Court of Appeal:
Opinion, Affirming Remand in Light of the Bases for a Firing Other Than Shoplifting Being Overturned, Comes
From Same Division That, on Tuesday, Counseled Against Remands Where Result Is Foregone Conclusion
By a MetNews Staff Writer
A thief might be fit to work as an accountant for the City of Los Angeles, the Court of Appeal for this district held yesterday, affirming an order remanding a case to the city for a fresh determination as to whether, in light of bases for its discharge of the man other than his stealing having been judicially invalidated, it wants to give him back his job.
The unpublished opinion for Div. Eight was authored by San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment. It comes a day after a published opinion was filed disapproving a remand in a case in which, as Justice John Shepard Wiley Jr., author of the majority opinion, saw it, a remand was pointless where a reaffirmation of a firing was inevitable.
That opinion, in Griego v. City of Barstow, 2023 S.O.S. 52, was joined in by Presiding Justice Maria E. Stratton. Harutunian dissented in that case, arguing that a discharged fire captain should be allowed to “make his case” for reinstatement because his alleged acts of statutory rape had not been substantiated, notwithstanding that other misconduct such as the commission of perjury was supported by substantial evidence.
Wiley did not participate in deciding the appeal acted upon yesterday. Harutunian’s opinion was signed by Stratton and Justice Elizabeth A. Grimes.
Arrested for Theft
The appellant is Suren Sahakyan. He was arrested on March 2, 2017, on suspicion of the theft of DVDs from a Target store in Eagle Rock and for assaulting two Target security officers when they sought to detain him outside the premises.
He was initially charged with two counts of felony robbery. Pursuant to a plea bargain, he pled guilty to misdemeanor battery, was placed on probation, and after completing probation, the conviction was eradicated and the record of the arrest was destroyed.
Sahakyan had been an accountant with the Los Angeles World Airports, with access to blank checks. The city fired him based on the arrest and on other grounds.
The city’s Board of Civil Service on April 25, 2019, determined “that the Discharge effective December 5, 2017 was appropriate and is SUSTAINED.” It found that he had engaged “in off-duty misconduct in conflict with his job duties”—theft and battery—(Charge 1); had violated “Departmental rules relating to disclosure of outside employment (Charge 2); and had falsified city records by not disclosing the employment (Charge 5).
Chalfant Orders Remand
In response to a petition for administrative mandamus, Los Angeles Superior Court Judge James Chalfant found that the battery committed by Sahakyan had no bearing on his fitness to work as an accountant and that the charge of falsifying records was not supported by the evidence. He remanded the case to the commission for a determination as to whether Sahakyan should be fired based solely on the theft.
“After the trial court’s decision, only some of these bases for dismissal remained, which is why it decided that the Commission should determine in the first instance whether the penalty of discharge was still appropriate. The trial court found Charge 5 of falsifying records unsupported. It found Charge 1 supported by the theft only, and not the assault. Finally, it found that the maximum penalty for a first time offense of Charge 2 was a five-day suspension, rendering Charge 2 not an independent basis for dismissal. Thus, the trial court properly determined that remand for Commission reevaluation of the penalty was required.”
Relevance of Assaults
The city argued that Chalfant erred in concluding that the assaults were irrelevant to employment as an accountant, reflecting on Sahakyan’s inability to handle stress. Harutunian responded:
“The City does not point to any record evidence that Sahakyan had a particularly stressful job that required him to think clearly under pressure. Handling checks and accounting for large amounts of money requires honesty and is arguably a large responsibility, but there was no evidence it involves a uniquely high level of stress. The trial court was within its discretion in concluding that dealing with the stress of forcefully being detained for arrest by multiple Target Security Officers is quite unlike the daily stress encountered by an accountant. The trial court’s finding of a lack of nexus between Sahakyan’s assault at Target and his employment is supported by substantial evidence, and is a finding the trial court was entitled to make.”
Sahakyan contended in his complaint that he “was deprived of his pre-removal Skelly rights because he was terminated without being provided a full, complete and accurate written statement of the basis for his termination, which should have included ‘the substance of the relevant supporting evidence,’ ” citing the Court of Appeal’s 2005 decision in Gilbert v. Sunnyvale.
Bay Pay Ordered
Chalfant agreed, finding that the notice that he was being fired based on “off-duty misconduct” did not pinpoint the bases: the theft and the assaults. He ordered that Sahakyan receive back pay from the date he was fired to the date of the decision by the commission sustaining that action.
The city contested that decision, arguing on appeal that the notice was accompanied by the criminal complaint alleging two counts of felony robbery and other documents reflecting the crimes he was charged with committing, and, having been present at the criminal proceedings, was fully aware of what “off-duty misconduct” was being alleged.
“But as the trial court recognized when the City made the same argument below,” Harutunian responded, “the City fails to recognize its obligation to provide not only notice of the charge against employee” but also a delineation of the evidence supporting the allegation.
The case is Sahakyan v. City of Los Angeles, B308113.
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