Olson v. State Personnel Board
Filed 7/23/13 Olson v. State Personnel Board CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Lassen)
----
KEVIN OLSON,
Plaintiff and Appellant,
v.
STATE PERSONNEL BOARD,
Defendant and Respondent;
DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,
Real Parties in
Interest and
Respondents.
C067444
(Super. Ct. No. 49858)
Plaintiff Kevin
Olson, a former correctional officer with the
(CDCR), appeals the trial court’s denial of his writ of administrative mandamus
challenging his dismissal from CDCR employment for misconduct. Olson contends the trial court erred in
finding that his testimony in the administrative proceedings was not
credible. He further contends the trial court
erred in sustaining the administrative law judge’s determination that Olson
used unnecessary force against an inmate and was dishonest.
We find no
error and affirm.
Olson was
dismissed from his position as a correctional officer after the CDCR found he
assisted a second correctional officer, Robert Kramer, in the use of
unnecessary and excessive force on a disruptive inmate. The CDCR also found Olson failed to intervene
or deter Kramer’s use of force and failed to report the incident. Instead, Olson tried to ensure that the
incident remained a secret by destroying a medical report, deceiving medical
staff, making false statements during an investigative interview, and
attempting to dissuade a junior correctional officer, Bobbie Williams, from
reporting the misconduct during her own investigative interview.
Kramer was
also dismissed. He and Olson both
appealed their adverse actions to respondent State Personnel Board (the Board)
and the consolidated appeals were heard by an administrative law judge (ALJ).
On January 12, 2007, Correctional
Officer Williams was among the officers working at High Desert State Prison who
responded to Building A-3 after inmate Saechao assaulted a correctional
officer. Saechao was taken from Building
A-3 to a holding cell in Building A-5.
Prison staff psychologist Dr. Virgil Crawford and counselor Dianna
Fleetwood were in the area adjacent to the holding cell where the officers took
Saechao.
Williams
testified that when Kramer came into Building A-5 ahead of Saechao and his
escort, she heard him tell Crawford and Fleetwood, “if you don’t want to see
what’s going on, you should leave†or words to that effect. She then heard Fleetwood respond to Kramer,
“then don’t do it,†or words to that effect.
Williams
said Saechao was placed on the floor in front of the holding cell. Williams saw Kramer put his foot on Saechao’s
face. After Saechao was in the cell, he
yelled and howled and called out other inmates, using racial slurs. The officers were frustrated and angry. Kramer told Saechao to “[s]hut the fuck
up.†Saechao also pulled down his pants
and began simulating sex acts.
Williams
testified that Kramer went into the holding cell to calm Saechao down because
his behavior was making the other inmates disruptive. Saechao was facing the back of the cell. While in the cell, Kramer put his hand over
Saechao’s mouth. As Kramer was backing
out of the cell, he pushed Saechao’s head against the holding cell. Olson then went into the cell and used his
hand to push Saechao’s head up against the back of the cell. Immediately after the incident, Olson said he
did not trust Fleetwood or the nurse and told Williams to “block their view if
it ever happened again.â€
At
Williams’s request, a nurse completed a “7219†injury report form on Saechao
shortly after he was placed in the holding cell. The report indicated Saechao had no visible
injuries.
he was going to discard that injury report.
While Williams did not know why Olson intended to discard the report,
she testified that it made no sense that Saechao had no injuries at the time
the report was written because he had been carried and placed down several
times between Building A-3 and Building A-5.
A second
7219 injury report form, prepared after Saechao was later transferred from
Building A-5 to a mental health unit, showed several injuries on Saechao’s
body, including a lump on the right side of his forehead and a bruise a little
lower on the right side of his forehead.
Williams
testified about her relationship with Kramer and Olson. She said she had been trained by them, had
good relationships with them, looked up to them, considered them mentors, and
even went out drinking with them.
