Dep't of Corr. v. State Pers. Bd.

• Court: California Court of Appeals
• Citation: Dep't of Corr. v. State Pers. Bd., 70 Cal.App.5th 117 (Cal. App. 2021)
• Decision Date: 08 October 2021
• Docket Number: E072892.
• Parties: DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and Respondent. JENARO CARRASCO, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent

70 Cal.App.5th 117

DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and Respondent.

JENARO CARRASCO, Plaintiff and Appellant,

v.STATE PERSONNEL BOARD, Defendant and Respondent

No. E072892.

Court of Appeals of California, Fourth District, Division Two.

October 8, 2021.

OPINION

McKINSTER, Acting P. J.—

Plaintiff and appellant Jenaro Carrasco worked as a parole agent for real party in interest Department of Corrections and Rehabilitation (department) for five years. He was then promoted to the position of special agent and was subject to a 12-month probationary period. The department served Carrasco with a notice of rejection before the end of the probationary period and stated six reasons for the rejection. Carrasco challenged his rejection before defendant and respondent the State Personnel Board (the board) and, when the board upheld his rejection, he petitioned the superior court for a writ of administrative mandamus.

At the conclusion of the administrative and superior court proceedings, only two of the reasons given for Carrasco's rejection were found to have been supported by substantial evidence. However, both the board and the superior court concluded Government Code¹ section 19175—the statute that governs the board's review of the decision to reject a probationer—does not mandate reinstatement if less than all the reasons given for the rejection are upheld. In addition, the board and the superior court concluded the department had not acted in bad faith when it rejected Carrasco. Therefore, the superior court denied Carrasco's petition.

In this appeal from the judgment denying Carrasco's petition, we hold: (1) section 19175, subdivision (d), does not require the board to reinstate a rejected probationer if at least one of the reasons given for the rejection is supported by substantial evidence; (2) the administrative record supports the board's findings that substantial evidence supported the two remaining reasons for Carrasco's rejection; and (3) the record supports the board's findings that the department did not act in bad faith when it rejected Carrasco. We affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Rejection of Carrasco During Probation.

After 20 years of service as a probation officer, in April 2008, Carrasco was hired by the department as a parole agent. On July 31, 2013, he was promoted to special agent within the Office of Correctional Safety (OCS) Special Services Unit. Carrasco was subject to a 12-month probationary period for his new position, and he reported for duty on August 1, 2013.

On June 23, 2014, the department served Carrasco with a "Notice of Rejection During Probation Period." The notice listed six reasons for Carrasco's rejection: (1) he failed to exit his vehicle to assist in a foot pursuit of an escapee in September 2013; (2) he failed to follow instructions during a tactical training exercise conducted in January 2014, and he was discourteous and refused to follow instructions from his supervisor; (3) he failed to follow instructions from his supervisor in October 2013 to work on a "cold case" and neglected to "develop any investigative work on the case" from the time of the instructions to February 2014; (4) he failed to timely submit a report within six business days of a March 2014 arrest, falsified the report to indicate it had been timely submitted, and failed to include necessary information; (5) in April 2014, he failed to respond to "`call-outs'" from his supervisor and a fellow agent for assistance in capturing an escapee while he was on "`call-out'" rotation, and he had not previously submitted a request to be excused from "`call-out'" duty; and (6) he failed to follow a "verbal agreed-upon protocol" while attending an April 2014 meeting at the Orange Police Department.

B. Administrative Appeal and Evidentiary Hearing.

Carrasco appealed the rejection, and an administrative law judge (ALJ) with the board conducted an investigatory hearing on January 22, 2015.

1. Reason 2: Simunition® training.²

With respect to reason 2 for Carrasco's rejection, the notice of rejection stated that, during Simunition®³ training conducted on January 25, 2014, he "failed to follow instructions" from his instructors, special agents Mory and Marks, and he was "discourteous when [he] refused to accept corrective suggestions" about his performance during a room-entry exercise. The notice quoted a document entitled "Special Agent Essential Functions," which provides, inter alia, a special agent "[m]ust be able to accept constructive criticism, feedback and use supervisory direction positively." Finally, the notice stated Carrasco "made excuses throughout this training session for not following training procedures that [his] instructors exposed [him] to," he was "argumentative with [his] instructors when they provided constructive criticism and feedback," and he "failed to accept responsibility for [his] training mistakes." All this "demonstrate[ed] [his] inability to utilize supervisory direction positively by working toward improvement to align [himself] with [the department's] mission and OCS's safety procedures."

