Judge Mitchell L. Beckloff, Case Number: 22STCP00733, Date: 2023-10-27 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00733, Date: 2023-10-27 Tentative Ruling

Petitioner, County of Los Angeles, County of Los Angeles Sheriff’s Department (Department), seeks a writ of administrative mandate directing Respondent, Los Angeles County Civil Service Commission (Commission), “to set aside its order of January 20, 2022 reducing the discharge of Real Party In Interest Stacey Belcher-Holwager to a thirty (30) day suspension and directing it to sustain the decision of [the Department] to discharge Real Party In Interest Stacey Belcher-Holwager.” (Pet. Prayer ¶ 1.) Real Party in Interest, Stacey Belcher-Holwager, opposes the petition.

The Department employed Real Party as a custody assistant from 1998 until June 15, 2017, a period of 19 years. Real Party demonstrated excellent job performance and had no prior discipline until the incidents leading to her discipline in this case. (See AR 70, 806-808.)

On June 15, 2017, after Skelly[1] proceedings, the Department served a notice of discharge on Real Party arising from two, off-duty shoplifting incidents occurring on June 10, 2015 (at a Target Store) and June 17, 2015 (at a Kohl’s Department Store).[2] The Department alleged Real Party failed to notify her “unit of assignment” that she was detained and/or arrested and criminally prosecuted for the incidents. (AR 346-347.) For one of the incidents, the Department alleged Real Party failed to appear in court and had a bench warrant issued for her arrest. (AR 346.) The Department’s notice alleged Real Party violated multiple provisions of the Manual of Policy and Procedures, including General Behavior, Obedience to Laws, Immoral Conduct, and Off-Duty Incidents. (AR 345-347.)

Real Party appealed the discharge; a hearing officer conducted an administrative hearing. Multiple witnesses testified, including Chief Eric G. Parra, the Department’s decisionmaker for the discipline; Dr. Jack Rothberg, a psychiatrist for the Sheriff’s Employee Support Services for the last 15 to 20 years (AR 751); Real Party’s sister; and Real Party. (AR 62-71.)

On September 7, 2018, the hearing officer issued a proposed decision recommending the discharge be sustained. (AR 72.) Among other findings of fact, the proposed decision found:

4. [Real Party] was diagnosed with depression in 2008 and has been taking medication for it since that time.

5. Medical testimony is that untreated bi-polar condition aggravated by anti-depression medication played a role in Appellant's two shoplifting incidents in June and July 2015.

6. On June 10, 2015 while off-duty, [Real Party] stole merchandise from a Target store having a value of $203.68, was detained by Store Loss Prevention officers, arrested by Los Angeles County Sheriff's Department personnel, pleaded nolo contendere in Los Angeles County Superior Court to P.C. 484(a) Petty Theft, failed to appear in Court on April 20, 2016 causing a bench warrant to be issued for her arrest, and failed to notify her unit of assignment that she had been arrested and was the subject of a criminal prosecution.

7. Appellant was diagnosed and medicated for her bi-polar condition after the first incident and before the second incident.

8. On July 17, 2015 while off-duty, Appellant stole merchandise from a Kohl's store having a value of $154.99, was detained on July 28, 2015 by personnel from the Los Angeles County Sheriff's Department for P.C. 484(a) Petty Theft, was the subject of an arrest warrant for P.C. 484(a) signed on August 18, 2015, pleaded nolo contendere to PC 484 (a), and failed to notify her unit of assignment that she had been detained and was the subject of a criminal prosecution.

9. Appellant's medications were augmented and the dosages adjusted after the second incident. (AR 70-71.)

The hearing officer’s proposed decision concluded the allegations in the Department’s letter of discharge are true. (AR 71.) The hearing officer also found discharge was an appropriate penalty and “proportionate to the offense.” (AR 71.)

On November 14, 2018, the Commission announced its proposed decision to accept the findings and recommendation of the hearing officer. (AR 74.) In response to Real Party’s objections (AR 75-102), the Commission remanded the matter to the hearing officer “to make additional conclusions of law to specifically address [the Americans with Disabilities Act (ADA)].” (AR 125.) “The Commission further directed the [hearing officer] to discuss the impact of [Real Party’s] failure to argue that her disability played a role in her other charged policy and legal violations in this case.” (AR 119.)