Williams had only been on the job a year at the time of the incident and
was uncomfortable about what she had seen and whether it constituted
force. Consequently, Williams consulted
another officer, who advised her to report the incident. She did, and a week after the event, Williams
wrote a memorandum about the incident, which she submitted to her superiors,
and which was admitted into evidence at the hearing. In the memo, Williams stated that before she
was interviewed by Captain Gower about the event, Olson told her “not to biteâ€
on the investigators’ questions because they were “just fishing.†Olson also reminded Williams, “we don’t go
inside inmates[’] cells.â€
The
testimony of Crawford and Fleetwood corroborated portions of Williams’s
testimony. They testified that when
Saechao was brought into the building, Kramer said something like they “might
not want to be there†or “might not want to see what happens†or “might want to
leave. You’re not going to want to see
this.†Kramer was frustrated and
angry. The comment alarmed Crawford. Crawford said that after hearing that
comment, there was “no way in the world†he and Fleetwood were going to
leave. Fleetwood responded to Kramer’s
comment by saying something like “nothing should happen that [they] could not
see†or “you shouldn’t be doing it then.â€
Fleetwood heard Kramer tell Saechao to “shut the fuck up†multiple
times. Later, as Crawford passed by, he
saw Kramer in Saechao’s cell, telling Saechao to “shut the fuck up,†and saw
someone, probably Kramer, with his hand over Saechao’s mouth.
Olson
testified on his own behalf. He
testified that he and Kramer entered Saechao’s holding cell only because
Saechao’s boxer shorts were down and they had been ordered to pull up his
shorts. Olson said he placed one hand on
Saechao’s back and the other hand on his leg near the restraints to keep him
from spinning, so that Kramer could pull up Saechao’s shorts. Olson denied that he or Kramer used force
against Saechao or touched Saechao’s head.
He denied seeing Kramer put his hand on Saechao’s mouth, but also said
that while he was holding Saechao, he was bent over and could not see above hip
level. During his internal affairs
interrogation, Olson denied that anyone had used unnecessary or excessive force
against Saechao or that Kramer had cursed Saechao.
Olson explained why he threw away
the first injury report. He said he
reviewed the report and concluded it was incomplete. He said that after Saechao assaulted staff in
Building A-3, there were 10 or 15 officers on top of him. Saechao resisted the officers, who escorted
him all the way to the cell in Building A-5.
An officer was injured in the process.
Olson felt there was “no way†Saechao would not have “abrasions, scrape
marks on the elbows, scrape marks on the knees from the leg restraints.†Olson showed Medical Technician Assistant
Watkins the first injury report and Watkins said it was not correct, because
she had seen injuries on Saechao.
Watkins contacted the mental health unit where Saechao had been taken
and requested that another injury examination and report be done as soon as
Saechao arrived in the unit. Olson
testified that after the second report was done, Watkins told Olson to discard
the original report.
Seven days
after the incident, Olson was called into Captain Gower’s office. Gower asked Olson whether he had anything he
wanted to get off his chest and warned him that officers had been fired
for not telling the truth. Gower also
asked him whether he was familiar with the code of silence. Olson asked if he needed a union
representative, and after being denied representation, he was excused to
leave. Before he left, Gower told Olson
to tell Sergeant Jimenez and Williams not to leave the building because they
would be called to his office. Olson
testified that he then told Williams, “[y]ou need to be really careful†when
interviewed by Gower and that she should ask for a union representative because
he had “got hit on [the] code of silence†and was denied a union
representative. Olson denied telling
Williams the investigators were “simply fishing†and not to “bite on their
questions,†or warning her that staff do not enter cells. He said this was the only conversation he had
with Williams about being interviewed.
He denied knowing that Gower had been asking about the Saechao incident
when questioned in Gower’s office and denied any attempt to influence
Williams’s report to investigators.
name="_ftnref3" title="">[3]
of Law
Following
the administrative proceedings, the ALJ issued a proposed decision in which she
found that Olson “pushed [Saechao]’s head up against the wall of the [holding]
cell†and, by doing so, used unnecessary and excessive force against the
inmate. The ALJ also found that Olson
lied about the use of force, lied about not hearing Kramer use profanity, and
credited Williams’s testimony regarding what Olson told her before her
interview with Captain Gower.
name="_ftnref4" title="">[4] The ALJ concluded that Olson attempted to
cover up what had occurred, his actions reflected the improper use of force, as
well as dishonesty, and his failure to accept and admit responsibility showed a
strong likelihood this conduct could recur.
The ALJ found that Olson had properly been dismissed.
