Judge Mary H. Strobel, Case 21STCP01168 2022-09-08 Tentative Ruling

Petitioner Francisco Molleda (“Petitioner” or “Molleda”) petitions for a writ of administrative mandate directing Respondent Lynwood Unified School District (“Respondent” or “District”) to set aside a final administrative decision terminating Petitioner from his position as Chief of Security for District.

Petitioner started working for District in or about 1993, when he was 21 years old and was hired as a security officer. (AR 1025, AR 491-492.)[1] Eventually, Petitioner promoted to Chief of Security, a supervisory position. (AR 1026; AR 492-93.) District’s Director of Human Resources, Carlos Zaragoza, testified that the Chief of Security manages the entire safety procedures on District’s campuses and is responsible for the safety of students on campus and on their way home from school. (AR 49-50; see also AR 930-931 [job description].) The Chief of Security supervises approximately 50 employees, including the assistant chief, security supervisors II, and the campus safety officers. (AR 50-51.) The Chief of Security reports to the Chief Business Officer, Greg Fromm. (AR 50.)

December 14, 2018, Meeting with Human Resources Director and Assistant Superintendent

On December 14, 2018, Petitioner attended a meeting with Nancy Hipolito, Assistant Superintendent of Human Resources, and Carlos Zaragoza, Director of Human Resources. The meeting was called to discuss Petitioner’s responsibilities as Chief of Security and to “provide some additional directives.” (AR 159, 854, 883.) According to a December 14, 2018, email sent by Hipolito and Hipolito’s subsequent testimony, there were concerns about Petitioner’s visibility at work, his work hours, his lunch times, and his failure to respond to incidents. (AR 160, 883.) In the December 14 email, Hipolito directed Petitioner to work from 7:30 am to 4:30 pm, if he takes a one-hour lunch; check in with his supervisor and “advise him if you are out, arriving late or leaving early”; and take other steps to ensure he is a “visible presence” on security matters. (AR 883.)

On January 23, 2020, Petitioner was served with a Notice of Intent to Discipline recommending termination (“Notice”). (AR 852-929.) The Charges may be summarized as follows:

(1) Petitioner took time off work without prior authorization from his supervisor Fromm on Friday, June 21, 2019, and Monday, June 24, 2019. Charge 1 also alleged that, after discussing the matter with Fromm, Petitioner texted Assistant Chief of Security Garcia “if you run into Greg [Fromm] let him know that I may have told you about being off and you may have just forgotten…. If not, you will be known as the lone ranger.” (Charge 1)

(2) On or about July 1, 2019, Petitioner’s supervisor Gregg Fromm directed Petitioner to relocate his office to a space in the Superintendent’s office by July 8, 2019, and Petitioner willfully failed to relocate his office as directed. (Charge 2)

(3) On July 8, 2019, when Petitioner was placed on administrative leave, Petitioner tampered with his District-issued cell phone before he turned in his District property. (Charge 3)

(4) Throughout the 2018-2019 school year, Petitioner used his District-issued cell phone to ask Security Officer Martin Chavez, a subordinate employee, to purchase male enhancement drugs for him. Petitioner repeatedly purchased the drugs from Chavez. The male enhancement drugs were purchased in Mexico and have not been approved by the Food and Drug Administration for sale in the United States. Charge 4 also states that Petitioner’s “repeated use of his District issued cell phone for personal purposes violates District’s policies on technology use while on duty.” Text messages between Petitioner and Chavez were attached to the notice as Exhibit 8 and show the discussions about purchasing the drugs and also inappropriate sexual and racial messages. (Charge 4)

(5) Petitioner took extended lunches with subordinate employees in violation of District directives, policies, and Personnel Commission Rules. In addition, Petitioner again used his District issued cell phone while on duty for his personal benefit. (Charge 5)

(AR 854-56; see also AR 894-929 [Exhibit 8 to Notice, showing text messages with Chavez relevant to Charge 4].)

The Notice alleged that Petitioner’s conduct violated the following Personnel Commission Rules:

(1) Inefficiency: the continuing inability or unwillingness to perform the regularly assigned duties and responsibilities of the position [Rule 60.800.1.A.2].

(2) Insubordination: knowingly refusing to perform lawful and reasonably assigned duties or refusing to perform those duties in accordance with established or prescribed procedures; challenging, resisting, defying or demonstrating contempt towards a designated supervisor or other school district official having authority to issue directions and instructions to the employee by the nature of his or her position. Inattention to or dereliction of duty, or dereliction in the performance of assigned duties and responsibilities [Rule 60.800.1.A.3].

(3) Willful or persistent violation of the Education Code, or Personnel Commission Rules and Regulations, or the procedures adopted by the District or a department when such procedures are made known to the employees in writing [Rule 60.800.1.A.4].

(4) Repeated unexcused absences or tardiness, abuse of leave privileges or absence without notification or authorization [Rule 60.800.1.A.10].

