Wednesday, March 30, 2016
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C.A. Overturns Ouster of Official Who Claimed Retaliation
Panel Says Fresno County Labor Manager, Who Accused Superiors of Union-Busting, Did Not Get Fair Hearing
By KENNETH OFGANG, Staff Writer
The Fifth District Court of Appeal yesterday overturned the dismissal of a former labor relations manager for Fresno County.
The panel said John Pinheiro was treated unfairly by the county’s Civil Service Commission when it relied on evidence outside the administrative record to reject his claim that the firing was retaliatory.
The commission found that there were five independent and sufficient grounds for the termination—repeated violation of orders that he was to have no contact at work with a female employee with whom he allegedly was having an affair; that he repeatedly disclosed confidential information to the woman; that he violated an anti-moonlighting policy by secretly working for a poker club; that he repeatedly committed petty thefts of bags of potato chips and sodas from sandwich shops near his office; and that he had repeatedly lied to the outside investigator probing the case, as well as to his superiors and to the commission hearing officer.
Impropriety Denied
Pinheiro denied any impropriety involving the female employee; claimed that Beth Bandy, Fresno County’s director of personnel services, approved his part-time employment at the poker club; denied the shoplifting allegations; and said he had been consistently truthful in discussing the charges.
He also said that Bandy and Chief Administrative Officer John Navarrette wanted to get rid of him because he complained that they and others in county government had acted illegally by trying to persuade county correctional officers to break away from their Service Employees International Union local.
To that end, Pinheiro claimed, Navarrette named a biased outside investigator, Richard St. Marie, who had previously worked for the county but had taken an administrative post with the Merced County Sheriff’s Office several years earlier.
Navarette had been scheduled to preside over Pinheiro’s pre-termination, or Skelly, hearing, but stepped aside after Pinheiro’s lawyer objected. The county’s chief probation officer presided instead and found good cause for Pinheiro’s firing.
He then appealed to the commission, which named Fresno attorney Thomas Campagne as hearing officer.
Campagne had previously presided over a hearing on the correctional officers’ petition to modify their bargaining unit, and accused Pinheiro of testifying inconsistently at the two hearings.
Prior Testimony
Relying on memory, Campagne pointed out that Pinheiro previously testified that the county wanted to be neutral as to whether the correctional officers should be allowed to form a separate unit. Pinheiro responded that he testified that neutrality was in question and he hinted there were problems, but that he was cut off.
Had he been allowed to complete his earlier testimony, he said, he would have told the hearing officer that Navarette and Bandy were not neutral on the issue. He confirmed that he signed a letter to the commission stating that the county was taking a neutral position, and that he testified at the modification hearing that Bandy had directed him to sign and send the letter.
But he denied testifying that he got Navarrette’s permission to sign the letter. And he claimed that his testimony at the modification hearing had questioned his superiors’ neutrality.
The commission, however, reviewed a portion of the transcript of the modification hearing before issuing its 129-page decision upholding the dismissal.
In denying Pinheiro’s petition for a writ of mandate that would have overturned the commission’s decision, Fresno Superior Court Judge Carlos Cabrera ruled that the commission did not properly consider Campagne’s recollection of what occurred at the modification hearing, nor the hearing transcript. But this did not deprive the petitioner of a fair hearing, he said, calling the matter “rather insignificant,” and finding that Pinheiro had a full opportunity to explain his position during the hearing and in his closing brief.
But Justice Gene Gomes, writing for the Court of Appeal, said the commission had improperly relied on extra-record evidence to determine that Pinheiro lacked credibility.
That was not “a small point” in the context of the entire decision, Gomes said, because “Pinheiro’s credibility was the crux of the case.” He cited the commission’s characterization of the testimony as “strange” and the labor manager’s demeanor as “peculiar,” and its finding that all of his testimony accusing Bandy and Navarette of trying to alter the bargaining unit was discredited.
In addition, he said, the commission relied on the outside evidence in finding that Navarrette was credible in testifying that he did not care who represented the officers and did not encourage them to form a new bargaining unit. Finding Naverrette credible and Pinheiro not, Gomes said, not only affected the retaliation claim, but also influenced the findings that Pinheiro had lied during the investigation and the commission proceedings.
“Since credibility was key to the Commission’s overall findings…we will not assume the error was harmless,” Gomes wrote.
Pinheiro won a double victory yesterday as the court, in an unpublished opinion, reinstated his claims for defamation, invasion of privacy, and other torts against the county, Navarrette, and Bandy.
Fresno Superior Court Judge Jeffrey Hamilton had stricken those claims under the anti-SLAPP statute. But Gomes, writing for the Court of Appeal, said the claims did not arise from protected activity in connection with a public proceeding because there was evidence the defendants discussed Pinheiro’s alleged misconduct with persons who had no involvement in the matters under investigation.
Those persons included Pinheiro’s sister, who worked for the county in an unrelated capacity, and his brother, who worked for the Fresno Unified School District and was a friend of Navarrette, the justice explained.
The cases are Pinheiro v. Civil Service Commission for the County of Fresno, F07047, and Pinheiro v. County of Fresno, F070058.
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