Parole agent Lee was present during the training exercise. He testified that, neither during the room-entry exercise nor during the "briefing after each scenario," did he observe Carrasco to be belligerent or hear him say anything he would characterize as discourteous. When asked if he heard Carrasco "talk over" the instructors during the debriefings, Lee testified, "No. I don't know. No." Lee explained he "was there" during the training but he was not a trainee—he was one of the "role players" to "get shot [in] the scenario," and was not one of the agents "going through the houses." When asked again whether he heard Carrasco say anything discourteous, Lee answered, "I hardly left that house. I was inside the house ... preparing for each scenario." Finally, Lee testified he was not present "all the times" that Marks and Mory spoke to Carrasco.

Carrasco testified he had no conversations with Marks or Mory during the training, and he did not say anything that could be characterized as discourteous. Carrasco described the room-entry exercise, during which he kicked open a door and, when it did not close all the way, he instinctively pointed his weapon at the door because there might be someone behind it with a weapon. He told his team member, "check the door." Carrasco testified that, after the exercise, he was told he "should have rode [sic] the door and come around the door and confront the subject" himself. This concerned and confused Carrasco. "I asked if I come around and face the subject. I'm in the room with him by myself with him and my gun's pointing toward my team members. That's the only statement I made." Carrasco denied that he said he "knew better or anything of that nature," or that he was "trying to be a know-it-all."

Marks testified the training exercise involved tactical officers entering buildings and rooms under various dangerous scenarios. During the training, he became concerned that Carrasco had difficulty grasping some of the concepts and procedures the course was designed to teach. Marks tried to explain to Carrasco "how things needed to be done" and "how we normally do them and what's safe and what's not safe," by "making corrections and whatnot." Carrasco "appeared to be resistant" to correction. Marks and Mory believed Carrasco had missed "a threat to the team that he didn't address properly" but, "when it was explained to him, he said that he didn't believe he had done that. So from there on it was somewhat of a no, I didn't." Because Carrasco was a new special agent, Marks thought that if Carrasco "did something wrong, [he would] want to make the correction. You can't correct something if someone doesn't believe he did something incorrect."

More specifically, Marks testified that, during the "room-entry" exercise, he observed Carrasco encounter a person behind a door but, instead of "fully addressing it where he wasn't sure if someone was behind it," he "yelled out for another agent to address the threat" and "he passed the door." According to Marks, this concerned him because "[w]e always address threats as we encounter them. So if I'm the first person at the front door and there's a threat there, I have to address it. If I don't, the person behind me may get shot or hurt...." Marks and Mory addressed their concerns about Carrasco's performance during a group "debriefing of the scenario." They told Carrasco that "he could have rode [sic] the door"—pushed his body against the door—"to make sure that person couldn't come outside." But, he "refused to listen" and "talk[ed] over" them while trying to explain why he believed he had acted correctly during the exercise.

Rather than stop the class to further address Carrasco, Marks continued the class while Mory "pulled [Carrasco] aside and spoke to him one-on-one." Marks overhead some of the conversation, and "it didn't seem like [Carrasco] was ready to move on." When asked if Carrasco had been discourteous, Marks testified he was "somewhat resistant to listening, is what I would say. Somewhat of I've been there, done that." Carrasco was not rude, and he did not use foul language. He "was defending what he did" and "was saying he didn't do what we said he did." According to Marks, "we couldn't get to the corrective discussion because he said it never happened, and we observed it to happen."

In a March 12, 2014 memorandum to senior special agent Santos, Marks wrote that, when Carrasco continued to talk over Marks and Mory and continued to insist on explaining why he believed he had done nothing wrong during the room-entry exercise, Marks explained to Carrasco "that he would need to follow training directives without continually making excuses." However, "[d]uring other scenarios, SA Carrasco made additional excuses for not following the training procedures that...