On October 20, 2019, the hearing officer issued a revised proposed decision after remand. (AR 119.) The hearing officer’s second decision analyzed Real Party’s objections under the ADA. The hearing officer maintained his recommendation that the discharge should be sustained as proportionate to the offense. (AR 119-124.)

On January 22, 2020, the Commission issued its notice of proposed decision to accept the revised findings and recommendation of the hearing officer to sustain the discharge. (AR 130.) Real Party filed objections to the Commission’s proposed decision. (AR 131-173.) The Department filed a response. (AR 175-189.)

On January 27, 2021, with one commissioner absent, the Commission heard a motion to overrule Real Party’s objections and sustain the discharge. (AR 862.) The motion received a 2-2 vote. (AR 862.) Accordingly, the Commission continued the matter until a fifth commissioner was available. (AR 862.)

2. The discipline imposed by the Department is not proportionate to the offense.

3. The appropriate discipline is a 30-day suspension, and the Department is to consider reasonable accommodations for Petitioner. (AR 199.)

On October 5, 2021, the Commission issued a notice of its new proposed decision to “reject the recommendation” to sustain the Department’s discipline and, instead, “to impose a thirty (30) day suspension and direct the Department to provide a reasonable accommodation.” (AR 200.) The Department filed objections to the new proposed decision. (AR 201-217.)

On December 15, 2021, the Commission considered the Department’s objections to its new proposed decision. After deliberation, the Commission voted 3 to 2 to overrule the Department’s objections and adopt its new proposed decision to impose a 30-day suspension as a penalty on Real Party. (AR 909-922, 220.)

The Department seeks relief from the court pursuant to Code of Civil Procedure section 1094.5.[3]

Under Code of Civil Procedure section 1094.5, subdivision (b), the pertinent issues for the court 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. (Code Civ. Proc., § 1094.5, subd. (b).)

As noted by the Department, it does not have a fundamental vested right in the employment decision in issue. (Opening Brief 9:9-11.) Thus, the court uses substantial evidence review

to the extent the Department challenges any administrative findings. (Carpenter v. Civil Service Com. (1985) 173 Cal.App.3d 446, 449-452.)

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.) “Courts may reverse an [administrative] decision only if, based on the evidence . . ., a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) A petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . Interpretation of a statute or regulation is a question of law subject to independent review.” (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.)

“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.)

Finally, 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 Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [Cal. Rules of Court, Rule 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories”]; Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14. [“We are not required to search the record to ascertain whether it contains support for [the parties’] contentions.”])

In a footnote, the Department asserts the “Commission issued its decision based on a tainted case record caused by [Real Party] improperly submitting alleged ‘evidence’ months and months after the case record was closed, all in clear violation of established case law and procedures.” (Opening Brief 4, fn. 1 [citing AR 193-198].) Although the Department’s argument is not entirely clear in the context of this proceeding, the Department apparently contends the Commission deprived it of a fair hearing and/or committed a procedural error by allegedly accepting and considering new evidence after the “record was closed.” (Opening Brief 4, fn. 1.)

“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.) 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 [the Department] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

In footnote 4, the Department references a psychological evaluation of Real Party dated May 26, 2021 apparently received by the Commission on or about May 27, 2021. (AR 193-198.) However, the Department fails to show the Commission admitted or considered this new evidence. Indeed, the Commission unanimously voted at the June 2, 2021, meeting to sustain the Department’s objection to the “doctor’s report” and exclude such evidence. (AR 871-875; Oppo. 15:3-12.) The Department does not show, with citations to the administrative record, the Commission improperly considered any new evidence, including the psychological evaluation.

The Department has failed to demonstrate the Commission denied it a fair hearing based on a claim the Commission relied upon “a tainted case record caused by [Real Party] improperly submitting alleged ‘evidence’ months and months after the case record was closed . . . .” (Opening Brief 4, fn. 4.)

The Department asserts “Respondent Commission has not articulated any findings and conclusions that support its new proposed decision, in violation of the mandates of Topanga Assn., etc., v. County of Los Angeles (1974) 11 Cal. 3d 506.” (Opening Brief 4:18-20; see also Reply 2:7-12 and Pet. ¶ 15.F [same].)

The Department’s argument is conclusory and nonspecific—the Department provides no legal analysis for its claim and fails to explain why the written and oral statements made by the Commission explaining its decision were insufficient to satisfy Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 [Topanga]. Given the conclusory nature of the claim, the argument is waived. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or adequately briefed].)

