene when a panel member justifies a position with invalid or inappropriate reasons. Chemnitzer Decl., ¶16.

LASD never relies on just the exam results because there are other skills needed to be an LASD sergeant. Hellmold Decl., ¶15; Burcher Decl., ¶10. The Department also considers a candidate’s background, breath of experience, training, and performance record. Hellmold Decl., ¶15; Burcher Decl., ¶12. A sergeant is a first-line supervisor for the Department. Burcher Decl., ¶12. Experience is a relevant factor because a sergeant/supervisor must have a sufficient knowledge base, including a knowledge of laws, and critical decision-making skills. Burcher Decl., ¶12.

Another factor is prior discipline. Burcher Decl., ¶11. Discipline imposed over five years ago has little weight or is not considered. Burcher Decl., ¶11. Discipline imposed in the last five years renders a candidate ineligible. Burcher Decl., ¶11. Other factors include Performance Evaluations, PRMS records, and personal observations of the employee’s performance. Burcher Decl., ¶11. Arrest statistics and other productivity data are also relevant; a candidate should neither have too long a period without arrests nor try to inflate the numbers. Burcher Decl., ¶11. Excessive reports of force are also a factor. Burcher Decl., ¶11. Burcher also asks whether a candidate can lead with authority, whether in day-to-day activities or emergencies. Burcher Decl., ¶12.

All LASD personnel, for promotion or otherwise, are expected to have integrity, comply with the law, and adhere to LASD Core Values. Burcher Decl., ¶13. Per CSR 11.01E, LASD can promote from lower bands once less than five candidates are in Band 1. Chemnitzer Decl., ¶13. LASD considers all reachable candidates and has promoted Band 2 or 3 candidates over Band 1 candidates based on non-exam criteria. Hellmold Decl., ¶13; Burcher Decl., ¶10; Chemnitzer Decl., ¶12. This happened with (1) one Band 1 candidate from November 23, 2004, (2) four Band 1 candidates from December 4, 2006, (3) one Band 1 candidate from July 1, 2011, (4) one Band 1 candidate from December 9, 2013, (5) one Band 1 candidate from April 29, 2016, (6) one Band 1 candidate from June 16, 2017, and (7) two Band 1 candidates from August 3, 2018. Chemnitzer Decl., ¶18, Exs. C-I.

b. Quesada’s 2017 Petition

On February 28, 2018, Dept. 86 (Hon. Amy Hogue) denied Quesada’s 2017 mandamus petition as moot. McGowan Decl., ¶4, Ex. B. By then, the Department had already informed Quesada that the 2015 investigation had been inactivated and no further action would be taken. See Ex. B. An inactivated designation is a case that is closed because of the statute of limitations or the employee’s departure before any discipline. See Ex. B. Although Quesada asserted that the LASD could initiate disciplinary proceedings against him after termination of the petition, no evidence suggested that it would. Ex. B. Section 3304(d)(1) would bar any disciplinary action based on the same allegations. Ex. B. As a result, the court entered judgment in favor of Respondents on June 6, 2018. Ex. B.

c. Quesada’s Qualifications

TSB works with the Metropolitan Transportation Authority (“MTA”) to police the stations, trains, and buses in the County. Burcher Decl., ¶4. TSB deputies ride on the buses and trains to provide a police presence, make arrests and issue citations as necessary, and to ensure to the greatest extent possible that persons who travel on the buses and trains are safe and secure. Burcher Decl., ¶4.

Mouat was TSB North’s Operations Lieutenant between 2013 and 2020. Mouat Decl., ¶5. He was also the reviewer who signed Quesada’s Performance Evaluation for August 31, 2016 and August 30, 2017. Quesada was rated Competent in all categories. Mouat Decl., ¶6, Ex. B. This Quesada was on authorized leave for most of this period: August 31, 2016 until May 6, 2017. Mouat Decl., ¶6.

Upon Quesada’s return from leave, he was loaned to Fleet and Communications for approximately three weeks, until May 30, 2017, when he began another authorized absence. Mouat Decl., ¶7. A transfer to a position that does not require a firearm or being in uniform is common practice for deputies who return from extended leave. Mouat Decl., ¶8. LASD will also arrange for retraining in firearms, use of force, and other important matters. Mouat Decl., ¶8. These are not punitive measures; they are meant to ensure that the deputy can resume their duties. Mouat Decl., ¶8. Quesada never voiced objection to his temporary reassignment to Fleet and Communications or filed a grievance or complaint with TSB or LASD about it. Mouat Decl., ¶9.

Burcher was TSB Captain for all of 2019. Burcher Decl., ¶4. Quesada was on leave when Burcher began his role as TSB Captain in January 2019. Burcher Decl., ¶5. Quesada returned on August 28, 2019. Burcher Decl., ¶5.

In July or August 2019, Burcher was asked to identify and rank TSB personnel for potential promotion. Burcher Decl., ¶14. By then he had been TBS Captain for eight months and had interacted with most candidates enough to know them by name and form assessments of each. Burcher Decl., ¶15. In most cases, he knew which individuals were leaders, performed duties and responsibilities in an exemplary manner or above expectations, spoke at briefings, and tried to coach other deputies. Burcher Decl., ¶15. Burcher had also observed interactions and critical incidents in the field through bus and train rides. Burcher Decl., ¶16.

Quesada was an exception because of his extended leave. Burcher Decl., ¶15. Burcher formed his opinion of Quesada from review of the PRMS, annual evaluations, and the observations of Operations Lieutenant Mouat and Operation Sergeant Eric Kianpour. Burcher Decl., ¶15. Burcher’s review of Quesada’s employment history showed that, other than his time with Fleet and Communications, Quesada remained with TSB for 20 years. Burcher Decl., ¶12. The number and variety of assignments is considered in deciding whether a person should be promoted to sergeant. Burcher Decl., ¶12. Burcher could not personally observe or interact with Quesada much due to the prolonged leave, but Mouat and Kianpour told Burcher that Quesada did not show the necessary leadership skills and qualities for a first-line sergeant. Burcher Decl., ¶12. The records Burcher reviewed supported this as well. Burcher Decl., ¶12.

Burcher concluded that Quesada was not a producer and that he had nothing striking in his favor. Burcher Decl., ¶19. He was a mediocre employee who made few arrests, did not issue many citations, and did not have the best work ethic. Burcher Decl., ¶20. Burcher’s opinion of Quesada has not changed since he returned from his leave of absence. Burcher Decl., ¶20.