In making
her factual findings, the ALJ also made express credibility determinations. Noting in her proposed opinion that the
testimony of Olson and Kramer stood “in direct contradiction to the testimony
of at least two other witnesses,†Williams and Crawford, the ALJ credited
Williams’s testimony over Olson’s because Williams had “no reason to lie†and
there was no evidence impugning her character, as the only “bad factsâ€
concerning Williams were her own admissions she failed to immediately report
the incident. Because Williams considered
Olson a mentor, had a close relationship with him, and held him in high regard,
the ALJ concluded Williams had no motive to lie against Olson. To the contrary, given her relationship, she
would have been reluctant to provide negative information about him. On the other hand, Olson and Kramer had a
motive to lie about using force, given that they were subject to
dismissal. The ALJ found Olson’s
testimony that he never heard Kramer use profanity to be “far fetched†because
Kramer admitted using profanity, Olson was in close proximity and Kramer’s
words were heard by Fleetwood, who was sitting in her office on the other side
of a wall.
The ALJ
also concluded that Williams’s credibility was bolstered by the testimony of
Crawford and Fleetwood regarding Kramer’s statement they were “not going to
want to see this.†Williams’s
credibility was further supported by Crawford’s testimony that he also saw
Kramer with his hand over Saechao’s mouth.
The Board
adopted the ALJ’s factual findings and legal conclusions in their entirety, and
the ALJ’s proposed decision became the decision of the Board.
Olson then brought the instant
petition for a writ of administrative mandate.
The trial court denied the petition.
In its written statement of decision, the trial court noted that an
agency’s credibility determinations are entitled to deference, and found that
Officer Williams’s “neutral eye witness†[sic]
testimony that Olson and Kramer entered the holding cell and pushed Saechao’s
head against the wall constituted substantial evidence to support the
administrative findings.
On appeal, Olson takes issue with
the trial court’s statement of decision, contending the trial court “committed
prejudicial error in finding that [his] testimony was not credible.†He also contends the trial court erred in
“sustaining the ALJ’s determination†that Olson used unnecessary force.
Standard of Review
The Board
must give a credibility determination by the ALJ great weight if it is based on
some aspect of the demeanor, manner, or attitude of the witness which the ALJ
has identified. (Gov. Code,
§ 11425.50, subd. (b); California
Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th
575, 586-589 (California Youth Authority).) The Board may exercise its independent
judgment as to all other factual findings.
(Ibid.) Under a grant of constitutional authority
(Cal. Const., art. VII, §§ 2, 3), the Board acts in an adjudicatory
capacity when it reviews disciplinary actions, “much as a trial court would in
an ordinary judicial proceedingâ€; it “makes factual findings and exercises
discretion on matters within its jurisdiction†and “[o]n review the decisions
of the Board are entitled to judicial deference.†(Department
of Parks & Recreation v. State Personnel Bd. (1991)
233 Cal.App.3d 813, 823; accord, California
Youth Authority, supra,
104 Cal.App.4th at p. 584.)
At the next
level of review, the trial court reviews the decision of the Board. The court may reject the Board’s factual
findings if the Board failed to give sufficient weight to a credibility finding
by the ALJ that was supported by an identified aspect of the demeanor, manner,
or attitude of the witness. (See
p. 588.) The trial court also may
reject the Board’s factual findings if they are not supported by substantial
evidence; otherwise, it must accept them.
(Code Civ. Proc., § 1094.5, subd. (c); Coleman v. Department of Personnel Administration (1991)
52 Cal.3d 1102, 1125-1126.)
Finally, at
the third level, we review the trial court’s decision. We must decide, among other things, whether
the trial court applied the substantial evidence standard correctly. However, we must also accept the Board’s
factual findings, unless either the Board used an incorrect standard of review
(which is not alleged here), or its findings are not supported by substantial
evidence. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404;
“ ‘Substantial
evidence’ is relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.
[Citation.] Such evidence must be
reasonable, credible, and of solid value.â€
(California Youth Authority,
pp. 584-585.) “On review the
decisions of [the Board] are entitled to judicial deference. The record must be viewed in a light most
favorable to the decision of [the Board] and its factual findings must be
upheld if they are supported by substantial evidence.†(Id.
at p. 584.) In applying the
substantial evidence test to Board decisions, “ ‘[w]e do not reweigh the
evidence; we indulge all presumptions and resolve all conflicts in favor of the
board’s decision. Its findings come
before us “with a strong presumption as to their correctness and
regularity.†[Citation.] We do not substitute our own judgment if the
board’s decision “ ‘ “is one which could have been made by reasonable
people. . . .â€
[Citation.]’ †’ â€
(Id. at p. 584.) However, in assessing whether substantial
evidence in Board proceedings exists, we do not isolate and consider only the
evidence which supports the Board’s findings.