Assuming, however, the Department did not waive its argument under Topanga, the court finds it unpersuasive on the merits. In Topanga, supra, 11 Cal. 3d at 515, the Supreme Court held "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." The Court explained:

among other functions, . . . findings enable the reviewing court to trace and examine the agency's mode of analysis. . . . Absent such roadsigns, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency. . . . (Topanga, supra, 11 Cal. 3d at 516-517 [footnotes omitted].)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) Significantly, the agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.)

The Department does not argue the Commission failed to make sufficient factual findings concerning Real Party’s employment history with the Department and lack of prior discipline; the underlying acts for which Real Party was disciplined; and the circumstances of such acts, including unrebutted medical testimony that Real Party’s “untreated bi-polar condition aggravated by anti-depression medication played a role” in the two shoplifting incidents. (AR 70-71.)[4]

In his first proposed decision, the hearing officer issued findings of fact concerning all relevant issues. (AR 70-71.) The Commission remanded the matter to the hearing officer “to make additional conclusions of law to specifically address ADA.” (AR 125.) The Commission did not remand the matter to the hearing officer for additional findings of fact. Although the Commission issued Revised Conclusions of Law (AR 199), it did not issue revised findings of fact. The Commission also agreed with the hearing officer that the charges as alleged by the Department were true. (AR 199.)

The Department does not cite any statement of the Commission suggesting that it did not intend to adopt the findings of fact made by the hearing officer in his original proposed decision, including Real Party’s diagnosis as suffering from a “bi-polar condition.” (AR 71.)

The Commissioners’ statements at the meetings concerning the parties’ various objections also corroborate a finding the Commission did not intend to set aside the findings of fact made by the hearing officer. (AR 788-926; see also Opposition 4:17-5:24.) Accordingly, the court concludes the Commission made sufficient findings of fact under Topanga.

Although the argument is not fully developed in the Department’s briefing, the Department asserts the Commission provided insufficient findings to explain its decision to reduce the penalty imposed from a discharge to a 30-day suspension. The court is not persuaded. Topanga requires the agency to “justify the penalty imposed, including ‘a statement of the factual and legal basis for the decision.’ ” (Oduyale v. California State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113.) “However, there is no legal requirement to explicitly discuss, consider, and explain the rejection of all forms of discipline short of the one selected.” (Id. at 115.) “So long as the findings ‘enable the reviewing court to trace and examine the agency's mode of analysis’ [citation], there is no abuse of discretion. . . .” (Ibid.)

As persuasively argued by Real Party, Commissioners Segal, Nightingale, and Duran, who voted to reduce the penalty, each made statements explaining their rationale concerning penalty at the Commission meetings. (Opposition 4:27-5:19.) For example, at the June 2, 2021, meeting, Commissioner Segal stated:

[I]n the findings of fact, there's a notation with the -- there was medication change after the first incident, and then further medication change after the second incident. I don't share the belief that -- first of all, let me just say that I do -- I think it's important to note that bipolar does come under the Disability Act, and while I don't think it's an excuse, I think that there is a connection here. I have really an issue with the discharge that was imposed here. I just -- I feel like the given -- that given Ms. Holwager’s history, the years that she’s had on the job and the failure to have any prior disciplinary action, that personally I’m – I’m compelled to look at the discharge rather than in terms of -- in terms of thinking through potentially of a different -- a different disciplinary outcome, and I would be inclined to go with 30 days. (AR 896-897.)

Commissioner Segal also made the final motion on December 15, 2021, to overrule the Department’s objections and impose a 30-day suspension. Prior to that motion, Commissioner Segal stated:

You know, I made -- I stated my opinion on this last time, and I'm finding that it hasn't changed. And I do find that the Hearing Officer was speculative in terms of sort of trying to protect against future action with no real reason to believe that she would not take her medication.

The accommodation issue is compelling to me, as well as the lack of moving with progressive discipline, and frankly that reason alone frankly compels me not to change my stand from the beginning, which is to overrule the Department's objections and stay with our proposed decision. (AR 920.)

Commissioner Nightingale seconded the motion and Commissioner Duran supported the motion. Both commissioners stated views consistent with those of Commissioner Segal. (See AR 896-897, 899, 915, 920.)

