COURT OF APPEAL AFFIRMS JUDGMENT REINSTATING SAN BERNARDINO DEPUTY

MICHAEL A. MORGUESS
Associate Attorney
Castillo Harper, APC

Last year, a San Bernardino County Superior Court judge found that the San Bernardino County Civil Service Commission’s findings upholding a termination were against the weight of the evidence presented at the administrative hearing, and that the Department violated pre-disciplinary due process rights (i.e., Skelly rights) by failing to provide audio recordings of critical complaining witness statements. The judge ordered Sheriff’s Deputy Donna Williams retroactively reinstated with back pay, benefits and interest calculated back to the date of termination.

The San Bernardino Sheriff’s Department appealed the decision. On June 17, 2019, the Court of Appeal affirmed the judgment in favor of Williams. On appeal, the Department contended that the findings — now in favor of Williams as a result of the Superior Court judgment — were not supported by substantial evidence. The Court of Appeal easily affirmed the judgment, finding that on appeal the Department “does not attempt to meet, let alone meet” the high burden requiring reversal: that the evidence compelled a favor in its finding. The court rejected each of the Department’s arguments.

As recounted in the Court of Appeal’s opinion, Williams and her boyfriend were defending themselves from a verbal and physical confrontation initiated by two women at a Del Taco drive-through. After Williams and her companion received their food, they pulled past the drive-through window to leave and noticed there was a car stopped, blocking the driveway exiting the drive-through window. The driver of the other vehicle got out and approached the drive-through window. Williams politely requested that she move her car. The driver told Williams to “shut up” and added some racial epithets. Williams and her boyfriend were shocked at this response. The driver came back around the passenger side of Williams’ car and went up to the drive-through window. This time, Williams’ boyfriend got out and asked, “Ma’am, could you please move your car? There are parking spots right there,” pointing them out. By now, there were five cars lining up behind Williams’ car. The driver continued her vitriol in response to him. 

The passenger then exited the vehicle, came up behind the boyfriend and pushed him; this was followed by chaos, screaming, yelling and name-calling. When Williams witnessed the passenger pushing her boyfriend, she got out of the car, tried to de-escalate the situation by identifying herself as an off-duty deputy sheriff and immediately told everyone to get back to their car.

Instead, the two women threatened Williams. Williams went up to the Del Taco window to speak with the attendant, identified herself as an off-duty deputy sheriff and requested she call 9-1-1. The driver started taking down Williams’ license plate number, and Williams’ boyfriend then began taking pictures of the other vehicle’s license plate and started to record video with his cellphone. According to testimony, Williams was surrounded by the driver in the back and the passenger in the front, with nowhere to go.

The passenger began punching Williams in the head and face several times with a closed fist. Shortly after that, deputies arrived. They interviewed all four, including Del Taco employees who were working the drive-through window at the time of the incident. Williams voluntarily provided statements and cooperated with their investigation.

Thereafter, the driver and passenger filed a lawsuit against Williams and the Sheriff’s Department, alleging Williams used racial slurs against them. The Department settled the case for a nominal amount. But it was only once the lawsuit was filed that the Department investigated the incident.

Williams was interviewed and denied using the alleged racial slurs. She was terminated, effective July 1, 2014. The Department alleged she used poor judgment in engaging in a confrontation, using a racial slur and lying to IA investigators when she denied using the racial slurs attributed to her. Williams appealed the discipline to the County of San Bernardino Civil Service Commission.

Castillo Harper, APC, Partner Kasey A. Castillo represented Williams in the administrative hearing, and Hearing Officer Joseph Gentile heard the case. The driver and passenger of the other vehicle refused to testify at the hearing; they also would not submit to interviews by the Internal Affairs department.

Following the hearing, the hearing officer found that Williams used good judgment when she tried to calm the situation by identifying herself as an off-duty deputy sheriff, and again when she left the altercation and asked the Del Taco employee to call law enforcement. However, he found that Williams did not use good judgment when she became involved in the altercation and used a racial slur. The hearing officer also found that Williams was dishonest when she denied using the racial slur to IA investigators.

Castillo Harper, APC, filed a Petition for Writ of Administrative Mandate (Cal. Civ. Proc. § 1094.5) in San Bernardino County Superior Court on behalf of Williams. Castillo Harper, APC, attorney Michael A. Morguess represented Williams in the writ and appellate proceedings.

Morguess argued that the commission’s finding that Williams used poor judgment by becoming involved in a confrontation was belied by the commission’s own findings that a) Williams affirmatively exercised “‘good judgment’ when she entered the argument” to calm things down and b) affirmatively used “‘good judgment’ when she left the altercation” and asked the Del Taco employee to call law enforcement. Williams tried to intervene and de-escalate the situation. Instead, the passenger began punching her in the head and face several times with a closed fist, and in her interviews with deputy sheriffs that night, admitted to doing so and acknowledged Williams only “brushed against her.” At no time did Williams exercise poor judgment.

With regard to the dishonesty allegation related to making racial slurs, the Department argued that audio from a cellphone video captured Williams, in her own voice, making the racial slur. However, when the hearing officer himself tried to listen to the same audio played, he could not hear Williams use that word; indeed, the Department’s own witnesses testified they had to listen to the audio multiple times to make out anything whatsoever. The hearing officer listened to the same audio and did not hear Williams’ voice, nor any such words. Morguess argued that Williams was not dishonest in her Internal Affairs interviews and the evidence did not support a finding that she was.

After reviewing the administrative record and audio, the Superior Court overturned all of the charges, finding essentially that the Department did not meet its burden of proof and therefore termination was an abuse of discretion. The court ordered the County to set aside the disciplinary decision and reinstate Williams retroactively to the date of termination with back pay, benefits of the value thereof and interest.

On appeal, and because the Superior Court ruled that the Department failed to prove the charges, the Court of Appeal was required to review only the evidence favorable to Williams and the judgment in her favor; the Department made the novice mistake of trying to convince the appellate court to reweigh the evidence and credibility of the witnesses, drawing a rebuke from the court. The court explained, “the Department’s presentation on appeal requires us to reweigh the evidence and make credibility determinations, which we are precluded from doing in an appeal … Weighing evidence and making credibility determinations are tasks assigned exclusively to the trial court.” In short, the Department did not overcome the high bar required to overturn the Superior Court’s judgment.

Deputy Williams is thankful this lengthy litigation has come to an end and looks forward to returning to the San Bernardino Sheriff’s Department. She is grateful to PORAC LDF for its support through not only the administrative process, but also Superior Court and the Court of Appeal.

About the Author
Michael A. Morguess is an associate attorney with Castillo Harper, APC. His practice focuses on petitions for writ of mandate and appellate matters. He is certified by the California State Bar as an Appellate Specialist. He is licensed in California, Oregon and Washington.