When Commander Ewell asked Burcher for the names of five TSB officers he would recommend for promotion, Quesada was not among them. Burcher Decl., ¶¶ 17-18. Burcher was aware of the 2015 investigation of Quesada, but he acted as if it did not exist and never mentioned it to Commander Ewell. Burcher Decl., ¶21.

d. 2020 Grievance

Chief Hellmold held many positions in his 33 years with LASD before he retired in October 2021. Hellmold Decl., ¶¶ 3-4, Ex. A. As Chief of Special Operations Division, he oversaw the TSB. Hellmold Decl., ¶5.

He met with Quesada in March 2020 as part of the two-step grievance process. Hellmold Decl., ¶7. Qeusada noted that he was on an Eligible List but had not been promoted and wanted to be. Hellmold Decl., ¶7. Quesada speculated as to why this was so. Hellmold Decl., ¶8.

Hellmold found that Quesada did not articulate sufficient facts or reasons to justify a promotion to sergeant. Hellmold Decl., ¶8. Hellmold based this finding on Quesada’s background, training, experience, and review of applicable rules and regulations. Hellmold Decl., ¶¶ 9, 18. Based on his understanding of CSR 11.01(E), once LASD makes a number of promotions from Band 1, it is free to promote individuals from lower bands. Hellmold Decl., ¶¶ 10-11. LASD was not required to promote everyone from Band 1, including Quesada, before promoting from lower bands. Hellmold Decl., ¶11.

At the time, Hellmold knew about the 2015 investigation of serious issues of misconduct and the inactivation due to the statute of limitations. Hellmold Decl., ¶16. He did not deny Quesada’s grievance or countenance or permit any punitive action based on the investigation or because Quesada exercised his POBRA rights. Hellmold Decl., ¶17.

e. Quesada Deposition

Respondents deposed Quesada on October 25, 2022. McGowan Decl., ¶2, Ex. A. Quesada has been an LASD employee since 1995 and has been assigned to TSB for 20 years. Ex. A, p. 25. His time with TSB was not continuous. Ex. A, p. 25-26. Five years ago, he spent about six months with Fleet and Communications. Ex. A, p. 26.

Discipline includes anything from reprimand or written warning to demotion, suspension, and termination. Ex. A, p. 34. The LASD has suspended him without pay for traffic violations twice in his 27-year career. Ex. A, p. 35. He does not recall any time where he received written reprimand or a letter of demotion. Ex. A, p. 38.

Quesada has taken the Sergeant Exam 4-6 times in his career. Ex. A, pp. 38-39, 42.

For the 2019 Exam, Quesada received notice that he scored 95.72% and that he was in Band 1. Ex. A, p. 43, 57-58. He believed that it was inevitable that he would be promoted. Ex. A, p. 58-59.

The 2020 grievance discussion with Chief Hellmold was by telephone and lasted about one hour. Ex. A p. 75. Hellmold told Quesada that while he tested well, he should follow LASD core values, policies, and state laws. Ex. A, p. 69, 82. Quesada understood that deputies and sergeants need integrity and to comply with policy, but he did not know the LASD core values by heart. McGowan Decl., ¶2, Ex. A, p. 84. Quesada interpreted Hellmold’s comments to mean that he was not promoted because it failed to discharge him after the 2015 investigation. Ex. A, p. 70.

Quesada then said he had a stellar record when it came to discipline and Chief Hellmold disagreed. Ex. A, p. 70. Quesada said that he had not had discipline in the past ten years and Hellmold said: “That is not what I see.” Ex. A, p. 70. Quesada said that conservatively he had not had discipline in the past five years. Hellmold again said; “That’s not what I see.” Ex. A, p. 70. Hellmold did not tell him what discipline he was looking at and Quesada did not have his own file in front of him. Ex. A, p. 70. Quesada inferred that Hellmold was reading some disciplinary record that Quesada did not know about, but Quesada does not know for sure if that was the case. Ex. A, p. 70. Quesada does not know if Hellmold had with him the written grievance, the 2019 Exam results, performance evaluations, or written record of the prior intended discipline from the 2015 Investigation. Ex. A, pp. 80, 82.

No one in LASD has suggested the Quesada that the Department did not promote him because of the 2015 investigation. Ex. A, p. 87. No other document suggests something similar. Ex. A, p. 88. Quesada did not know how many Band 2 and Band 3 candidates who were promoted have less experience and tenure than him. Ex. A, p. 100. Although the Petition alleges that someone maliciously violated section 3309.5 with intent to harm Quesada, he does not know who did so. Ex. A, p. 100.

Quesada took the Sergeant Exam in 2021 but did not pass. Ex. A, p. 42-43. He knew the correct answers but deliberately chose wrong ones. Ex. A, p. 54.

E. Analysis

Petitioner Quesada seeks traditional mandamus to compel LASD to promote him to sergeant and award him with full backpay and benefits.

Quesada’s theory is as follows. LASD may not take punitive action against him, nor deny him a promotion on grounds other than merit, without providing him with an opportunity for administrative appeal.” §3304(b). In his previous lawsuit, LASD was preliminarily enjoined from doing so because it did not complete its investigation and notify him of an intent to discipline within one year. §3304(d)(1). LASD then abandoned the investigation as time barred.

LASD has used this time-barred investigation of his misconduct as a factor in failing to promote him to sergeant. This misuse of the time-barred investigation is a violation of section 3304(d)(1), which proscribes promotion denied on grounds other than merit for time-barred investigations.

Quesada contends that the issue is whether LASD considered the inactivated charge when denying him a promotion. LASD has a ministerial duty to not consider charges outside the one-year statute of limitations set forth in section 3304(d)(1), and Quesada has a clear, present, and beneficial right to the performance of that duty. Furthermore, the consideration of such inactivated charges would plainly be an abuse of discretion pursuant to County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 654. Reply at 6.

Although Quesada wants the court to apply the three-stage burden-shifting created in the federal case of McDonnell Douglas Corp. v. Green, (“McDonnell Douglas”) (1973) 411 U.S. 792, 802-04, for FEHA disparate treatment discrimination claims (Guz, supra, 24 Cal.4th at 354), and the County does not oppose doing so (Opp. at 3-4), the court declines the request.

