Home/California Court of Appeal/Seibert v. City of San Jose

Seibert v. City of San Jose

247 Cal. App. 4th 1027, 202 Cal. Rptr. 3d 890, 2016 WL 3085205, 2016 Cal. App. LEXIS 435
CourtCalifornia Court of Appeal
DecidedMay 31, 2016
DocketH040268
StatusPublished
Cited by11 cases

This text of 247 Cal. App. 4th 1027 (Seibert v. City of San Jose) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seibert v. City of San Jose, 247 Cal. App. 4th 1027, 202 Cal. Rptr. 3d 890, 2016 WL 3085205, 2016 Cal. App. LEXIS 435 (Cal. Ct. App. 2016).

Opinion

Opinion

RUSHING, P. J.

Plaintiff Grant Seibert petitioned the superior court for a writ of administrative mandamus to set aside a decision by the Civil Service Commission (Commission) of the City of San Jose (City) denying his appeal from a decision by the San Jose Fire Department (Department) to terminate his employment as a firefighter and paramedic. The dismissal was based upon five charges of misconduct, two of which stemmed from his exchange of salacious e-mails during work hours with a 16-year-old girl who had visited the station, and three of which stemmed from allegedly improper conduct toward a female coworker. The trial court set aside the Commission’s decision on all but one of the charges, and found that charge insufficient to sustain the level of discipline imposed. Both parties have appealed. We hold that (1) the Commission was not deprived of jurisdiction by the belated filing of the notice of discipline on which the challenged dismissal was based; (2) the trial court properly concluded that the e-mail exchange as alleged in one charge, which made no reference to the recipient’s age, could not be found to violate any applicable rule or policy; (3) the court permissibly found, on conflicting evidence, that Seibert lacked actual or constructive knowledge of the recipient’s age; (4) the court erred by refusing to consider the contents of interview transcripts which constituted the chief evidence of misconduct toward a female coworker; and (5) the court should have directed that any further administrative proceedings be heard and determined by an administrative law judge. We will reverse the judgment for further proceedings consistent with our opinion.

Background

I. Salacious E-mails

On the morning of Thanksgiving Day 2008, a female high school student who lived in the neighborhood of fire station 28 brought a cookie pie to the *1031 firefighters there. The girl, to whom we shall refer as “N.C.,” was in 10th grade at the time, and a few months short of her 17th birthday. She was given a tour of the station by respondent and cross-appellant Seibert. At its conclusion he took a picture of her next to a fire engine. He obtained her e-mail address so that he could send the picture to her. At 11:00 a.m. he sent her the picture and thanked her for the baked goods, thus commencing the exchange of e-mails that ultimately included the messages underlying the first set of charges here.

On December 15, 2008, N.C. again appeared at the station, this time in the company of two or three male classmates. Seibert gave the youths a tour of the station. At least one of them played junior varsity football at their high school, and recognized a photograph of the station supervisor, Captain Leong, who was a varsity football coach at the same school. He was summoned to greet them.

While at the station, N.C. apparently injured her elbow. At 2:54 p.m., after she left, she e-mailed Seibert, describing her injury. This led to an exchange of e-mails over at least a five-hour period, which grew increasingly risqué while playing on the conceit that Seibert might use his paramedic skills to treat the injury (all spelling and punctuation as in original): 1

*1032

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Cite This Page — Counsel Stack

Bluebook (online)
247 Cal. App. 4th 1027, 202 Cal. Rptr. 3d 890, 2016 WL 3085205, 2016 Cal. App. LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seibert-v-city-of-san-jose-calctapp-2016.