(5) Work-related dishonesty, theft, willful misuse for personal gain, willful destruction or mishandling of District property, unauthorized use of District or student body property, theft, willful misuse for personal gain, or willful destruction or mishandling of office [Rule 60.800.1.A.14]

(7) Refusal to comply with shift assignments, working hours, or work locations [Rule 60.800.1.A.28].

On March 12, 2020, at its regularly scheduled meeting, the District’s Governing Board adopted the Skelly Officer’s recommendation for termination. (AR 994.) Petitioner thereafter requested a hearing before the District’s Personnel Commission appealing the District’s decision to terminate his employment. (AR 786-790.)

An administrative hearing was held on multiple days before a hearing officer designated by the Personnel Commission. Multiple witnesses testified. (AR 1-785.) The hearing officer issued a proposed decision, in which she found charges 1-2 and 4-5 were proven and that termination was the appropriate penalty. The hearing officer found that Respondent did not prove charge 3. On January 15, 2021, the District’s Personnel Commission (“Commission”) adopted the hearing officer’s final decision to affirm the penalty of dismissal. (AR 1021-56.) The final decision provides a detailed summary of the evidence, statement of facts, and analysis of the charges and penalty. (Ibid.)

On April 19, 2021, Petitioner filed his petition for writ of administrative mandate. Respondent answered.

On April 22, 2022, Petitioner filed his opening brief in support of the petition. The court has received Respondent’s opposition, Petitioner’s reply, Respondent’s amended opposition with citations to the Bates-stamped record, the administrative record, and the joint appendix.

Under CCP section 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 termination of Petitioner from his position as Chief of Security concerns a fundamental vested right, the court exercise 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, supra, 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.)

Under CCP section 1094.5, Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the evidence supports his position. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) 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; see also Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or if not supported by reasoned argument].) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] 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.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends that the weight of the evidence does not support the dismissal, including certain findings and legal conclusions made by the Commission with regard to charges 1, 2, 4, and 5. (Opening Brief (“OB”) 1-13.) Petitioner also argues that there is no evidence he tampered with his district phone, as alleged in Charge 3. The Commission did not sustain Charge 3 and, therefore, Petitioner’s arguments about Charge 3 are irrelevant and not discussed further. (OB 14-16.)

Petitioner also challenges the fairness of the proceedings, arguing that the Commission terminated him for charges or evidence “outside the record” or not alleged in the Notice. (OB 13-18.) Finally, Petitioner argues that the penalty was excessive in light of mitigating factors. (OB 18-20.)

Commission found that Petitioner “did not obtain pre-approval from Fromm before taking a leave of absence from June 21, 2019 to June 24, 2019,” and that he was required to obtain prior approval. Commission made credibility determinations relevant to Charge 1 and found:

Although Fromm did not put this policy [of prior approval] in writing, Fromm's testimony, along with Molleda's behavior to ask Garcia to lie for him, makes Fromm more credible than Molleda. Even though Molleda states that he only needed to submit his request to Escalona, Molleda asked Garcia, via text, to lie for him. Molleda also threatened Garcia to make him a ‘lone ranger’ if he did not lie for his supervisor. Molleda's post-incident conduct diminishes the truth or worthiness of his testimony. Also, Garcia testified that he does not recall Molleda ever advising him of his absences. Previous to these absences, the District directed Molleda to report his absences directly to his supervisor. As such, not only did Molleda ask a subordinate to lie for him, but he was also previously counseled to keep his supervisor apprised as to his whereabouts. (AR 1040-41.)

Commission found that Petitioner’s conduct, as alleged in Charge 1, violated several Personnel Commission Rules (“PC Rules”), including for insubordination, violation of written procedures, unexecuted absences, and work-related dishonesty. (AR 1040-45.)

In his opening brief, Petitioner challenges some of the findings made by Commission for Charge 1, but not all findings. (OB 2-4.) Among other evidence, Petitioner cites his own testimony that supervisor Fromm never told him that he wanted “to be notified that I was going to have [time] off,” and instead told him to “submit the paperwork to my secretary.” (AR 527.) Petitioner cites evidence that he did submit an Absence Claim to Fromm’s secretary for the June 1 and 24 absences, but that the form was not passed on to Fromm due to a problem with the printer. (AR 337, 364.)

In opposition, Respondent cites testimony of Hipolito, Assistant Superintendent of Human Resources, that Petitioner had been counseled about his “visibility” on December 14, 2018, and directed to “check in” with his supervisors on a regular basis. (AR 164-167, 883-84.) In addition, Petitioner’s supervisor Gregg Fromm, Chief Business Officer for the District, testified that it was his policy that all vacation leave requests require his pre-approval and that he informed Petitioner of this policy verbally prior to the absences on June 21 and 24, 2019. (AR 333, 335, 353, 355-56.) Fromm testified that he did not preapprove Petitioner’s absences on June 21, 2019, and June 24, 2019, because Petitioner never asked him for pre-approval. (AR 336:1-337:21; 377:17-19; 529:1-9.)