Disparate treatment FEHA claims have no direct application to this case, a fact which Quesada recognizes by asking the court to apply burden-shifting by analogy. Such claims require proof that (1) the plaintiff is a member of a protected class; (2) he was qualified for the position; (3) he was not promoted, and (4) some other circumstance suggests discriminatory motive. Heard, supra, 44 Cal.App.4th at 1751. The plaintiff need not show that in a disparate treatment discrimination case that “but for” the intentional discrimination he would have been promoted, but he must show that it was a determinative factor. Hazen Paper Co. v. Biggins, (1993) 507 U.S. 604, 610.

Disparate treatment discrimination law plainly does not apply here. Quesada is claiming that the Department improperly considered the 2015 inactivated investigation in his promotion decision. He is not claiming he is in a protected class, and he does not attempt to show a discriminatory motive in the Department’s failure to promote him. He also is not required to show that consideration of his 2015 investigation was a determinative factor in the failure to promote him. Nor is this a case where LASD must rebut a prima facie case with admissible evidence that it failed to promote Quesada for a legitimate, non-discriminatory reason. See Guz, supra, 24 Cal.4th at 355-56.

Quesada’s reliance on pretext cases is also misplaced. In such cases, the plaintiff may attack the employer's proffered reasons as pretexts for discrimination or offer any other evidence of discriminatory motive. Id. at 356. The plaintiff must show that: (1) the employee belongs to a racial minority; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. Clark, supra, 6 Cal.App.4th at 662–63. These pretext requirements do not apply here. Quesada is not claiming discrimination as a racial minority, and he is not claiming that his position remained open and LASD continued to seek other applicants.

Nor do the FEHA retaliation cases relied on by the County apply. In such cases, a plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action. Iwekaogwu, supra, 75 Cal.App.4th at 814. Only after the plaintiff proves this nexus does the analysis mirror the three-stage burden-shifting test of discrimination cases. Chen, supra, 96 Cal.App.4th at 949. Suspicion and speculative testimony as to why the plaintiff thinks the adverse act occurred are insufficient. County District Attorney, supra, 55 Cal.App.4th at 201-02.

There is no retaliation alleged in this case. Quesada simply contends that LASD considered an impermissible matter – the time-barred 2015 investigation -- in denying his promotion. Whether it has a causal nexus to the failure to promote Quesada is not dispositive of this question.

Additionally, the policies behind burden shifting have no application here. The McDonnell Douglas burden-shifting was intended to implement the purpose of Title VII to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. 411 U.S. at 800. California has adopted the three-stage burden shifting for FEHA disparate treatment discrimination claims because evidence of intentional discrimination is rare, and they must be proved indirectly. Guz, supra, 24 Cal.4^th at 354. The three-stage test creates successful steps of increasingly narrow focus. The first stage serves the purpose of eliminating meritless claims by requiring a prima facie showing, after which the employer must address the prima facie case at the second stage, and the plaintiff then has an opportunity to argue pretext at the third stage, with the ultimate burden remaining on the plaintiff. Id. at 354-56. None of these purposes apply here. Quesada does not seek to show discrimination and there is no need to shift burdens to narrow the focus of his claim.

The court believes that the appropriate burden is simply that Quesada must prove that the Department considered an impermissible factor – the time-barred 2015 investigation – when it considered him for promotion. Quesada bears the burden of proof during the trial without burden shifting. See Sargent Fletcher, Inc. v. Able Corporation, (2003) 110 Cal.App.4th 1658, 1667. Opp. at 5. He is not required to show a causal link between this consideration and the failure to promote him; mere consideration of the time-barred investigation suffices. Any cause and effect from this improper consideration would affect the remedy but not Quesada’s claim.

The court does agree with one feature of the burden-shifting test for disparate treatment FEHA claims. For such claims, there will seldom be eyewitness testimony of the employer’s mental processes or other direct evidence of discrimination. Heard, supra, 44 Cal.App.4th at 1748-49. This is equally or more true for LASD promotions where the Commanders Panel meets without a recording and pursuant to confidentiality agreements which prevent members from repeating what was said during the meeting. Hence, it is virtually impossible for a deputy to present direct evidence that improper information was considered during a promotion meeting. Quesada may demonstrate via indirect or circumstantial evidence that his time-barred investigation was actually considered by the Commanders Panel.

The PAB is tasked by the Department to assist with and oversee examinations for positions and promotions within the Department. Chemnitzer Decl., ¶7. The process for the 2019 Sergeant Examination, patrol track, consisted of eligible candidates participating in an examination. Chemnitzer Decl., ¶9. Thereafter, the examination was scored and tabulated by the Test Development Unit and candidates were placed in Bands based on the examination results. Chemnitzer Decl., ¶9.

The Department follows County HR Policy, Procedures, and Guidelines 150 relating to Eligible Lists. Chemnitzer Decl., ¶10, Ex. B. An Eligible List was promulgated, which was publicly available and could be reviewed by examination candidates. Chemnitzer Decl., ¶10. Individuals in lower Bands -- including Bands 2, 3, and 4 -- can be and are promoted based on the candidate's performance record, suitability and readiness for promotion, other merit-based criteria, and the availability of openings within a particular Division. Chemnitzer Decl., ¶12. If the number of remaining candidates in Band 1 falls below five, appointments or promotions can be made from a lower Band in accordance with CSR 11.01.E. Chemnitzer Decl., ¶13. In such circumstances, a candidate in the next Band can be selected over the remaining four candidates in Band 1 for promotion to a supervisory position such as sergeant. Chemnitzer Decl., ¶13.

After an Eligible List is promulgated, a Commanders Panel consisting of chiefs or commanders meets to discuss promotions. Chemnitzer Decl., ¶11. Discussions at these panel meetings relate to all candidates who are reachable on the Eligible List, and this was true of the 2019 Sergeant Exam. Chemnitzer Decl., ¶11.

No contemporaneous notes or emails are permitted in panel meetings and each participant at a panel meeting must sign a confidentiality agreement. Chemnitzer Decl., ¶14. This confidentiality is essential for the Department to be provided with candid assessments about individual candidates, their strengths and weaknesses, their suitability for promotion, whether a particular candidate would be a good fit for a particular and available assignment within the Department, and other considerations of merit. Chemnitzer Decl., ¶14.

The participants in the panel meeting have access to the profile sheets completed by the candidates. Chemnitzer Decl., ¶15. However, the profile sheets are not distributed at the panel meetings. Chemnitzer Decl., ¶15. No other documentation is permitted or can be referenced or used by participants at the panel meeting. Chemnitzer Decl., ¶15.

