Kuhn v. Department of General Services

• Decision Date: 31 January 1994
• Docket Number: C013437,Nos. C011756,s. C011756
• Citation: 29 Cal.Rptr.2d 191,22 Cal.App.4th 1627
• Court: California Court of Appeals Court of Appeals
• Parties: Russell KUHN, Plaintiff and Appellant, v. DEPARTMENT OF GENERAL SERVICES, Defendant and Respondent. DEPARTMENT OF GENERAL SERVICES, Plaintiff, Appellant, and Cross-Respondent, v. STATE PERSONNEL BOARD, Defendant. Russell Kuhn, Real Party in Interest, Respondent, and Cross-Appellant.

Page 191

29 Cal.Rptr.2d 191

22 Cal.App.4th 1627

Russell KUHN, Plaintiff and Appellant, v. DEPARTMENT OF GENERAL SERVICES, Defendant and Respondent.

DEPARTMENT OF GENERAL SERVICES, Plaintiff, Appellant, and Cross-Respondent, v. STATE PERSONNEL BOARD, Defendant.

Russell Kuhn, Real Party in Interest, Respondent, and Cross-Appellant.

Nos. C011756, C013437.

Court of Appeal, Third District, California.

Jan. 31, 1994.

Certified for Partial Publication ¹

As Modified March 2, 1994.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Henry Ullerich, Sr. Asst. Atty. Gen., Richard Thomson, Supervising Deputy Atty. Gen., Vincent J. Scally, Jr., Deputy Atty. Gen., for petitioners, appellants and cross-respondents.

No appearance for defendant.

Darrell S. Steinberg, Millbrae, for real party in interest, respondent and cross-appellant.

DAVIS, Associate Justice.

Government Code section 19253.5 (undesignated section references will be to this code) authorizes an agency subject to civil service rules to determine if an employee is medically incapacitated for duty and then demote, transfer, or terminate the employee. Subdivision (h) accords the employee reinstatement rights upon rehabilitation, subject to "satisfactory completion of a new probationary period" if one is imposed. ²

In the present appeal, the Department of General Services (DGS) "medically terminated" Russell Kuhn pursuant to this statute. Mr. Kuhn obtained reinstatement subject to a new probationary period. DGS later rejected him during the probationary period. The State Personnel Board (Board) determined it was bad faith on the part of DGS to reject Mr. Kuhn as an ordinary probationer (§ 19173) rather than as a "medical probationer" under section 19253.5, where he We conclude that when an employee is reinstated from medical termination subject to a new probationary period, an agency is not limited to another medical termination--it may reject the employee for any of the reasons specified in the ordinary probation statute (§ 19173). The agency's choice between these two lawful alternatives cannot constitute "bad faith" permitting the Board to revoke the rejection (§ 19175) absent evidence the agency made the choice with the intention of illegitimately thwarting the employee's reinstatement rights. As there is no such evidence in the case before us, there is no evidence supporting the Board's revocation. We consequently shall reverse with directions to issue the writ prayed for by DGS. This resolution moots Mr. Kuhn's cross-appeal, which we shall dismiss.

                would have reinstatement rights.  The Board revoked the rejection and awarded back pay.  DGS filed a writ of administrative mandamus.  (Code Civ.Proc., § 1094.5.)   The trial court upheld the revocation of the probationary rejection, but vacated the award of back pay.  The parties have cross-appealed from their respective disappointments. 3
                

STANDARD OF REVIEW

"[U]nder our statutory scheme for employee discipline the appointing power is vested with the initial authority to determine and impose appropriate discipline. The Board in turn is vested with the authority to review the appointing power's action. But ... the Board's reviewing authority is not limited to that equivalent to appellate judicial review. The Board is entitled to weigh the evidence and determine the facts and to exercise discretion in determining the sufficiency of the charges.... [p] ... There are ... three bases for modification or revocation of the appointing power's imposition of discipline: (1) the evidence does not establish the fact of the alleged cause for discipline; (2) the employee was justified; or (3) the cause for discipline is proven but is insufficient to support the level of punitive action taken. Unless one of these [bases] is present the appointing power's action must stand." (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 827, 284 Cal.Rptr. 839.)

In reviewing a decision of the Board on a petition for administrative mandamus, we stand in the same shoes as the trial court, applying the substantial evidence rule. (Pan v. State Personnel Bd. (1986) 180 Cal.App.3d 351, 357, 225 Cal.Rptr. 682.) "[I]n the absence of any substantial evidence [to support] its findings, the Board has no discretion to modify or revoke the discipline imposed by the appointing power." (Department of Parks & Recreation, supra, 233 Cal.App.3d at p. 831, 284 Cal.Rptr. 839.)