In its findings for Charge 1, Commission relied in part on text messages that Petitioner sent to Assistant Chief of Security Paul Garcia on July 2, 2019, regarding his June 21 and 24 absences. (AR 1035-36.) Petitioner fails to address this important evidence in his opening brief. Garcia was Petitioner’s subordinate. On July 2, 2019, after meeting with Fromm about the absences, Petitioner texted Garcia the following message:

[I]f you run into Greg [Fromm] let him know that I may have told you about being off and you may have just forgotten if that’s what u recall or don’t recall. If not, you will be known as the lone ranger. Thanks.

Garcia testified that he interpreted the refence to “lone ranger” as a threat and instruction to lie for Petitioner and to cover for Petitioner’s absences. (AR 429-431, 1036.)

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports the Commission’s findings and legal conclusions for Charge 1. Significantly, on December 14, 2018, Petitioner was directed by Human Resources to “check in” with his supervisors on a regular basis. (AR 164-167, 883-84.) This directive is consistent with Fromm’s testimony that he orally instructed Petitioner, before the absences starting June 21, 2019, that his prior approval was required for absences. (AR 333, 335, 353, 355-56.) The weight of the evidence supports the Commission’s finding that Fromm was more credible than Petitioner on the issue of whether Petitioner had been instructed to obtain prior approval from Fromm. While Fromm did not place the directive in writing, he testified that all the directors he supervised had been informed of and knew of this policy. (AR 333-338.) Petitioner’s credibility was substantially undermined by the text messages to Garcia, which show an attempt to cause a subordinate to lie and cover for him in any discussion with Fromm about the absences. It is undisputed that Petitioner did not obtain prior approval from Fromm for the June 21 and 24 absences.

In reply, Petitioner highlights the words “if that’s what u recall or don’t recall” in the text messages to Garcia and argues that such words show that Petitioner was not asking Garcia to lie for him. (Reply 4-5.) Because the “lone ranger” texts were important to the Commission findings, this argument was improperly raised for the first time in reply. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) In any event, the argument is unpersuasive. Garcia did not recall being told that Petitioner would be off on June 21 and 24, and Fromm testified that no one (including Garcia) knew where Petitioner was. (AR 430, 338.) Context suggests that Petitioner was asking Garcia to lie for him. Moreover, the most reasonable interpretation of the language of the text messages, including the “lone ranger” statement, is that Petitioner was asking Garcia to lie and cover for him. Whether or not the text messages were a threat, they were improper and detract from Petitioner’s credibility as a witness.

Contrary to Petitioner’s assertion, Respondent could discipline him for the unapproved absences even though Fromm verbally counseled him upon his return and even though the absences were not reflected in his 2019 performance evaluations. (OB 4:10-17.) Those arguments may be relevant to the penalty, but not the sufficiency of the evidence or legal conclusions. Petitioner’s other arguments about Charge 1 have been considered and do not change the court’s conclusion.

The weight of the evidence supports the findings and legal conclusions for Charge 1.

Commission found that on July 1, 2019, Fromm directed Petitioner to relocate his office from a bungalow to the District’s office for visibility reasons. Commission found: “The deadline to complete the relocation was July 8, 2019. On July 8, 2019, Molleda failed to relocate his office. Molleda asserts that he could not relocate by the July 8th deadline because of the unavailability of his vendors. Molleda never asked Fromm for additional time and believed that Fromm's July 8th deadline was not urgent. In short, he did not respect Fromm's directive and was unwilling to perform his job duties.” (AR 1041.) Commission found that this conduct constitutes insubordination within the meaning of Rule 60.800.1.A.3, among other violations of the PC Rules.

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports the Commission’s findings and legal conclusions for Charge 2. At Petitioner’s performance evaluation on July 1, 2019, Fromm gave Petitioner a clear directive to relocate his office to the District office by July 8, 2019. (AR 576-578, 691-693, 728-29 [Petitioner’s testimony]; AR 378-384 [Fromm’s testimony].) Petitioner failed to relocate his office by July 8, 2019, as instructed, and he also failed to communicate with Fromm prior to July 8, 2019, that he would be unable to do so. (AR 343, 576-582, 692-693, 891.)

Petitioner argues that “[a] missed deadline did not warrant a suspension, much less termination.” (OB 9.) Such argument relates to the propriety of the penalty, not whether Petitioner violated PC Rules by failing to relocate his office as directed.

Petitioner cites evidence that he took initial steps to obtain a quote from an IT vendor to relocate equipment from his bungalow office. (OB 7; see e.g. AR 433-34, 578-85, 815-19.) On July 3, 2019, the IT vendor’s representative emailed Petitioner that he would need to look at the new location to give a quote and that they could pick a date “next week” after the July 4 holiday, which would have been the week of July 8. (AR 816-17.) However, prior to July 8, 2019, Petitioner never communicated to Fromm that he needed to hire an IT vendor for the move or that this process would extend past July 8, 2019. (AR 342-43, 381, 686.) The first time Petitioner communicated he would not meet the deadline was July 8, 2019, at 9:18 am, by text message, after Fromm had texted him “Where are you? It is 9:18 and you have not reported to your new office yet.” (AR 891.)