PAB personnel are always present at the panel meeting. Chemnitzer Decl., ¶16. The PAB employee ensures that everything discussed is appropriate and that correct procedures are followed. Chemnitzer Decl., ¶16. If a panel participant were to suggest that a particular candidate should be punished or not promoted for invalid or inappropriate reasons, PAB personnel would intervene. Chemnitzer Decl., ¶16.

A sergeant is a first-line supervisor and must have a sufficient knowledge of the laws and critical decision-making skills. Burcher Decl., ¶12. In making promotion decisions, the Department looks at the experience of each candidate. Burcher Decl., ¶12. An examination score does not solely determine who is promoted. Burcher Decl., ¶10. 10. Even if a deputy does well in an examination, this does not automatically lead to promotion. Burcher Decl., ¶10. A deputy could be a very good test taker and not have the capabilities and skill set needed to be a sergeant. Burcher Decl., ¶10.

Candidates in an examination are not simply competing against other candidates in Band 1 or within his or her unit. Burcher Decl., ¶10. They are compared with all of the candidates in the different Bands as long as the candidates are reachable. Burcher Decl., ¶10. Factors that are considered include the employee’s most recent Performance Evaluations, the employee's PRMS, and personal observations by supervisors of the employee's performance Burcher Decl., ¶11. Opp. at 11.

There have been a number of occasions where the Department did not promote a person who was in Band 1 on a sergeant promotional list. Chemnitzer Decl., ¶18, Ex. C-H.

Quesada argues that four incidents following the inactivation of the 2015 disciplinary charges indicates punitive and retributive action against him: (1) the Department failed to notify him of a promotional examination while he was on leave; (2) he was not promoted after the 2017 Sergeant Exam when, of the 394 deputies who applied, he was one of only 93 deputies in Bands 1 and 2, and his score was only 1.62% from placement in Band 1; (3) he was reassigned to Fleet and Communications after the 2015 investigation was inactivated; and (4) the Department failed to permit him to bid for a vehicle when he was on loan to Fleet and Communications (a grievance which Quesada won). These incidents all create an inference that the Department continued to hold the inactivated disciplinary charge against Quesada. Pet. Op. Br. at 16.

These incidents all occurred to Quesada after he was reinstated to his position following the inactivation of the 2015 investigation. He argues that they establish a pattern of taking punitive actions, and at least the reassignment to Fleet and Communications proves that the Department continued to take adverse actions against Quesada in violation of POBRA. This evidence is plainly sufficient to establish a nexus between the County contends is missing. Reply at 9.

As the County responds, Quesada refers to a series of disconnected events. See Opp. at 15.

Quesada was not informed of the 2015 promotional examination, depriving him of the opportunity to take the exam. Quesada Decl., ¶14. On June 15, 2017, he submitted a grievance for LASD’s failure to notify him of the 2015 Sergeant Exam. Quesada Decl., ¶14, Ex. D. He argued that although he was on administrative leave at the time because of the 2015 investigation, Department policy still required that he be told about the Sergeant Exam. Quesada Decl., ¶14. On November 3, 2017, Captain Nelson informed Quesada that his grievance was denied. Quesada Decl., ¶14, Ex. D.

This incident does not aid Quesada’s position. Quesada fails to provide any details, such as the Department policy, the identity of the person who should have notified him, any supervisors who may have deliberately refused to notify him, or any connection to the decision not to promote him.

Quesada states that, upon his return to TSB after the inactivation of the 2015 investigation, both his captain and lieutenant were happy to have him back. Quesada Decl., ¶15. Then he was reassigned to Fleet and Communications. Captain Schow told Quesada that the transfer decision was “above his paygrade” and came down from the Hall of Justice. Id. Upon his arrival at Fleet and Communications, Captain Vera hinted that Quesada had been reassigned for punitive purposes: “Look, I don’t know what you did. I don’t care. I’ve been in trouble.” Id., ¶16.

The County’s discovery responses state that Quesada was assigned to Fleet and Communications because it “was an appropriate assignment for a person who had been released [sic] of duty and not cleared to interact with the public.” Ross Decl., ¶3, Ex. A, p. 3. However, Quesada should have been cleared of the allegations and restored to his prior position once the disciplinary charges were inactivated. The fact that the Department did not clear Quesada to interact with the public because of the inactivated charges shows that it was using them when making personnel decisions. It stands to reason that the Department also considered the inactivated charges when denying Quesada promotion. Pet. Op. Br. at 15.

The County responds that Quesada’s loan to Fleet and Communications was not punitive. Quesada’s reassignment to Fleet and Communications lasted three weeks (he was on authorized leave for the remaining six-month period of his reassignment) and it was appropriate. Mouat Decl., ¶¶ 5-9. A transfer to a position that does not require a firearm or being in uniform is common practice for deputies who return from extended leave. Mouat Decl., ¶8. LASD will also arrange for retraining in firearms, use of force, and other important matters. Mouat Decl., ¶8. These are not punitive measures; they are meant to ensure that the deputy can resume their duties. Mouat Decl., ¶8. Quesada never voiced objection to his temporary reassignment to Fleet and Communications or filed a grievance or complaint with TSB or LASD about it. Mouat Decl., ¶9.^{^[4]} A party cannot meet his burden of proof by relying on "equivocal evidence" (Jane D. v. Ordinary Mutual, (1995) 32 Cal.App. 4th 643, 654) or "‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities" [citation]. Lyons v. Security Pacific National Bank, (1995) 40 Cal.App.4th 1001, 1014. Opp. at 5.

Quesada replies that the County fails to dispute the comments made by Captains Schow and Vera. The Department’s admission that Quesada was reassigned to Fleet and Communications because it was appropriate for a person who had been released from duty and not cleared to interact with the public was punitive. Captain Burcher admitted that the failure to clear someone to interact with the public could be punitive: “If there was a prohibition in place, I would think it will be punitive.” Ross Decl., ¶4; Ex. B, p. 36. Reply at 4, 7-8. Quesada adds that Lieutenant Mouat only states that “it is sometimes standard procedure for a Deputy, who has returned from an extended authorized leave, to be temporarily placed in an assignment with responsibilities that do not require possession of a firearm or being in uniform.” Mouat Decl., ¶8. Lieutenant Mouat does not say why Quesada was assigned to Fleet and Communications. Statements from supervisors and admissions in discovery that a specific personnel action was taken because of the inactivated investigation is not equivocal or imaginary. These facts directly establish, through a months-long pattern, the Department’s continued reliance upon the inactivated charges when making personnel decisions regarding Quesada. Reply at 8-10.