There are two aspects to a review of the legal sufficiency of the evidence. First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. ⁴ (Estate of Bristol (1943) 23 Cal.2d 221, 223, 143 P.2d 689.) Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our "power" begins and ends with a determination that there is substantial evidence (Bristol, supra, 23 Cal.2d at p. 223, 143 P.2d 689), ⁵ this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. The Court of Appeal "was not created ... merely to echo the determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review." (Bowman v.

                Board of Pension Commissioners (1984) 155 Cal.App.3d 937, 944, 202 Cal.Rptr. 505.)  "[I]f the word 'substantial' [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance.  Obviously the word cannot be deemed synonymous with 'any' evidence.  It must be reasonable ..., credible, and of solid value...."  (Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.)   The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record.  (People v. Johnson (1980) 26 Cal.3d 557, 577-578, 162 Cal.Rptr. 431, 606 P.2d 738.)   While substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" (Louis & Diederich, Inc. v. Cambridge European Imports, Inc.  (1987) 189 Cal.App.3d 1574, 1584, 234 Cal.Rptr. 889);  inferences that are the result of mere speculation or conjecture cannot support a finding (id. at p. 1585, 234 Cal.Rptr. 889;  Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655, 5 Cal.Rptr. 657)
                

FACTS

The pertinent facts in the case before us are not in dispute. They are gleaned from the 1990 administrative hearings, the exhibits admitted at these hearings, and the several Board decisions in the record.

DGS first hired Mr. Kuhn in February 1982, and he became a Bookbinder I in July 1984. In the spring of 1987, his psychiatrist determined that the mental illness from which the then-40-year-old had suffered since his early twenties was a bipolar affective disorder (i.e., he was a "manic-depressive"), and he began taking lithium carbonate. However, by November 1987 Mr. Kuhn was making threats of violence against his supervisor; after a medical evaluation that concluded he was unfit for any position in the agency, DGS medically terminated him (§ 19253.5, subd. (d).) Mr. Kuhn appealed the medical termination to the Board. (§ 19253.5, subd. (f).) He later petitioned for reinstatement in March 1988.

While both of these matters were pending before the Board, DGS referred Mr. Kuhn to Dr. Kaldor, a psychiatrist. After examining Mr. Kuhn and performing an on-site consultation with Mr. Kuhn's supervisors (whom the psychiatrist found to be nonjudgmental and cooperative), Dr. Kaldor concluded Mr. Kuhn was in a stable remission from his illness and was fit to return to duty subject to certain conditions. Subsequently, Mr. Kuhn and DGS came to an agreement under which he was reinstated effective October 1988, subject to those conditions. This agreement reserved for Board resolution two issues: the validity of the medical termination, and the condition of his reinstatement that required him to serve a new probationary period.

In its November 1988 decision, the Board upheld the validity of the medical termination, and also concluded, "The reinstatement statute does provide authority for the Board to reinstate an employee from medical termination subject to a new probationary period. In this instance the requirement is reasonable. [Mr. Kuhn]'s reinstatement effective October 26, 1988, should be subject to a new probationary period."

During the period following his reinstatement, Mr. Kuhn had difficulty satisfying the requirements of his position and was excessively absent. It is undisputed that his shortcomings were a function of either his psychiatric disorder, his problems adjusting to the dosage of lithium, or voluntary hospitalizations at psychiatric facilities.

After a January 1989 hospitalization, his treating psychiatrist (Dr. Pleasant) released Mr. Kuhn for return to work. DGS again referred Mr. Kuhn to Dr. Kaldor in early February 1989. Dr. Kaldor stated there was "a gradual deterioration in the ability of Mr. Kuhn to maintain a level of behavioral stability." The psychiatrist noted Mr. Kuhn was developing "an increasingly persecutory and litigious attitude regarding his employer." Projecting his anger and fears on those around him, Mr. Kuhn created "an untenable situation at work. This is not a case of failure by his employer to accommodate or respond to Mr. Kuhn's needs but rather it is Mr. Kuhn's mood instability based on the natural history of his Bipolar Mood Disorder which interferes with his ability to relate to In October 1989, DGS sent Mr. Kuhn a Letter of Rejection During Probation. As the reasons for the action, DGS cited his "difficulty working with numbers, counting, sequencing and sorting mail.... keeping pace with production equipment ... [and] doing sloppy work"; his below-standard interpersonal skills, which included "overreact[ion] to small errors made by co-workers" and "exhibit[ion...