Petitioner argues that he “should have been granted an extension”; that there was no “urgency” in Fromm’s directive; that the directive was given the week of the July 4 holiday; and Fromm never checked in with Petitioner the week leading up to July 8, 2019. (OB 6-8.) These arguments are not persuasive. The weight of the evidence shows that Fromm gave a clear directive to Petitioner to relocate his office by July 8, 2019. (AR 576-578, 691-693, 728-29; AR 378-384.) The directive would reasonably imply to Petitioner that, if he could not meet it, he should communicate that fact to Fromm. Fromm could not have granted an extension because Petitioner never asked for one. As a high-level District supervisor, and without any request for support from Petitioner, Fromm was not required to “check in” on Petitioner to ensure that the relocation occurred. Fromm aptly summarized the issue: “He was given a directive. He did not express that he could not meet that directive. He did not express to me that he needed support for the directive. He just never showed up on the 8th of July in his office as he was directed to on July 1st to be at.” (See AR 399.)

Other evidence supports Commission’s findings for Charge 2, including inconsistent testimony from Petitioner about whether he was given a directive at all (see Oppo. 19:1-7, citing AR 576-582, 692-693), and Petitioner’s own admissions that he was “surprised” by the request to move offices and asked Fromm on July 1, 2019, why it was necessary. (AR 576-577.) The inconsistencies undermined Petitioner’s credibility and the questions to Fromm about why the move was necessary show a motive to fail to obey the directive.

Petitioner argues at length that “Fromm was fully aware at the meeting on July 8, 2019 that Mr. Molleda had contacted vendors about relocating the office” and that Fromm’s testimony about this issue, and also about an alleged statement of Garcia about Petitioner’s intentions, was not credible. (OB 8-9.) The record does not support Petitioner’s contentions. As discussed, the text messages show that Petitioner only informed Fromm about the delay on July 8, 2019, after Fromm texted Petitioner about not being in his new office. (AR 891.) At that point, Fromm could reasonably view Petitioner’s communication on July 8, 2019, as being too late and a defensive response to Fromm’s question of why Petitioner had not moved. In context, Fromm’s testimony that he “believed” Garcia said Petitioner was going to “try to not move” does not detract from Fromm’s credibility. (AR 349-50.) Fromm was simply “repeating” what he heard and did not claim to know Petitioner’s intentions. Even if he did not correctly recall Garcia’s statements, that would not detract from Fromm’s testimony about the directive given, which was corroborated by Petitioner himself.

Moreover, Petitioner’s record citations do not show a clear denial by Garcia of making the statement recounted by Fromm. (AR 439 [Garcia testimony that Petitioner did not say “I’m not going to that office,” and Garcia “wouldn’t be able to tell” if Petitioner was stalling the move]; see also AR 855 [“In his July 10, 2019 investigation interview, Garcia stated that Molleda intentionally delayed the move to the new office space by failing to timely contact vendors or assess how to move his computer and other technological devices to the new office”].)

Petitioner contends that his “conduct in not relocating his office by July 8, 2019 did not constitute insubordination.” (OB 9.) The court disagrees. Petitioner failed to comply with a directive given by his supervisor – he did not complete the relocation or communicate to Fromm that he could not do so. Moreover, the insubordination policy, PC Rule 60.800.1.A.3, also applies to “inattention to or dereliction of duty.” Petitioner’s conduct falls within that category. (AR 853.) Contrary to Petitioner’s assertion, Commission did not find that he violated PC Rule 60.800.1.A.10 in connection with Charge 2. (OB 9:18-19; AR 1045.)

The weight of the evidence supports the findings and legal conclusions for Charge 2.

Commission found that “[t]hroughout 2018-2019, Molleda used his Direct-issued cell phone to send text messages to Chavez to purchase Maxifort for himself and other individuals. Molleda engaged in these transactions on District property, during work hours and using District property.” (AR 1041.) Commission found that “the District's investigation concluded that Maxifort is not an FDA-approved drug and not available for sale in the United States.” (Ibid.) Commission found that this conduct violated several PC Rules, including misuse of District property, violation of District’s Technology Use Policy, and insubordination and dereliction of duty.

Commission’s Findings of Fact 29 – 44 concern Petitioner’s use of his District-issued cell phone to send text messages to a subordinate employee, Officer Martin Chavez, asking him to import what Petitioner referred to as “vitamins,” or Maxifort, from Mexico. (AR 1037-1038.) Maxifort is a male-enhancement drug similar to Viagra. (AR 255-269, 553, 906.) It is undisputed that Chavez bought the Maxifort from Mexico and brought it into the United States to give to Petitioner. (AR 1037, ¶¶ 29-30; see AR 91-92, 110-111, 174, 252.) Text messages confirm that Petitioner asked Chavez, his subordinate employee, to purchase him the Maxifort when Chavez visited Mexico. (AR 110-111, 896-915.) Petitioner purchased the drugs from Chavez multiple times, using his District-issued cell phone during work hours. (AR 252-282, 574, 661-662, 896-915.) On at least one occasion, Petitioner asked Officer Chavez to place the Maxifort in the glove compartment of a District patrol vehicle, on a school campus, during work hours. (AR 289-291, 902, 912.)

