Davis v. Cnty. of Fresno

232 Cal. Rptr. 3d 324, 22 Cal. App. 5th 1122
CourtCalifornia Court of Appeal, 5th District
DecidedMay 3, 2018
DocketF073151
StatusPublished
Cited by5 cases

This text of 232 Cal. Rptr. 3d 324 (Davis v. Cnty. of Fresno) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Cnty. of Fresno, 232 Cal. Rptr. 3d 324, 22 Cal. App. 5th 1122 (Cal. Ct. App. 2018).

Opinion

FRANSON, J.

*326*1125Plaintiff James Davis was dismissed from his employment as a supervising juvenile correctional officer based on findings of insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct. Davis's administrative appeal of his dismissal was denied by the Civil Service Commission (Commission) of the County of Fresno (County). Davis filed a petition for a writ of administrative mandamus requesting the superior court to set aside the Commission's decision. The superior court denied the petition.

On appeal, Davis contends County violated his constitutional due process rights by failing to provide him a copy of all materials upon which the disciplinary action was based prior to his Skelly hearing.1 Davis also contends County's failure to produce complete copies of reports and witness interviews conducted during the internal affairs investigation into his alleged misconduct violated the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (POBRA).2

*1126We conclude the materials delivered prior to Davis's Skelly hearing satisfied the requirements of due process applicable before disciplinary action is imposed. In contrast, we conclude County violated Davis's right under POBRA to receive "any reports or complaints made by investigators or other persons." (§ 3303, subd. (g).) We interpret the term "any reports" to include the incident reports and interview transcripts attached to a September 2012 memorandum prepared by a special probation investigator who looked into a retaliation complaint made by another officer against Davis. Davis's alleged discourteous treatment of this officer was one of the grounds for his dismissal.

The issue of the appropriate remedy for a violation of POBRA is committed to the broad discretion of the superior court. Here, the record does not compel this court, as a matter of law, to reinstate Davis with backpay. Furthermore, there exists a wide range of remedies and we make no comment as to the merits of any of the possible remedies the trial court might select. Therefore, we remand this matter to the superior court and direct it to decide in the first instance the appropriate remedy.

We therefore reverse the judgment.

FACTS

Davis worked 14 years for the California Highway Patrol before retiring due to a service-related injury. In September 2002, County hired Davis as a full-time juvenile probation officer. In June 2006, Davis was promoted to supervising juvenile correctional officer.

*327Davis was selected as the probation department's employee of the month in March 2004 and September 2008. In October 2008, Davis filed a complaint with the Federal Bureau of Investigation (FBI) alleging a County employee had used excessive force against a juvenile inmate. Davis informed his supervisor of his complaint to the FBI.

In February 2009, Davis was placed on paid administrative leave for alleged misconduct. Without using progressive discipline, County terminated Davis's employment in December 2009. Davis contends County placed him on leave and then fired him in retaliation for filing the complaint with the FBI. In March 2010, the Commission overturned the termination, reinstated Davis to his former position, and found a suspension of six weeks (i.e., 240 *1127hours) without pay was appropriate. Davis asserts the Commission made its decision after hearing County's case in chief and did not wait for him to present evidence.3

September 2012 Memo

On July 5, 2012, Lonny T. Blue, juvenile correctional officer II, was informed by other officers that Davis had instructed them to write incident reports because Blue had brought a juvenile out for recreation on the 4th of July even though the juvenile was on a "High Security 1" contract for having a pencil in his cell. Blue then prepared an incident report dated July 5, 2012, describing what the officers had told him.

On August 3, 2012, Blue filed an internal complaint alleging Davis was retaliating against him by making it difficult for him to carry out his duties and causing him stress. Blue attached a copy of his July 5, 2012, incident report to his complaint. Blue's complaint was investigated by Glenn Johnson, special probation investigator. Johnson asked Blue for additional information supporting his allegation of retaliation and Blue responded by email dated August 21, 2012. Johnson interviewed a number of officers, including Blue and Davis. Davis was interviewed on September 7, 2012.

On September 12, 2012, Johnson completed a memorandum to Linda Penner, chief probation officer, addressing Blue's complaint of retaliation (September 2012 Memo). The September 2012 Memo was 20 pages long without its attachments and described Johnson's investigation as follows:

"This investigation involved the review of numerous documents (each Tabbed for reference), and personal interviews (each transcribed and Tabbed for reference). Witness/interviewee statements are summarized below, however, it is suggested the full transcript be read for a complete review of the interview."

The materials placed under a particular tab might include incident reports, interview transcripts, and emails. For example, Tab 6 to the September 2012 Memo included a transcript of an interview with juvenile correctional officer Angie Marquez and an email to Marquez. It also may have included a copy of an incident report prepared by Marquez and dated July 6, 2012.

Other Events

On October 12, 2012, Davis forwarded to supervising juvenile correctional officer Anthony deLanda an email Davis received from program service *1128manager Melissa *328Madsen. The Madsen email stated a complaint had been made against Davis and directed him not to discuss the matter with anyone other than his chosen representative. As deLanda was not Davis's representative, Davis's forwarding the email to deLanda disobeyed Madsen's directions.

On October 22, 2012, Rick Chavez (who was later promoted to chief probation officer in 2013) observed Davis arrive at the parking lot at 4:13 p.m. Davis had been scheduled to work as watch commander and should have reported at 3:48 p.m. for briefing by the outgoing watch commander. Davis's timesheet reflected that he began work at 3:48 p.m. Subsequently, a private investigator was asked to verify Davis's arrivals and departures on three Sundays when Davis was scheduled to work from 7:48 a.m. until 4:00 p.m. On those Sundays, Davis submitted false timesheets.

On December 9, 2012, while on duty and logged onto the watch commander's computer, Davis completed a timesheet for his wife, a juvenile correctional officer.

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Related

In re J.R.
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Cite This Page — Counsel Stack

Bluebook (online)
232 Cal. Rptr. 3d 324, 22 Cal. App. 5th 1122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-cnty-of-fresno-calctapp5d-2018.