It is reasonably clear from Commissioner’s Segal’s motion, and other statements of the members of the majority vote, the Commission believed Real Party’s long employment history with Department; lack of prior discipline; and untreated bipolar disorder at the time of the shoplifting incidents were mitigating factors justifying a reduced the penalty from discharge to a 30-day suspension. The majority commissioner’s statements also show they believed the policy of progressive discipline in the Department’s disciplinary guidelines weighed for a reduction in penalty. The Department fails to explain why the findings of fact made by the hearing officer (and impliedly adopted by the Commission), the Revised Conclusions of Law, and the commissioners’ oral statements regarding penalty are insufficient to satisfy Topanga. The Commission was not required to “discuss, consider, and explain the rejection of all forms of discipline short of the one selected,” and the court may reasonably determine the Commission’s mode of analysis with respect to the penalty. (Oduyale v. California State Bd. of Pharmacy, supra, 41 Cal.App.5th at 115.)

The Department has failed to meet its burden of demonstrating the Commission failed to comply with Topanga.

Although the Department’s petition alleges the “Commission's findings are not supported by substantial evidence” (Pet. ¶15.B), the Department’s opening brief and reply do not challenge any specific factual findings or argue such findings are unsupported by substantial evidence. (See Opening Brief 10-15 and Sec. VI [arguing Commission abused its discretion by “reducing the discipline” and committed “errors of law”].)[5] Accordingly, the Department has waived any argument the findings of fact are unsupported by substantial evidence. (Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at 862-863.)

Moreover, substantial evidence review is deferential. “Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence.” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073 [cleaned up].) As noted earlier, Real Party did not contest the circumstances surrounding the shoplifting incidents or the factual allegations leading to the discharge. Real Party only challenged the “appropriateness of the discipline . . . based on underlying medical issues.” (AR 692.) The Department did not rebut the expert medical testimony of Dr. Rothberg concerning Real Party’s bipolar condition. In fact, the Department did not introduce any expert opinion evidence to counter that offered through Dr. Rothberg.[6] (AR 66-71.)

Based on the foregoing, the court finds the Department has failed to demonstrate the Commission’s findings of fact are not supported by substantial evidence.

As noted earlier, “[t]he 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, supra, 217 Cal.App.3d at 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 there has been a manifest abuse of discretion as to the discipline imposed, 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., supra, 15 Cal.3d at 218.)

Here, while reasonable minds could—and actually did—differ, the Commission was well within its discretion to reduce the penalty from a discharge to a 30-day suspension.

As the Department acknowledges, “the range of discipline for each violation includes discharge.” (Opening Brief 3:19 [citing AR 375].) Stated differently, the Department’s disciplinary guidelines provide discharge is the maximum penalty for the misconduct at issue. The disciplinary guidelines include lesser penalties, including a written reprimand or suspension, as may be appropriate depending on the circumstances. (AR 375.) Additionally, the Department does not dispute the Department has a policy of progressive discipline. (See AR 920 [noting policy of progressive discipline in final motion to overrule Department’s objections].)

As discussed earlier, the administrative findings of fact show: (1) Real Party had worked for the Department for more than 19 years at the time of her discharge; (2) Real Party’s performance “was excellent throughout her career until these incidents”; (3) Real Party “had no prior history of discipline and received eight (8) commendations”; (4) “medical testimony is that an untreated bi-polar condition aggravated by anti-depression medication played a role in Appellant's two shoplifting incidents in June and July 2015”;[7] (4) Real Party “was diagnosed and medicated for her bi-polar condition after the first incident and before the second incident”; and (5) Real Party’s “medications were augmented and the dosages adjusted after the second incident.”[8] (AR 70-71.) Additionally, Real Party did not dispute the underlying allegations.

Based on all of the evidence and findings, the Commission could reasonably consider the mitigating factors, the Department’s penalty ranges for the misconduct at issue, and the policy of progressive discipline and conclude, as it did, that a 30-day suspension was the most appropriate penalty. That the Department and two Commissioners disagreed with the penalty decision does not prove it was unreasonable; it demonstrates reasonable minds differed on the appropriate penalty for Real Party. The court finds no manifest abuse of discretion with the Commission’s decision concerning the penalty imposed.