In challenging the findings for Charge 4, Petitioner contends that his “employment was also terminated for personal use of his District-issued cell phone—a practice that is so commonplace among District employees that the District does not even treat it as a violation of policy.” (OB 9-10, citing AR 97, 305, 471-472, 953.) Petitioner contends that it was not uncommon for supervisors to use district phones for personal reasons. (OB 10.) These arguments ignore both that Petitioner was Chief of Security for District, an important supervisory role with responsibility for student safety, and also the context of the personal messages at issue. Indeed, Petitioner’s record citations and the administrative record support that Petitioner was terminated for a serious violation of District’s Technology Use policy. (See AR 97-98 [HR Director testifying that District considered Petitioner’s use of district-issued cell phone to purchase Maxifort to be a “serious” allegation of misconduct]; see also AR 91-92, 110-111, 174, 252, 896-915.) Petitioner cites no evidence of any other District supervisory employee using a District phone to purchase, from a subordinate, drugs that were obtained from abroad and that are not approved for sale in the United States.

Petitioner next contends that he “was never instructed or warned that personal use of his District cell phone could result in any disciplinary action.” Petitioner claims that he was not trained or made aware of the District’s Technology Use policy, which he never signed. (OB 10, citing AR 664, 141, 152-54, 775.) Commission found that the District's Acceptable Use Policy applied to Petitioner during the 2018-2019 school year. (AR 1038, ¶ 44.) The weight of the evidence supports that finding. Petitioner was Chief of Security for District, a high-level supervisory position. (AR 1034-35.) Pursuant to the District’s Personnel Commission Rule 60.800.1.A.27, an employee may be disciplined for violating the District Technology Use Policy. (AR 863-866.) HR Director Zaragoza testified that this policy applied to Petitioner in the 2018-2019 school year and was available on District’s website. (AR 96.) Petitioner cites no authority that his signature on the policy was required for the policy to apply to him in these circumstances. Nor does the evidence preponderate that Petitioner, as Chief of Security, reasonably did not know of the policy. (See AR 664.) At the least, Petitioner should have known of the policy as Chief of Security.

District’s Acceptable Use Policy for District Computer Systems states that employees should be using District property for District work only, including a District cell phone. The policy defines “use” to include “forms of direct electronic communications or equipment provided by the District.” (AR 953.) The policy prohibits the use of District technology to purchase illegal items and substances. (AR 953-954.)

Petitioner contends that “District failed to present evidence that Mr. Molleda purchased pills that were ‘illegal’.” (OB 12; see also Reply 4:1-8 [challenging testimony of Nancy Hipolito].) Commission found that “District's investigation concluded that Maxifort is not an FDA-approved drug and not available for sale in the United States”; that Petitioner did not have a valid prescription for these drugs; and that “[b]y permitting Chavez to import Maxifort for him, Molleda's actions could have resulted in Chavez violating federal law.” (AR 1042, 1048, 1051.) Commission cited authority that “Federal law prohibits the importation of any drugs that have not been approved by the FDA and this includes foreign made versions of U.S. pharmaceuticals. (AR 1042, citing United States v. Grenedo Pharmaceutical 485 F.3d. 958 (7th Cir. 2007); In Re Canadian Imp. Antitrust Litig., 470 F.3d 785, 789-90 (8th Cir. 2006).)

The weight of the evidence supports these findings. Nancy Hipolito, Assistant Superintendent of Human Resources, investigated Petitioner’s conduct and concluded that Maxifort was not approved by the FDA. (AR 172-174.) In testimony cited by Petitioner, Hipolito also stated “Upon seeing the picture of the -- the Maxifort, those were not legal in the U.S. at the time.” (AR 200; see also AR 906 [picture of Maxifort box and labeling].) Contrary to Petitioner’s suggestion, Hipolito only stated she couldn’t answer questions about the legality of Maxifort at the time of the administrative hearing. (Ibid.; see OB 12 and Reply 4.) Chavez and the text messages also confirm that Chavez purchased the drugs only when he visited Mexico. From the text messages, Petitioner clearly understood that the drugs were being purchased from Mexico. (AR 91-92, 110-111, 174, 252, 896-915.) Chavez did not know if the drugs were legal in the United States. (AR 298-299.)

Petitioner has cited no evidence that Maxifort was authorized or labelled for sale in the United States when he purchased it or that he had a prescription for use of Maxifort. Nor does Petitioner’s cited testimony show any reasonable belief that Maxifort was authorized or labeled for sale in the United States. (See OB 12:27-13:4, citing AR 298:22-25, 555:10-13, 574-575.) Indeed, if Maxifort was authorized for sale in the United States, presumably Petitioner would have bought Maxifort from Amazon.com or some other the method that did not require Chavez, a subordinate employee, to travel to Mexico to obtain the drug. When all circumstances are considered, the weight of the evidence supports that Maxifort was not authorized for sale or distribution in the United States – and therefore was “illegal” – at the time of the text messages at issue.