The court does not agree. It is true that Lieutenant Mouat stated only that it is common to transfer a deputy returning from an extended leave to a position that does not require a firearm or being in uniform without stating that was why Quesada was reassigned. Mouat Decl., ¶8. So, there is no specific evidence why Quesada was reassigned. But it is at least common to do so for a deputy in his position. This reassignment is not due to the inactivation of charges, but rather the extended leave that occurred when the charges were investigated and pending.

The comments of Captains Schow and Vera do not aid Quesada’s position that the reassignment was punitive. Captain Schow’s “above his paygrade” merely indicates that he was not involved in the reassignment. Captain Vera’s comment -- “Look, I don’t know what you did. I don’t care. I’ve been in trouble.” Id., ¶16 – clearly shows Vera’s assumption that Quesada was punitively reassigned without any knowledge of the fact. Neither is a comment by a supervisor who knew the reasons for reassignment.

It is, of course, possible that Quesada was reassigned for punitive reasons, which would be a POBRA violation. But the court cannot rely on possibilities. Additionally, Quesada fails to fill in the details about when he was reassigned to TSB and the circumstances surrounding that reassignment.

While at Fleet and Communications, Quesada attempted to bid for a TSB car during a division rebid because he was only on loan to Fleet and Communications, and he was TSB’s second-most senior member. Quesada Decl., ¶17. He was denied this opportunity and he submitted a grievance on May 30, 2017. Quesada Decl., ¶17, Ex. E. On November 3, 2017, Captain Nelson informed Quesada that his grievance was granted, contingent on Quesada’s return to TSB. Quesada Decl., ¶17, Ex. E.

The County correctly argues (Opp. at 6) that Quesada’s bid for a car has nothing to do with the denial of his promotion. His grievance on this issue was granted, so he cannot claim an institutional prejudice against him.

Quesada fails to identify any link between the 2015-2017 events and the Department’s decision not to promote him after the 2019 Sergeant Exam. There is no evidence that the Department’s failure to notify Quesada of the 2015 exam was anything other than inadvertent or that its initial denial of his bid for a car was anything more than a mistake. The reassignment could have been punitive, but there is no evidence that it was. Quesada does not even claim that the supervisors involved in these incidents had anything to do with the promotional process in 2019. Nor does he prove that there was a managerial prejudice against him that was implemented by several different supervisors. See Los Angeles County District Attorney v. Civil Service Commission (Walls) (1997) 55 Cal.App.4th 187, 201 (failure to establish a nexus between an individual’s racial comments and the complainant’s transfer).

In 2019, Captain Burcher had a telephone conversation with Commander Ewell who asked him to provide him with his top five names of deputies assigned to TSB who he would recommend for promotion to sergeant. Burcher Decl., ¶17. In response to Commander Ewell’s request, Captain Burcher talked to Lt. Mouat and Sergeant Eric Kianpour (“Kianpour”). Ross Decl., ¶4, Ex. B, pp. 41-44. Neither had seen Quesada in a while and his performance evaluations showed that he had been on extended leave in both 2018 and 2019. Id. at 40. The existence of a medical leave can be impactful only as it shows that information about performance is not available. Id. at 40-41. Quesada’s extended leave of absence impeded Captain Burcher’s ability to observe him in a working capacity and interact with him. Burcher Decl., ¶15. Lt. Mouat told Captain Burcher about the existence of the 2015 investigation, the nature of the allegations, that Quesada was supposed to be terminated, and that the charges had been inactivated. Id. at 42-43. Captain Burcher was not interested in the matter as it had no relevance to his mission. Id. at 42.

In reviewing Quesada’s personnel record for Commander Ewell, Captain Burcher noted that Quesada’s only assignment for 20 years had been at TSB, except for the short reassignment to Fleet and Communications. Burcher Decl., ¶12. The number and variety of assignments worked by a deputy are considered when deciding whether the deputy is ready to work as a sergeant/supervisor at a LASD station, a custodial facility, in the court system, or other assignments. Burcher Decl., ¶12).

Based on the information he had and the recommendations of Lt. Mouat and Sergeant Kianpour, Captain Burcher concluded that Quesada did not have the necessary leadership skills and qualities essential for the position. Burcher Decl., ¶¶ 12, 15, 19. Commander Burcher concluded that Quesada was not “a producer” and there was nothing striking about him. Burcher Decl., ¶19. Captain Burcher’s candid assessment was that Quesada was a mediocre employee who made few arrests, did not issue many citations, and did not have the best work ethic. Burcher Decl., ¶20. Quesada was not in Captain Burcher’s top five list and he did not recommend Quesada for promotion. Burcher Decl., ¶14.

Quesada acknowledges that there is no direct evidence that the inactivated disciplinary charge was considered when evaluating his promotion, and no evidence that any of the members of the Commanders’ Panel reviewed his personnel file or his PRMS. However, members of Quesada’s command staff knew about the charges against him and considered them relevant in assessing Quesada’s qualifications for promotion. Lt. Mouat gave Captain Burcher information about the inactivated investigation believing that it was relevant. This is direct evidence that members of the Department and the chain of command considered the inactivated charges against Quesada to be relevant to his promotion. Pet. Op. Br. at 13-14; Reply at 4.

Captain Burcher’s testimony is compelling evidence to the contrary. At the very time Quesada says he should have been promoted, Captain Burcher concluded that he was not qualified. He was aware that there Quesada had an inactivated investigation in 2016, but he disregarded it. Quesada does not dispute that Captain Burcher handled Commander Ewell’s request appropriately, that he did not consider the inactivated investigation, and that Captain Burcher’s opinion was that Quesada was not qualified for promotion. Quesada merely faults Lt. Mouat for informing Captain Burcher about the inactivated charges. Yet, Lt. Mouat cannot be faulted for giving his superior all information, both that which was relevant and that which must not be considered. It was up to Captain Burcher to reject the inactivated charges as irrelevant, which he did.