The Department makes several legal arguments regarding the penalty, none of which is persuasive.[9] Citing Chief Parra, the Department contends: “a paramount issue for the Department is to maintain the public trust and for its employees in the Custody Division to protect and serve the inmates in its custody and control. RPI's repeated criminal acts of stealing from public stores and pleading to criminal charges is wholly incompatible with the duties and responsibilities of a Department member . . . .” (Opening Brief 10:21-25.) Relatedly, the Department notes occupations in law enforcement “carry responsibilities and limitations on personal freedom not imposed on those in other field” and “require a higher level of trust and confidence.” (Opening Brief 9:20-21, 10:13-14.) The court agrees such factors are relevant to a penalty determination. However, the record shows the Commission did consider such factors but gave more weight to other factors, including Real Party’s lack of prior discipline, long history with the Department, and the evidence that her bi-polar disorder “played a role” in the shoplifting incidents. While the shoplifting incidents and other misconduct committed by Real Party were indeed serious, the court cannot conclude they were so severe that a 30-day suspension—the penalty just below discharge—was unreasonable in light of the mitigating circumstances. The Department provides no legal authorities or evidence suggesting the Commission was required to impose a penalty of discharge under the facts and circumstances of this case.

[Real Party] deliberately violated other policies which form the ground for six other independent additional grounds to support her discharge [such as failure to notify the Department of her arrest]. . . . Assuming arguendo that [Real Party] was disabled by a manic episode (twice) during the thefts, what excuses these six other policy violations? [Real Party] has no answers. (Opening Brief 10:26-11:6.)

The hearing officer’s decision discussed the six other violations. Nothing suggests the Commission failed to consider them. It seems clear that the two shoplifting incidents were the main acts of misconduct that led to other, related policy violations (e.g., failure to notify). The policy violations flowed from the acts of misconduct. In that context, the Department does not show the Commission unreasonably imposed a 30-day suspension as a penalty in light of the mitigating factors discussed above, including the direct connection between Real Party’s bipolar disorder and the two shoplifting incidents.[10]

Citing the hearing officer and the two dissenting Commissioners, the Department contends “there is abundance of case law that provides that the ADA does not protect employees with alleged disabilities, particularly in a law enforcement organizations, who commit criminal acts.” (Opening Brief 11:21-12:2.) The Department then asserts “it is clear that Respondent Commission committed errors in law and abused its discretion when it misapplied the relevant law.” (Opening Brief 12:3-4.)

As a preliminary matter, while the Commission did discuss the ADA at length and instructed the Department “to consider reasonable accommodations” for Real Party, the Department does not show the penalty decision itself was ultimately based on any legal conclusions made by the Commission under the ADA. Indeed, in the motion to impose a 30-day suspension and other statements, Commissioner Segal suggested that concepts of progressive discipline alone justified the reduced penalty. (See AR 920 and 896-897.) The Commission concluded the discipline imposed by the Department was not “proportionate to the offense” and a 30-day suspension was the appropriate discipline under the circumstances. (AR 199.) The Commission did not make any legal conclusions suggesting its analysis of the ADA was necessary to the penalty decision. The debate amongst the commissioners shows thoughtful consideration of the difficulty of a penalty decision under these factual circumstances.

Furthermore (and for completeness), to the extent the ADA is relevant to the penalty, the court finds the Department’s arguments unpersuasive and those of Real Party compelling. Bipolar disorder is a disability under the federal ADA and corresponding California statutes. (42 U.S.C.

§ 12102; Gov. Code § 12926.1, subd. (c).) “For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” (Humphrey v. Memorial Hospitals Ass’n (9^th Cir. 2001) 239 F.3d 1128, 1139-40.) The ADA did not prevent the Commission from considering Real Party’s bipolar disorder as mitigation for the shoplifting incidents.

The Department cites several Rehabilitation Act of 1973 and ADA cases involving individuals who attributed their misconduct to alcoholism or illegal drug use. (See Opening Brief 12-13; see e.g., Newland v. Dalton (9^th Cir. 1996) 81 F.3d 904; Martin Collings v. Longview Fibre Company (9^th Cir. 1995) 63 F.3d 828; Maddox v. University of Tennessee (6^th Cir. 1995) 62 F.3d 843; and Little v. F.B.I. (4^th Cir. 1993) 1 F. 3d 255.) Those cases are not on point, however, because “the ADA authorizes discharges for misconduct or inadequate performance that may be caused by a ‘disability’ in only one category of cases-alcoholism and illegal drug use.” (Humphrey v. Memorial Hospitals Ass’n, supra, 239 F.3d at 1139, fn. 18; see also 42 U.S.C. § 12114.)[11]

Finally, the Department argues the authorities it relies upon “demonstrate that the ADA did not preclude [the Department] from discharging RPI for her repeated criminal acts.” (Opening Brief 15:5-6 [emphasis added].) For purposes of the court’s review of the penalty imposed, the issue is not whether the ADA precluded the Department from discharging Real Party, but whether the Commission manifestly abused its discretion by selecting a 30-day suspension as discipline for Real Party.