“ ‘[W]e consider all evidence presented, including that which
fairly detracts from the evidence supporting the Board’s determination.’ â€
(Id. at p. 586.)
Substantial Evidence Analysis
We first
note, and set straight, a misconception that appears in Olson’s appellate
brief. He erroneously states that the
trial court found that Olson’s testimony was not credible because of the ALJ’s
determination that it was in direct conflict with that of Williams. In fact, the trial court merely reviewed the
factual findings and credibility determinations made by the ALJ and adopted by
the Board. The court did not issue its
own factual findings or credibility determinations.
Applying
the principles we have outlined, we conclude the Board’s factual findings that
Olson pushed Saechao’s head against the holding cell, and thereafter attempted
to influence Williams to cover up the incident are supported by the testimony
of Williams, and that testimony provides the requisite substantial
evidence. Williams testified she saw
Olson use his hand to push Saechao’s head against the holding cell, and
reported that Olson told her “not to bite†on the investigators’ questions into
the incident. Williams’s testimony on
these points is not inherently improbable, incredible, physically impossible,
or wholly unacceptable to reasonable minds.
(See Flowers v. State
Personnel Bd. (1985) 174 Cal.App.3d 753, 759 [“ ‘The trier of
fact’s determination will be interfered with on appeal only when it appears
that the witness’ testimony is inherently so improbable as to be unworthy of
belief’ â€].) Evidence from an
eyewitness whom the ALJ found had no incentive to fabricate damaging testimony
against Olson is such that “a reasonable mind might accept as adequate to
support a conclusion.†(See
Therefore, “substantial evidence†supports the ALJ’s findings and, by
extension, the Board’s decision. (
We reject
Olson’s suggestion that the ALJ’s credibility determinations are entitled to no
deference because she did not make findings regarding Williams’s demeanor, as
contemplated by Government Code section 11425.50.
Government
Code section 11425.50, subdivision (b) requires in pertinent
part: “If the factual basis for the
decision includes a determination based substantially on the credibility of a
witness, the statement shall identify any specific evidence of the observed
demeanor, manner, or attitude of the witness that supports the determination,
and on judicial review the court shall give great weight to the determination
to the extent the determination identifies the observed demeanor, manner, or
attitude of the witness that supports it.â€
In California Youth Authority,
section 11425.50 applies to credibility determinations by an
administrative law judge in Board administrative adjudications of employee
disciplinary actions. (
pp. 588, 590-592.)
As we have
described, however, the ALJ credited Williams’s testimony based on factors
attitude. Under such circumstances,
Government Code section 11425.50 is inapplicable. When an ALJ merely states in her decision
that she believed or disbelieved certain witnesses, but does not identify any
“ ‘observed demeanor, manner, or attitude’ of witnesses,†we may conclude
“the ALJ based this credibility determination on inferences unrelated to
witness demeanor, manner or attitude.†(
p. 596.) Because the ALJ here did
not base Williams’s credibility determination regarding her testimony on her
demeanor, manner, or attitude, we conclude Government Code
section 11425.50 does not apply. (
Although
the Board was not required by statute to give “great weight†to
findings unaccompanied by reliance on demeanor or appearance (Gov. Code,
§ 11425.50, subd. (b)), we nonetheless apply the standards generally
applicable to an appellate review for substantial evidence that includes
credibility determinations. Review under
a substantial evidence standard is highly deferential to the fact finder. (Escobar v.
Flores (2010) 183 Cal.App.4th 737, 748.) We neither substitute our own judgment if the
Board’s decision is one which could have been made by reasonable people (
(1997) 54 Cal.App.4th 698, 701), nor reweigh the evidence presented to the
Board (ibid.); rather, we defer to
the determination of credibility by the finder of fact (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065). Here, the finder of fact found Williams
credible and, by comparison, the opposing evidence offered by Olson less than
credible. Because that decision is not
inherently unreasonable, we shall not upset it on appeal.
Olson
contends the ALJ’s credibility determinations as to Williams’s testimony were
not supported by the evidence. He cites
testimony that assertedly conflicts with Williams’s testimony. Olson points out that two escorting officers,
and Crawford and Fleetwood, testified they did not see Kramer put his foot on
Saechao’s face before Saechao was placed in the cell.