In 2019, Quesada was one of only 13 deputies to be placed in Band 1 of the 2019 Eligibility List. His score on the Sergeant Exam placed him in the top tier – indeed, the top 3% of all applicants. Of 484 personnel who took the 2019 Sergeant Exam, only 13 were placed in Band 1. Ross Decl., ¶6, Ex. D, p. 4. Despite the promotion of 239 other deputies from the Eligibility List, Quesada was not promoted. He was the only on of the 13 deputies in Band 1 who was not promoted. Id., p. 5. Some of the promoted deputies were in Band 3. Id., p. 5. Less qualified applicants got promoted to sergeant from Band 3 while Quesada was the sole remaining applicant in Band 1. Quesada contends that this fact strongly supports the conclusion that Quesada was not promoted for reasons other than merit. Pet. Op. Br. at 13.

Quesada submitted a grievance concerning the Department’s failure to promote him. In March 2020, Quesada’s grievance was heard and denied by Chief Hellmold. According to Chief Hellmold, Quesada stated that he was on an Eligible List and he wanted to be promoted. Hellmold Decl., ¶7. Quesada speculated about why he had not been promoted. Hellmold Decl., ¶7. Chief Hellmold listened carefully to what Quesada had to say. Hellmold Decl., ¶8. However, Quesada did not articulate sufficient facts which would lead to his promotion. Hellmold Decl., ¶8. Based on his review of all the paperwork, including Quesada’s written submissions, Chief Hellmold denied the grievance. Hellmold Decl., ¶9.

Quesada argues that Chief Hellmold’s statements at the telephonic grievance hearing support the conclusion that he was reviewing Quesada’s PRMS and believed that Quesada had disciplinary charges that would warrant his failure to promote. When asked what else Quesada could do (since he was already in Band 1), Chief Hellmold responded that he should “serve with integrity, abide by the Department’s core values, and follow all state laws.” Sanchez Decl., ¶6, Ex. A; Quesada Decl., ¶20. When Quesada asserted that he had not had any discipline within the past five years, Chief Hellmold responded: “That’s not what I see.” Quesada Decl., ¶21.

Quesada draws an inference from Chief Hellmold’s statement that he (Quesada) needed to follow all state laws implies that Chief Hellmold believed the Department properly considered the inactivated charges in denying Quesada a promotion. Pet. Op. Br. at 15-16; Reply at 4, 8. This inference is not fairly drawn. Chief Hellmold was simply informing a disappointed deputy that he needed to follow all laws and Departmental core values to get promoted. This might be something he would tell any deputy in Band 1 or 2 who did not get promoted.

The statement “That’s not what I see” indicates that Chief Hellmold was looking at the PRMS Report and nothing in Quesada’s PRMS or personnel file other than the inactivated charge indicated that any discipline in the prior five years.^{^[5]} It is fair to conclude that Chief Hellmond was looking at the PRMS or something similar when he stated: “That’s not what I see.” Moreover, the PRMS does not show any discipline within five years of the March 2020 grievance hearing, only showing the 2016 inactivated investigation. Quesada Decl., ¶24, Ex. H. It does show a September 2014 four-day suspension for general behavior, but that was five and a half years before the March 2020 grievance hearing.

Chief Hellmold was mistaken, but that does not mean that he considered the inactivated discipline. The evidence is unrebutted that Chief Hellmold was aware that Quesada had been investigated for serious allegations of misconduct but that the proposed disciplinary action was inactivated. Hellmold Decl., ¶16. He also was aware that Quesada successfully had exercised his rights under POBRA to challenge the proposed disciplinary action. Hellmold Decl., ¶16. Chief Hellmold expressly stated that he did not deny the grievance because of the 2015 investigation or Quesada’s exercise of his POBRA rights. Hellmold Decl., ¶17. Chief Hellmold also did not take, nor did he countenance, any kind of punitive action against Quesada. Hellmold Decl., ¶17. His decision in denying the grievance was based upon the qualities required and the experience and training a candidate needs for promotion to sergeant. Hellmold Decl., ¶18.^{^[6]}

Quesada argues that the Department failed to promote him to sergeant because of the inactivated disciplinary charges against him -- charges that were never proven and that the Department acknowledged fell outside of the one-year statute of limitations of section 3304(d)(1). Quesada analogizes to FEHA failure to promote cases in which the fact-finder considers the ranking of the employee and whether the employee “could reasonably expect promotion.” Fair Employment Practice Com., supra, 117 Cal.App.3d at 333. Pet. Op. Br. at 13.

Quesada admits that there might not be “smoking gun” evidence from the Commanders Panel and argues that there is substantial circumstantial evidence that the Panel improperly relied on the inactivated charge, including consideration by other members in Quesada’s chain of command who clearly believed that the inactivated charge was relevant in assessing Quesada’s candidacy for promotion. The evidence therefore establishes that the Department denied Quesada a promotion because it was relying upon disciplinary charges that were outside of the statute of limitations. Pet. Op. Br. at 16-17; Reply at 7.

Even if the evidence is not sufficient to establish that Quesada was denied a promotion because of the inactivated charges, it is sufficient to establish that the inactivated charges were considered, including the statements made by Lt. Mouat, the statements by Chief Hellmold, and the punitive action taken against Quesada upon his return to active duty when he was prohibited from interacting with the public. Together, these show a clear punitive attitude toward Quesada that directly related to the promotional decision. If, arguendo, the court believes that the Department still would have denied Quesada promotion absent the inactivated charge, it should award injunctive relief removing the inactivated charges from the PRMS Report and provide Quesada with an award of attorneys’ fees. Pet. Op. Br. at 17-18.

Quesada argues notes that, if no member of the Commander’s Panel reviewed his inactivated disciplinary charge, they all had access to his records. It stands to reason that members of the Panel would have reviewed the personnel files of the deputies up for promotion, and the inactivated charges were listed on Quesada’s PRMS Report. See Quesada Decl., ¶24, Ex. H.^{^[7]} These were references that could easily and readily lead any commanding officer to understand that Quesada had been accused of significant misconduct that would have resulted in termination if it had been within the one-year limitations statute. Pet. Op. Br. at 14.

Quesada has not met his burden. As the County argues (Opp. at 14), there is little question that in any employer evaluating candidates for promotion must use its best judgment and exercise discretion. Management has broad discretion on who to promote and why. Los Angeles County Department of Parks & Recreation v. Civil Service Commission, (1992) 8 Cal.App.4th 273. “The employer does not have the burden to prove by objective evidence that the person promoted was more qualified than the plaintiff. The employer is free to exercise discretion to choose among equally qualified candidates provided the decision is not based on unlawful criteria.” Id. at 281. Similarly, “an employer may hire, fire or, in this case, choose not to promote an employee for good reason, bad reason, reason based on erroneous facts, or for no reason at all, as long as its actions are not based on discriminatory purposes.” Dudley v. Wal-Mart Stores (1996) 931 F. Supp. 773, 801-02; accord, Nix v. WLCY Radio/Rahall Communications (1984, 11th Cir.) 738 F.2d 1181, 1187.