Petitioner cites to Seibert v. City of San Jose (“Seibert”) (2016) 247 Cal.App.4th 1027 to argue that “dismissal of a public employee for private, electronic communications by the employee while on-duty is not proper.” (OB 11.) As argued by Respondent, Seibert is inapposite. The Court of Appeal did not hold that dismissal of a public employee for private communications on an employer-issued (and taxpayer paid for) cell phone is improper. (Oppo. 11-12.) Among other distinguishing factors, the firefighter in Seibert used his own computer device; under the City Department’s policy, firefighters were allowed to bring their personal electronic devices to work and use the wifi, which they paid for themselves; and there was no Department policy governing use of personal computers. (Id. at 1046-47.) The facts in Seibert are dissimilar to the facts here and do not support Petitioner’s position.

For Charge 4, Commission also found that Petitioner “used his District-issued cell phone to send inappropriate text messages to Chavez.” Commission found that “the Exhibits admitted into evidence illustrate the numerous text messages Molleda sent that are racially and sexually inappropriate and a misuse of the District's property and a breach of the position of Chief of Security.” (AR 1042.) An example of such text messages includes the following: “Send me pic of the thunder blues. lol. Over the weekend had Chinita screaming killing it to the other room next to us started banging on the wall. LMAO.” (AR 910-911.)

In his opening brief and reply, Petitioner has not disputed that he sent racially and sexually inappropriate text messages to Chavez, a subordinate employee, as found by Commission and shown by the record. (OB 11:2-17; AR 895-915.) While Petitioner contends termination was an excessive penalty for such personal messages, he has not challenged the finding that the text messages violated PC Rules, as found by Commission. District’s Acceptable Use Policy prohibits use of profane, abusive, impolite, threatening, or harassing language on District technology. (AR 953.) For the Chief of Security of a school district, Commission could also reasonably conclude, as it did, that exchanging such inappropriate text messages during work hours on a District-issued phone was a serious dereliction of duty.

Petitioner argues that other employees who “sent private messages that were offensive or inappropriate,” including Chavez, were not terminated. He contends that the penalty applied to him was too harsh. (OB 12-13.) Those arguments relate to the propriety of the penalty, not whether the evidence supports the findings.

In reply, Petitioner argues that “the absence of any discipline for similar conduct by Messrs. Chavez and Garcia tends to prove that discipline was not warranted and the basis for discipline against Mr. Molleda was pretextual.” (Reply 2, citing Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803, 816-817 (1999).) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise this new argument for the first time in reply. The court rejects the argument for that reason. Moreover, the Iwekaogwu case cited by Petitioner involved claims of race and national origin discrimination, hostile work environment, and retaliation. This writ petition does not involve similar claims. The disciplinary records of Chavez and Garcia are not before the court and cannot be compared to Petitioner’s serious misconduct. Finally, since Petitioner was Chief of Security, any different treatment of subordinates does not, standing alone, prove that his termination was pretexual.

The weight of the evidence supports the findings and legal conclusions for Charge 4.

Commission found that Petitioner violated various PC Rules and the email directive given by Hipolito on December 14, 2018, by taking extended lunch breaks “that exceeded one hour,” including with employees whose lunch breaks were limited to 30 minutes. (AR 1040-47; see also AR 1038-39.)

The weight of the evidence does not support the finding that Petitioner violated PC Rules or the December 14 email by taking lunches that exceeded an hour. Contrary to Commission’s finding, Hipoloto did not give Petitioner a clear directive in the December 14, 2018, email to “keep him [sic] lunch breaks to one hour.” (AR 1040.) In the December 14 email, Hipolito directed Petitioner to “work an eight hour day excluding your lunch.” She stated that his hours should be 7:30 am to 4:30 pm, “if you take an hour lunch.” (AR 883 [bold italics added].) She never stated that Petitioner, an exempt, managerial employee, was strictly limited to a one-hour lunch break. As explained by HR Director Zaragoza, who also attended the December 14 meeting, restricting Petitioner’s lunch break to one hour would be inconsistent with his classification as an exempt, managerial employee. (AR 134-35.) Zaragoza testified, credibly, that Petitioner was instructed on December 14, 2018, that if he took a lunch longer than an hour, he would be expected to make up that time. (AR 65-66.) Commission did not find that Petitioner failed to make up time spent at lunch breaks that exceeded one hour. Because the evidence does not support that Petitioner was directed to limit his lunch break to one hour, Commission abused its discretion in finding that Petitioner violated PC Rules or the December 14 email when he took lunch breaks that exceeded one hour.

