BEASLEY v. DIRECTOR VETERANS AFFAIRS

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Court of Appeal, Fourth District, Division 1, California.

Flora BEASLEY, et al., Plaintiffs, Respondents, and Cross-Appellants, v. STATE PERSONNEL BOARD, Defendant, Appellant, and Cross-Respondent, DIRECTOR of VETERANS AFFAIRS, Real Party in Interest, Appellant, and Cross-Respondent.

Civ. 26152.

Decided: November 30, 1981

George Deukmejian, Atty. Gen., and Matthew P. Boyle, Deputy Atty. Gen. under appointment by the Court of Appeal for defendant, appellant and cross-respondent, State Personnel Board. Philip E. Callis, Sacramento, for plaintiffs, respondents, and cross-appellants. Howell Y. Jackson and H. Dean Stiles, Sacramento, for real party in interest, appellant and cross-respondent, Director of Veterans Affairs.

This tempest in a teapot involves an incident in a state veterans home operated by the Department of Veterans Affairs.   Geriatric nursing assistant Kathy Trood asked hospital aide Flora Beasley to help her with an abusive and difficult 80-year-old male patient.   The patient slapped Beasley's face and said with reference to his inability to engage in sex he might as well have his “dick” cut off.   Beasley responded in jest if he did not behave she would take him down to surgery and have his “dick” cut off.   This remark did not bother the patient.   But it did a supervisor who happened along at that moment and noted Trood and hospital aide Jackie Snipes, nearby, laughed and did nothing to intervene.   Consequently Beasley was fired;  Trood and Snipes were suspended ten days.

After the State Personnel Board upheld the overkill, the three employees went by mandate to the superior court where Beasley's dismissal was ruled too severe and while the action as to Trood and Snipes was harsh it was within discretion.   The court ordered the Board to reconsider its decision as to Beasley because the Board's finding Beasley's attitude toward patients was poor was not supported by substantial evidence and dismissal was an excessive penalty.   The court denied mandate as to Trood and Snipes.   All parties appeal.

In upholding Beasley's dismissal, the Board said:

“The only remaining issue in this matter is to decide whether or not dismissal is too severe a punishment for appellant Beasley.   If her attitude toward patients was not so poor it would be too severe.   However, the appellant fails to realize that elderly, senile and sick patients are entitled to kind, considerate, competent care.   They cannot be abused and ridiculed because they are old and infirm.”

In ordering the Board to reconsider its decision as to Beasley, the court found:

“There is no substantial evidence to support the finding that plaintiff Beasley's attitude toward patients in general was poor.   Except for the incident giving rise to her dismissal, the evidence established a generally outstanding attitude toward patients.   The inappropriate statement made by plaintiff to a patient must be considered in context.   It is obvious that the statement was not a threat but rather was said in jest in an attempt to restrain a combative and aggressive patient.   It was made in response to a similar remark made by the patient.   Removed from that context the statement is clearly inappropriate.   Had there been any suggestion of malice the statement might justify a more general finding but considering the record as a whole, this court cannot find that there is any substantial evidence of a generally poor attitude toward patients, or for that matter, even toward the patient in this case.”

 The Board and the Department contend the court improperly ruled there was no substantial evidence for the Board's finding Beasley's attitude toward patients was poor.   Under Code of Civil Procedure section 1094.5, subdivision (c), the Board's “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”   Here the court accurately characterized the evidence presented at the Board hearing and properly found the Board abused its discretion in finding Beasley's attitude toward patients was poor.   At the Board hearing Beasley presented performance reports showing her past work and attitude toward patients had been satisfactory;  the Board specifically found no earlier punitive actions against her.   The Department presented no evidence Beasley's attitude toward patients had been poor;  indeed, at the court hearing counsel for the Board and the Department conceded the only evidence of Beasley's attitude was the single incident with the 80-year-old patient.   The court properly found this incident, when viewed in its context and in light of the whole record, did not support the Board's finding Beasley's attitude toward patients was poor.   Where, as here, the Board's finding is devoid of evidentiary support, the court may properly reverse the Board's order as not supported by substantial evidence in light of the whole record (Lorimore v. State Personnel Board, 232 Cal.App.2d 183, 187, 42 Cal.Rptr. 640).

 Under Government Code section 19572, subdivisions (m) and (t), a public employee may be disciplined for “discourteous treatment of the public” and “failure of good behavior ․ of such a nature that it causes discredit to his agency or his employment.”   Beasley contends the court erred in finding her isolated remark to a patient was actionable misconduct under section 19572.   Whether a public employee's conduct constitutes “discourteous treatment of the public” depends upon the “nature of the misbehavior and its effect on the public service.”  (Blake v. State Personnel Board, 25 Cal.App.3d 541, 550, 102 Cal.Rptr. 50.)   Similarly, conduct is actionable under section 19572, subdivision (t), only where it reflects discredit on the agency or the employee's position.  (See Gee v. California State Personnel Bd., 5 Cal.App.3d 713, 719, 85 Cal.Rptr. 762.)   Here while trying to restrain an abusive and combative patient who had just slapped her face, Beasley responded in jest to his comments;  her remark did not bother the patient.   Beasley's conduct under the circumstances was reasonable, even if her words were in questionable taste.   Her remark caused minimal harm, if any, to the public service.   Viewed in its context and in light of the whole record, Beasley's comment was not misconduct under section 19572.

 Trood and Snipes were suspended for ten days for laughing at Beasley's remark and not intervening.   They contend the court erred in finding they committed actionable misconduct under Government Code section 19572, subdivisions (m) and (t).   The Department's only witness at the Board hearing testified Trood and Snipes “sort of laughed” at Beasley's remark;  however, the Department presented no evidence their laughing offended the patient.   Impropriety, if any, in their behavior was minimal and their laughter caused no harm.   Moreover, the Department presented no evidence Trood and Snipes knew Beasley intended to make her remark to the patient.   Under these circumstances, once Beasley made the comment there was nothing for Trood and Snipes to do.   The Department presented no evidence of any need to intervene;  indeed the evidence showed Beasley's remark was not a threat, but merely a reply in jest to the patient's comments, and the patient did not react in fear.   Viewed in its context and in light of the whole record, the conduct of Trood and Snipes was not improper under Government Code section 19572, subdivisions (m) and (t).

The judgment as to Beasley is modified to order the Board to reinstate her to employment with the Department and restore her lost benefits and lost pay less mitigation.   As modified, the judgment as to Beasley is affirmed.   The judgment as to Trood and Snipes is reversed with directions to the superior court to order the Board to restore their lost pay and benefits.

GERALD BROWN, Presiding Justice.

WIENER and WORK, JJ., concur. Hearing denied; MOSK and NEWMAN, JJ., dissenting.