Based on the foregoing, the court concludes the Department has failed to demonstrate the Commission committed a manifest abuse of discretion when it imposed a penalty of a 30-day suspension on Real Party.

[The Department] objected to the portion of conclusion of law number 3 that states: ‘the Department is to consider reasonable accommodations for Petitioner.’ This portion is ambiguous, vague and Respondent Commission does not have the authority to issue such an order. Also, the matter of ‘reasonable accommodations’ was not an issue certified for hearing and no evidence was presented at the hearing regarding ‘reasonable accommodations’ so that portion of Conclusion of Law, no. 3 should have been stricken. (Opening Brief 4-5, fn. 2.)

While it is not entirely clear, to the extent the Department is suggesting a conclusion of law should be stricken, the argument is unpersuasive; it is not tethered to any legal authorities or sufficiently explained. (See Nelson v. Avondale Homeowners Ass’n., supra, 172 Cal.App.4th at 862-863.) Also, the Department does not explain how, if at all, the conclusion is prejudicial, as the Commission simply ordered the Department to “consider” a course of action and did not mandate any specific reasonable accommodations. Finally, absent citation to authority to the contrary, the court concludes the Commission has authority to order the Department to “consider” such options—nothing about the order is binding. The court need not decide in this proceeding whether the Commission has authority to order the Department undertake any particular reasonable accommodations.

Based on the foregoing, the Department did not demonstrate a prejudicial abuse of discretion as to the conclusion of law requiring the Department to consider reasonable accommodations for Real Party.

[1] Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218 [Skelly]

[2] The criminal proceedings related to the first incident were dismissed. (AR 294.) The second incident was dismissed after diversion. (AR 812.)

[3] While the petition references Code of Civil Procedure section 1085, the Department does not rely on or cite the section in its briefing.

[4] At the administrative hearing, Real Party did not contest what occurred during the shoplifting incidents or the factual allegations leading to her discharge. Real Party challenged only the “appropriateness of the discipline . . . based on underlying medical issues.” (AR 692.) The Department did not rebut (or even attempt to rebut) the expert medical testimony of Dr. Rothberg concerning Real Party’s bipolar condition. (AR 66-71.)

[5] The Department summarizes evidence in the record, including testimony of Chief Parra and Dr. Rothberg. However, at no time does the Department argue any specific finding of fact is unsupported by substantial evidence.

[6] The Department does not challenge Dr. Rothberg’s expertise. In fact, the Department’s Employee Support Services program refers the Department’s employees and family members to him for “psychotropic medications or issues which would be best handled by a psychiatrist.” (AR 751.) Dr. Rothberg has had a 15 to 20 year relationship with the Department. (AR 752.)

[7] Dr. Rothberg explained Real Party’s criminal behavior “was not part of her character.” (AR 756.) He continued, “[the misconduct] did not reflect the character fault of someone who committing a theft but is a manifestation of the illness, and in an untreated state, it is the illness that causes her to behave in this manner.” (AR 756.)

[8] Dr. Rothberg advised as of June 9, 217, Real Party’s “mental status examination is completely normal and has been for nearly two years.” (AR 294.) He also reported during that period Real Party had not experienced episodes of mania, periods of confusion or mood instability. (AR 294.)

[9] The Department’s arguments are not always clear. For example, the Department cites various statements of the hearing officer and Chief Parra, but it does not always specify the legal argument the Department is making, if any, related to such statements. (See, e.g., Opening Brief 10-11.)

[10] In addition, there is evidence Real Party believed the Department would be notified of the second arrest because during her arrest, “the sergeant came back and asked [her] for [her] employee number and who [her] captain was and told [her] that he was going to notify them.” (AR 811.)

[11] The Department’s reliance on Landefeld v. Marion General Hospital (6^th Cir. 1993) 994 F.2d 1178; Diffey v. Riverside County Sheriff's Dept. (2000) 84 Cal. App. 4th 1031; and Cate v. State Personnel Bd. (2012) 204 Cal.App14th 270, 285 is also misplaced; the cases are factually and legally distinguishable. (See Opposition 11:5-12:8.)