Quesada believed that his promotion was “inevitable” since he performed well on the written Sergeant Exam. Yet, he was one candidate in a competitive civil service examination. The fact that other candidates were selected for promotion does not establish or create an inference of illegal or punitive action. Compliance with Civil Service examination rules is mandatory. Hastings v. Department of Corrections, (2003) 110 Cal.App.4th 963, 972-73. Indeed, “‘the cornerstone of the constitutional merit principle is [the] competitive examination process that determines merit, effectiveness and fitness for appointment and promotion. [Citations.]’’”. Lund v. California State Employees Association, (1990) 222 Cal.App.3d 174, 186. Opp. at 14.

The 2019 Sergeant Exam had hundreds of candidates. Promotion decisions are not simply based on examination results. The candidates’ work experience, breadth of work experience, capabilities, and skill set, together with the suitability and availability for a particular work assignment, are all legitimate and valid factors that can and should be considered by any employer, including Respondents. Indeed, employers must be given wide latitude to make independent, good-faith personnel decisions, and the decision to promote an employee requires evaluation of innumerable subjective considerations. Gonzales v. MetPath, Inc., (1989) 214 Cal.App.3d 422, 428.

As stated ante, Captain Burcher was asked in 2019 to recommend his top five candidates for sergeant and he did not believe that Quesada had demonstrated the necessary leadership skills and qualities essential for the position of a sergeant. Burcher Decl., ¶12. Captain Burcher was aware that there Quesada had an inactivated investigation in 2016, but the inactivated investigation did not interest Captain Burcher, who knew that it should not be considered in the promotional process. Burcher Decl., ¶21. Captain Burcher concluded that Quesada was not “a producer” and there was nothing striking about him. Burcher Decl., ¶19. Captain Burcher’s candid assessment was that Quesada was a mediocre employee who made few arrests, did not issue many citations, and did not have the best work ethic. Burcher Decl., ¶20. Captain Burcher did not recommend Quesada for promotion. Burcher Decl., ¶14.

Captain Burcher’s testimony is strong evidence that Quesada simply was not qualified for promotion. Of course, Captain Burcher was not on the Commanders Panel, but his testimony and declaration show that there was no institutional prejudice against Quesada for his inactivated investigation. This is supported by the fact that, other than Chief Hellmold at his 2020 grievance hearing (see post), Quesada has never had a conversation with anyone who told him that he was not promoted was because of the 2015 investigation. Ex. A, pp. 87-88. Opp. at 8.

There is additional evidence that Quesada’s promotion to sergeant was unwarranted. First, Quesada received a “Very Good” performance evaluation for August 31, 2019 to August 30, 2020 but he received only a “Competent” evaluation for August 31, 2016 to August 30, 2017. Mouat Decl., ¶6, Ex. B. Quesada was on an extended leave in both 2018 and 2019 and his superiors did not have an opportunity to evaluate him. Ross Decl., ¶4, Ex. B, pp. 41-44. A Competent evaluation followed by a Very Good evaluation two years later is not highly promotable.

Second, Quesada’s extended leaves in 2018 and 2019 were authorized, but they did not give supervisors an opportunity to evaluate his training and leadership skills. The Department also considers a candidate’s background, breath of experience, training, and performance record. Hellmold Decl., ¶15; Burcher Decl., ¶12. A sergeant is a first-line supervisor for the Department. Burcher Decl., ¶12. Experience is a relevant factor because a sergeant/supervisor must have a sufficient knowledge base, including a knowledge of laws, and critical decision-making skills. Burcher Decl., ¶12.

Separate from his qualifications, there is substantial evidence that the Commanders Panel did not consider Quesada’s inactivated investigation. Discussions at these panel meetings relate to all candidates who are reachable on the Eligible List, and this was true of the 2019 Sergeant Exam. Chemnitzer Decl., ¶11. While the participants in the panel meeting have access to the profile sheets completed by the candidates, the profile sheets are not distributed at the panel meetings. Chemnitzer Decl., ¶15. No other documentation is permitted or can be referenced or used by participants at the panel meeting. Chemnitzer Decl., ¶15. PAB personnel are always present at the panel meeting. Chemnitzer Decl., ¶16. The PAB employee ensures that everything discussed is appropriate and that correct procedures are followed. Chemnitzer Decl., ¶16. If a panel participant were to suggest that a particular candidate should be punished or not promoted for invalid or inappropriate reasons, PAB personnel would intervene. Chemnitzer Decl., ¶16.

This admonition is an express statement that no denial of promotion can be based on an inactivated investigation. The law presumes that an official duty has been regularly performed (Evid. Code §664), and there is no reason to believe that the chiefs and commanders on the Commanders Panel did not heed this admonition. This is particularly true because PAB personnel were there to ensure that they did so.

Quesada contends that PRMS admonition actually demonstrates that the Department can use inactivated disciplinary charges when making personnel decisions. If an inactivated charge cannot be considered, it should be removed from the PRMS just as unfounded and exonerated charges are. It makes no sense to leave those allegations in the PRMS unless they can be considered in making promotional decisions. Additionally, the PRMS does not explain what is a promotional decision other than on merit. A commanding officer who reviews the PRMS and sees that unfounded and exonerated charges are removed but inactivated charges are not, may conclude that the denial of promotion based on an inactivated charge is a denial based on merit. In other words, the commanding officer may consider an inactivated charge to the same extent as a founded charge of misconduct. Pet. Op. Br. at 14-15.

This speculation is unwarranted. The PRMS admonition need not explain what it means to deny a promotion on grounds other than merit as set forth in section 3304(b) because it plainly proscribes denial of promotion for a time-barred investigation. While Quesada argues that time-barred charges should be removed like unfounded charges, there are legitimate reasons for time-barred charges to remain. The existence of a time-barred charge may lead the Panel to inquire whether the deputy was on administrative leave for any period, which is a legitimate inquiry. Additionally, it is worth noting that discipline more than five years old is included in the PRMS – Quesada had two old suspensions in 1999 and 2012 (Quesada Decl., ¶24, Ex. H), and yet he does not complain that they should be removed. The Department believes that it is better to provide a complete history in the PRMS and rely on the Panel to know what portions are relevant. This is a legitimate management position.

