Palmieri v. Cal. State Pers. Bd.

239 Cal. Rptr. 3d 535, 28 Cal. App. 5th 845
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 31, 2018
DocketC082508
StatusPublished
Cited by15 cases

This text of 239 Cal. Rptr. 3d 535 (Palmieri v. Cal. State Pers. Bd.) 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
Palmieri v. Cal. State Pers. Bd., 239 Cal. Rptr. 3d 535, 28 Cal. App. 5th 845 (Cal. Ct. App. 2018).

Opinion

Duarte, Acting P.J.

*848Plaintiff Pamela J. Palmieri--an attorney hired by real party in interest California Department of Corrections and Rehabilitation (Department) in part to conduct disciplinary cases against prison guards--was herself terminated for misconduct. After a 21-day hearing, she was found culpable of four counts of misconduct, one of which was her discourtesy and dishonesty to an administrative law judge (ALJ) after she was taken to task for her tardiness. She appealed her dismissal to the State Personnel Board (Board) which ultimately upheld her termination. The trial court denied her mandamus petition to overturn her dismissal, and she timely appealed. We shall affirm the judgment.

*849BACKGROUND

We largely take the following procedural background and sketch of the facts from the trial court's thorough written decision denying Palmieri's mandamus petition.

A. Procedural Facts

After a 25-year career in private practice, Palmieri began working for the Department in 2007. Her job consisted of prosecution of employee discipline cases. She was served with a notice of dismissal on December 13, 2010, and appealed to the Board. Because some of the Board's own ALJs were potential witnesses, the Board referred the matter to an ALJ with the Office of Administrative Hearings (OAH) "to avoid any conflict, potential conflict, or appearance of impropriety." After a 21-day hearing, ALJ Floyd Shimomura (the OAH ALJ) sustained four of 12 counts but reduced the dismissal to a 30-day suspension.

The Board first adopted the OAH ALJ's decision but then granted the Department's rehearing petition and subsequently adopted the OAH ALJ's factual findings but dismissed Palmieri. Palmieri then filed *538the instant mandamus petition. The trial court denied her petition in May 2016, and she timely appealed.

B. Basis for Discipline

Except as otherwise noted, the four sustained counts (which we have renumbered for clarity) were summarized by the trial court as follows:

Count 1: Dishonesty and Discourtesy

At an administrative hearing held in a prison in June 2009, ALJ Krestoff told the parties the hearing had to be concluded in one day if possible; breaks would be modified, and the hearing would go after 5:00 p.m. if necessary. When the case adjourned for lunch at 1:00 p.m., Krestoff stated the matter would reconvene at 2:00 p.m., but Palmieri was 20 minutes late. When Krestoff noted her tardiness, she argued that Krestoff had not given her enough time for lunch. "A 'heated discussion' then commenced, during which Palmieri informed [Krestoff] that her supervisor stated she could take an hour for lunch." When Krestoff put this on the record, Palmieri stated that because they had been in a prison with no nearby food facilities it was unreasonable to expect her to be able to get lunch and return in an hour. Her tone was "disrespectful, heated, and argumentative." The Board described Palmieri's *850attitude as "lackadaisical" and "nonchalant" and noted that she never retracted her false representation that her supervisor gave her leave to disregard the ALJ's directive regarding taking lunch. The OAH ALJ found Palmieri's conduct alarmed other employees who believed Krestoff would dismiss the case if Palmieri could not be found, as Krestoff had suggested he might do.

Count 2: Inexcusable Neglect of Duty and Discourtesy

In January 2009 Palmieri appeared at a hearing before ALJ R. Brown. She was 13 minutes late the first day and two hours late the second day. She was also late returning from breaks. Brown commented on her tardiness off the record. The next day Palmieri was again late, and Brown placed on the record the need to be on time. When Brown stated tardiness showed lack of respect, "Palmieri told [Brown] she had to look for witnesses and was not responsible if witnesses were not where they were supposed to be when she needed to speak with them. Palmieri never apologized ... and never notified [Brown] she was going to be late or requested additional time to meet with witnesses." The OAH ALJ found Palmieri returned late "numerous" times "not just a few minutes late, but substantially longer." He found her tardiness was "extreme."

Count 3: Insubordination and Willful Disobedience

Twice in August 2007 Palmieri was instructed to keep her Outlook calendar updated. In March and July 2008 her supervisor could not find her during "core hours" and her calendar did not reflect her whereabouts. The Board found Palmieri had rejected the view that she had done anything wrong and argued that as an attorney she could work when she wanted to.

Count 4: Discourtesy

On Friday, April 30, 2010, at 4:30 p.m., Palmieri severely abused a coworker (N.) in the personnel office. She began yelling about a mistake with the withholding in her paycheck, she swore, she pounded her fist, and called the employees "terrible." When N. said she would look into the problem "Palmieri responded that [N.] should make it fast because she was parked at a meter." N. found an error in *539Palmieri's paycheck but did not return to the counter immediately because she was upset and crying. When N. did return, "Palmieri became more irate and yelled that she had turned in her change request on time and demanded that she be appropriately compensated." N. called a supervisor to help her deal with Palmieri. N. arranged for a salary advance for Palmieri but "had to personally deliver the check to Palmieri because Palmieri refused to come to the personnel office to pick it up." N. "described Palmieri's behavior as the most [abusive] and aggressive she has experienced in 15 years" in human resources. The OAH ALJ found Palmieri's "screaming, demanding, and profanity laced tirade at the personnel staff was outrageous and cruel." *851C. Decision of the Board

Based on the above misconduct, the Board found Palmieri should be dismissed because her actions as an attorney representing the Department caused discredit to her employer and could have adversely affected the Department's interests, her persistent tardiness and indifference to the problem reflected waste and inefficiency, her false representation to the ALJ reflected poorly on the Department, and her abuse of the personnel employee was unprofessional and created a hostile work environment. The Board found no mitigating circumstances and found the likelihood of recurrence was great because Palmieri's "seamless excuses do not portray a person who recognizes that her actions are unacceptable."

DISCUSSION

I

Review of the Board's Decisions

Although Palmieri emphasizes that she is raising purely legal questions, we briefly set forth the basic settled rules governing our review.

"[The Board] is a 'statewide administrative agency which is created by, and derives its adjudicatory power from, the state Constitution.

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Bluebook (online)
239 Cal. Rptr. 3d 535, 28 Cal. App. 5th 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmieri-v-cal-state-pers-bd-calctapp5d-2018.