As for
Crawford and Fleetwood, we note that the evidence indicates they could easily
have missed that event. When asked
whether he saw somebody put a foot to Saechao’s head, Crawford testified,
“there was [sic] a lot of people
there and there was [sic] a lot of
people around him and I ended up more on [sic]
the back of the group. And I
. . . don’t think I saw everything.†Fleetwood testified that she saw the officers
place Saechao on the floor outside the cell, but did not see any officer place
a foot to his head. But Fleetwood also
testified that, although she was not watching when Saechao was placed in the
cell, she thought Kramer put Saechao in the cell because he had been standing
there immediately before and after she noticed Saechao in the cell. She said she did not watch the movements
between the time Saechao was on the ground and the time she saw him in the
cell.
One of the
officers, Officer Davidge, testified that he was standing a foot away from
Saechao’s head after he was placed on the floor. He said he could have missed someone putting
a foot on Saechao’s head at that time if he had been distracted, but he did not
feel he had been. He testified that nobody
put a foot on Saechao’s head. The other
officer present, Officer DeLong, was asked whether he saw Kramer “putting his
boots on the inmate[]†and whether he saw “any officer putting his leg on the
inmate’s head,†to which he replied “No sir.â€
Olson points out that contrary to
Williams’s testimony that it was Kramer who put Saechao in the cell, Davidge
testified that it was he and Sergeant Jimenez who put Saechao in the cell. DeLong testified that he was positive Kramer
was not present when Saechao was placed in the cell. He also said Olson was not present at that
time. But DeLong also testified he had
no recollection regarding which officers were present. DeLong was not asked where he was standing
relative to Saechao or the other officers who were present. Nor was he asked about where his attention
was focused. Crawford testified that
there were 15 to 20 people around Saechao when he was placed in the cell.
Olson also points out that the
aforementioned witnesses did not see Olson push Saechao’s head against the
cell. Again, the record reveals the
witnesses may not have been in a position to see this event, or their attention
was not focused on it. Fleetwood testified
she did not have a clear view of the cell from her office. She would not have been able to see officers
enter the cell from her position at her desk.
To see the cell she would have to “slide all the way down†her desk, and
she was occupied with her work after Saechao was placed in the cell. Moreover, Fleetwood testified she was not in
her office the entire time Saechao was in the building. Crawford testified that after he saw Kramer
in the cell and “a hand on Saechao’s mouth,†Crawford “walked over to the
medical†to call about the availability of a bed for Saechao at the crisis bed
unit. Davidge testified that he left
Building A-5 after Saechao was placed in the cell and had no knowledge of what
had occurred after he left. Similarly,
DeLong testified that he left the building about five minutes after Saechao was
placed in the cell. He had no
information about what occurred thereafter.
Thus, as to Williams’s observation
of Kramer and Olson pushing Saechao’s head against the cell, the only testimony
that conflicts with her testimony is that of Kramer and Olson, two interested
parties. (Evid. Code, § 780, subd. (f)
[in deciding the credibility of a witness, the trier of fact is entitled to
consider whether the witness has a “bias, interest, or other motiveâ€].) Moreover, we note that Saechao sustained a
lump to his forehead that seems consistent with Williams’s assertion that his
head was pushed against the cell and inconsistent with Olson’s expectation that
Saechao would have sustained abrasions and scrapes while resisting during the
escort from Building A-3.
Finally, no witnesses other than
Olson provided testimony that contradicts Williams’s testimony about what Olson
said to her before she was called to Captain Gower’s office. That evidence supports the finding that Olson
attempted to influence what Williams would tell Captain Gower. It also evinces a consciousness of
guilt. (Evid. Code, § 413; see
8 Cal.4th 1060, 1138-1139.)
Having considered all the evidence
presented, including that which fairly detracts from the evidence supporting
the Board’s determination (California
Youth Authority, supra,
104 Cal.App.4th at p. 586), we conclude there was substantial
evidence supporting the Board’s findings notwithstanding
the inconsistencies highlighted by Olson.
The
judgment is affirmed. The Board is
awarded its costs on appeal. (Cal. Rules
of Court, rule 8.278 (a)(1), (2).)
MURRAY , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] Kramer is not a party to this appeal.
name="_ftn2" title="">[2] The nurse who filled out the 7219 report
wrote a statement in which he stated he attempted to do a visual assessment of
Saechao while Saechao was in the cell yelling.
Saechao was uncooperative and the nurse was not able to get close to
Saechao because of his behavior. The
nurse could see only Saechao’s face and legs from a distance.