However, the weight of the evidence supports the finding that Petitioner violated PC Rules by taking extended personal, lunch breaks with subordinate employees, Chavez and Garcia, even though those employees were only entitled to 30-minute lunch breaks. Evidence supports that Petitioner, Chavez, and Garcia would discuss work-related matters throughout the lunches at issue. However, they also discussed non-work-related matters. (AR 565-567, 676-77, 314-315, 456-58.) Both Officer Chavez and Assistant Chief of Security Garcia testified that they had a 30-minute lunch break, they took lunches with Petitioner in excess of their 30-minute lunch break, and they were paid for time spent during the extended lunch breaks. (AR 292-294, 319, 413-14, 436-38.) While Petitioner presumably could authorize extended lunches of Chavez and Garcia, as their supervisor, Petitioner does not claim that he did so. Rather, he claims that Chavez and Garcia “were aware that taking extended lunches was discretionary, and they could have declined to take the lunch.” (OB 6, citing AR 436, 567.) The evidence supports that these regular lunches were often personal in nature, and that Chavez and Garcia reasonably believed or could have believed that Petitioner, as Chief of Security, had authorized them to take extended, lunch breaks that were personal in nature. The Commission reasonably found that conduct violated PC Rules, including for inefficiency and dereliction of duty, as found by Commission. The weight of the evidence supports Commission’s conclusion.

The weight of the evidence does not support the findings for Charge 5 that Petitioner violated PC Rules or the December 14 email by taking lunches that exceeded an hour. The weight of the evidence supports the findings for Charge 5 in all other respects.

Petitioner contends that Commission improperly terminated him based on “charges outside the record, such as an alleged violation of a sexual harassment, safety, or drug-free policy.” (OB 13-14.)

The inquiry under CCP section 1094.5(b) extends to whether Petitioner received a fair trial. “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240; see also Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 207-215.) A public agency “is bound by its own policies and procedures.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062.)

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard ….” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497.)

Petitioner represents that the PC Rules provide that the notice of disciplinary action against a permanent employee, such as Petitioner, must include the following information “in ordinary and concise language: “[t]he charges must be sufficiently clear that the employee will know the exact complaint(s) and charges again them”; “[t]he specific causes and sections of these Rules that the employee is accused of violating and upon which the disciplinary action is based”; “[t]he specific charges, a description of the chargeable action(s) or omissions, including times, dates, and locations”; and “[a] copy of charges and documentation to support the District’s case against the employee.” (OB 13, citing Rule 60.800.2D(B), (C), & (E).) Petitioner does not cite the record or request judicial notice of the rule, but Respondent does not challenge this statement.

Here, the Notice satisfied PC Rule 60.800.2D(B), (C), & (E). In five separate charges, the Notice set forth the factual allegations against Petitioner and the PC Rules upon which the charges were based. (AR 852-857.)

Petitioner contends that District improperly “amended” the charges to include alleged violations of a sexual harassment policy; safety policy; or drug-free workplace, or zero tolerance, policy. As support, Petitioner contends that Commission “cited Mr. Molleda’s knowledge of the ‘drug-free workplace policy’ and ‘zero tolerance drug policy’ in its ‘Finding of Facts’ supporting the Decision.” (OB 14, citing AR 1038, ¶ 41.) Petitioner contends that Commission “also cited the act of Mr. Molleda buying the pills—outside of just the text messages—which may violate the extraneous policies, not the Technology Use policy.” (Ibid., citing AR 1046:21-27.) Petitioner fails to cite the record or develop an argument showing Commission found violations of a sexual harassment policy.

Petitioner does not show that the Commission improperly relied on matters outside the Notice or administrative record. As Petitioner notes, Commission was not precluded from considering prior discipline or “events or circumstances… for purpose of supporting the degree of disciplinary action.” (OB 16, citing PC Rule 60.800.2A(C)(1).) In its summary of evidence for Charge 4, Commission stated that Petitioner “is knowledgeable of District policies and is familiar with the drug free workplace policy and knows the District has a zero tolerance drug policy.” (AR 1038, ¶ 41.) Petitioner does not dispute this fact, which pertains to his credibility and to Commission’s assessment of appropriate penalty. Commission did not find Petitioner liable for violating a drug-free workplace or zero tolerance policy. Moreover, Commission’s finding that Petitioner used his District cell phone to send text messages to Chavez to purchase Maxifort is entirely consistent with the allegations made in the Notice and did not deprive Petitioner a fair trial. (AR 1046:21-27; AR 855-56.)

Petitioner also argues that “[t]o justify Mr. Molleda’s termination, the District relied on events that occurred more than one year before issuing the notice of the proposed disciplinary against Mr. Molleda,” including alleged violations of the directives given in the December 14, 2018, email. (OB 16.) The court is not persuaded.

To the extent Commission found that Petitioner did not comply with specific directives given in the December 14, 2018, email, Petitioner has not shown the offending conduct occurred more than one year before the date of the Notice.

In all other respects, Petitioner cites no Commission finding that relies on the “stale events” discussed at pages 16 to 18 of the opening brief. The Hearing Officer’s final decision explicitly states she did not consider any “additional facts” that were not included in the Notice of Intent to Discipline. (AR 1050.) Because Commission made no findings of liability based on the alleged “stale events,” Petitioner’s argument is not supported. Moreover, as Petitioner acknowledges, Commission could consider prior discipline or “events or circumstances… for purpose of supporting the degree of disciplinary action.” (OB 16, citing PC Rule 60.800.2A(C)(1).) Finally, Petitioner was represented by counsel in the administrative proceedings and could have objected to any evidence he believed was improper. Petitioner does not show he objected to the testimony about “stale events” or that if he did object, any evidentiary ruling by the hearing officer constituted a prejudicial abuse of discretion.