Quesada argues that he County never presents any evidence that inactivated disciplinary charges cannot be considered while making promotional decisions. Despite providing assessments of Quesada’s alleged weaknesses, there is no evidence of what was actually considered by the Commanders Panel when assessing Quesada’s promotion. None of the Panel members provided a declaration. There is no evidence from any individual with decision-making authority justifying or explaining the failure to promote Quesada. There is no declaration from any PAB employee that the Commanders’ Panel did not attempt to discuss the inactivated disciplinary charge against Quesada. There is simply no evidence even hinting why the Panel did not recommend Quesada for promotion. Reply at 4-5, 10.

Quesada raised this issue, yet the County’s opposition never argued that it would be improper to consider an inactivated disciplinary charge when assessing a candidate for promotion. No declarant states that it would be improper, and the County has provided no documentary evidence barring the consideration of inactivated charges. The inclusion on the PRMS without a corresponding admonition or explanation suggests that those inactivated charges can be considered. Reply at 11-12.

Quesada notes that Captain Burcher’s “candid assessment was that [Quesada] was generally a mediocre employee who made few arrests, did not issue many citations, and did not have the best work ethic.” Burcher Decl., ¶20. Chief Hellmold states that his denial of Quesada’s grievance “was based upon the qualities required and was based upon the experience and training that a candidate would need to possess for the promotion to the supervisory position of Sergeant.” Hellmold Decl., ¶18. Neither of these supervisors took part in the Commanders’ Panel. Therefore, their evidence cannot provide evidence that anyone on the Commanders Panel actually considered the factors on which they rely. Reply at 10-11.

The short answer is that no member of the Commanders Panel can submit a declaration about what was discussed at the Panel meeting. The members sign confidentiality agreements, the meetings are not recorded, and the members may not take contemporaneous notes or emails. Chemnitzer Decl., ¶14. This confidentiality is essential for the Department to be provided with candid assessments about individual candidates, their strengths and weaknesses, their suitability for promotion, whether a particular candidate would be a good fit for a particular and available assignment within the Department, and other considerations of merit. Chemnitzer Decl., ¶14. Thus, the Department could not present evidence from any Panel member or PAB employee about what discussion about Quesada occurred during the meeting.^{^[8]}

Additionally, Quesada is wrong that there is no documentary evidence that the inactivated disciplinary history cannot be considered in the Panel meeting. Quesada’s PRMS expressly states that it may not be considered.

This admonition is corroborated by the evidence from Captain Burcher and Chief Hellmold. Captain Burcher testified that the inactivated investigation was irrelevant and he was not interested in it. Ex. B, p. 43. He treated Quesada’s inactivated investigation as if it was not there. Ex. B, p. 30. Chief Hellmold also was aware that Quesada successfully had exercised his rights under POBRA to challenge the proposed disciplinary action. Hellmold Decl., ¶16. Chief Hellmold expressly stated that he did not deny the grievance because of this previous investigation or exercised of POBRA rights. Hellmold Decl., ¶17. While neither Captain Burcher nor Chief Hellmold were Panel members, their evidence shows that the Department management understands that inactivated investigations cannot be used in the promotion decision.

Quesada cannot prevail simply by relying on mere suspicion that the Department’s decision on his promotion was motivated by animus based on the deactivated investigation. The Department complied with Policies, Procedures and Guidelines Number 150 in identifying candidates for the promotional selection process, and CSR 11.01.E. in not promoting Quesada. Hellmold Decl., ¶10. The fact that Quesada was in Band 1 did not automatically mean that he would be promoted; the Department was not required to promote all individuals in Band 1 before promoting individuals in lower Bands. Hellmold Decl., ¶11. Therefore, Quesada has not met his burden of showing unlawful punitive action.^{^[9]}^{^[10]}

The Petition is denied. The County’s attorney is ordered to prepare a proposed judgment, serve it on Petitioner Quesada’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for March 2, 2023 at 9:30 a.m.

^{^[1]} Respondents request judicial notice of the Los Angeles County Civil Service Rules (“CSR”), including but not limited to Rule 11.01. Opp. RJN. The request is granted. Evid. Code §452(b).

^{^[2]} All further statutory references are to the Government Code unless otherwise stated.

^{^[3]} The court has ruled on the parties’ written evidentiary objections. The clerk is directed to scan and electronically file the court’s rulings.

^{^[4]} The County argues that the reassignment to Fleet and Communications should not be considered because any grievance concerning his reassignment has been waived and/or is barred by the statute of limitations. See CCP §338(a). Opp. at 5. Quesada is not making a claim based on his reassignment to Fleet and Communications; he is using it as evidence.

^{^[5]} Captain Burcher testified that discipline older than five years is not considered in the promotional process. Ross Decl., Ex. B, p. 16. Pet. Op. Br. at 16, n. 1.

^{^[6]} The parties agree that this is not litigation revolving around the denial of a grievance. That is, Quesada is not contending that Chief Hellfond erred in not promoting him.

^{^[7]} The Department has admitted that the only document that supports its assertion that Quesada was not promoted for reasons of merit is his personnel record (Ross Decl., ¶7, Ex. E, p. 3) which includes the inactivated disciplinary charge.

^{^[8]} Quesada has not challenged this position by seeking to compel any discovery on the issue.

^{^[9]} The County argues that Quesada’s dishonorable and duplicitous behavior in deliberately failing a promotional examination, establishes that he comes before this court with unclean hands, which supports the denial of the remedies he seeks. Unilogic, Inc. v. Burroughs Corporation, (1992) 10 Cal.App.4th 612, 620-21. Opp. at 4. Quesada’s reasons for deliberately failing a promotional examination are not clear. In any event, there is nothing dishonest about doing so, particularly since the action bears no relation to job performance. Further, the Department has provided no evidence that deliberately failing an examination violates any Departmental policy. Reply at 13-14.

[10] The court need not consider Quesada’s argument for a section 3309.5(e) civil penalty and attorneys’ fees. Pet. Op. Br. at 18.

^{^[10]} The court need not consider Quesada’s argument for a section 3309.5(e) civil penalty and attorneys’ fees. Pet. Op. Br. at 18.