“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.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) 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 [emphasis added].)

Petitioner contends that “mitigating factors” weigh against Commission’s decision to terminate his employment, including: (1) that he received a “glowing” performance evaluation in June 2012 and no other performance evaluations for six years thereafter; (2) the failure to provide performance evaluations for six years deprived Petitioner of progressive discipline; (3) Petitioner received a positive performance evaluation from Fromm on July 1, 2019; (4) Petitioner had worked for District for 27 years; (5) Petitioner had not received complaints of inappropriate behavior in those 27 years; and (6) the termination will cause Petitioner to lose “seniority and substantial CalPERS retirement benefits.” (OB 18-20.) As noted above, Petitioner has also argued throughout his brief that termination was an excessive penalty for the misconduct at issue, including exchanging personal messages with a co-employee, the two absences in June 2019, and failing to relocate his office as instructed. (OB 2-13.) Finally, Petitioner argues that other employees who “sent private messages that were offensive or inappropriate,” including Chavez, were not terminated. He contends that the penalty applied to him was too harsh when compared to the penalty, or lack thereof, imposed on other employees. (OB 12-13.)

Commission considered potential mitigating factors in its analysis of the penalty. Commission noted that Petitioner’s “past performance evaluations are [sic], although sparse, range from Standard, Above Standard, Superior, to Exceeds Standards.” (AR 1050.) Commission noted that Petitioner’s most recent evaluation from Fromm covered only a short work period and was prepared “before the District discovered that Molleda asked Chavez to purchase Maxifort for him from Mexico.” (Ibid.) Commission did not give significant weight to a 2009 evaluation that was “too stale.” (Ibid.) Commission considered Petitioner’s lack of significant discipline. (AR 1051.)

Commission also considered factors that weighed for a severe penalty. Commission noted that Petitioner was counseled about work attendance and/or visibility at the December 14, 2018, meeting and in his performance evaluation with Fromm. (AR 1051.) Commission concluded that Petitioner’s “most egregious violation occurred when the District discovered, investigated, and found that Molleda allowed Chavez to import Maxifort into the United States from Mexico. This conduct is problematic. By permitting Chavez to import Maxifort for him, Molleda's actions could have resulted in Chavez violating federal law.” (AR 1051.) Commission stated: “As the Chief of Security, Molleda is required to keep the campus, students, and employees safe. He is allowed to detain students and enforce District policies. In order for the District to engage in the efficient and effective operations of its operations, the constituents for which he serves must believe and trust that the District's highest security position is trustworthy, and adheres to school policies and procedures.” (AR 1052.) Moreover, “District did not discover Molleda's misuse of District equipment and abuse of his position until after he was placed on paid administrative leave and as such, any lack of progressive discipline on this issue is of no moment.” (AR 1053.) Commission concluded: “As Chief of Security, Molleda is held to a higher standard of care as explained in this Decision.” (AR 1053.)

Here, Commission found, and the weight of the evidence supports, that Petitioner engaged in serious misconduct related to Charge 4. While Petitioner attempts to downplay the significance of using a District-issued phone to purchase unauthorized drugs from Chavez, a subordinate, those arguments are unconvincing. Moreover, the supported findings for Charges 1, 2, 4, and 5, in combination, further show a pattern of Petitioner neglecting his duties and even disobeying orders. Petitioner was Chief of Security, responsible for the safety of students and employees. Commission could reasonably conclude that his conduct fell well short of the “higher standard of care” for that position and that termination, in the first instance, was the appropriate penalty.

As discussed, the court has concluded that part of the findings for Charge 5 are not supported by the weight of the evidence. However, Commission concluded that “th[e] Maxifort incident, either alone, or in combination with the other acts charged, is sufficient to warrant dismissal.” (AR 1053.) All findings for the “Maxifort incident,” or Charge 4, are supported by the weight of the evidence, as are all findings for Charges 1 and 2. The finding that was not supported for Charge 5 – Petitioner taking lunch breaks in excess of an hour – was not dispositive to the Commission’s analysis of penalty. Because Commission expressly stated that it would have reached the same result without that finding, the court’s conclusion that part of the findings for Charge 5 are unsupported does not merit a remand. Commission’s penalty conclusion was reasonable and not an abuse of discretion, even when that finding is omitted.

The petition is DENIED. While the weight of the evidence does not support the findings for Charge 5 that Petitioner violated PC Rules or the December 14 email by taking lunches that exceeded one hour, Petitioner does not show a prejudicial abuse of discretion in any other findings or legal conclusions. Petitioner received a fair trial; and the penalty of termination was reasonable based on the supported findings.

[1] For facts not challenged by Petitioner or Respondent, the court may cite to the summary of the evidence provided in the Personnel Commission’s final decision. (AR 1025-1053.)