Merritt v. L.A. Cnty. Civil Serv. Comm'n

GREGORY MERRITT, Plaintiff and Appellant, v. LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, Defendant;COUNTY OF LOS ANGELES, Real Party in Interest and Respondent.

B303439

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

June 10, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. Nos. BS156979 BS167381)

APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.

Weinberg, Roger & Rosenfeld, David A. Rosenfeld and Alexander S. Nazarov for Petitioner and Appellant.

No appearance for Defendant.

Gutierrez, Preciado & House, Calvin House and Baruch Y. Kreiman for Real Party in Interest and Respondent.

____________________

Petitioner Gregory Merritt, a supervising children's social worker with the Los Angeles County Department of Children and Family Services (the Department), was fired by the County of Los Angeles (County) in September 2013. The Civil Service Commission (Commission) issued a final order upholding his discharge. This appeal is from the trial court's denial of Merritt's petition for administrative mandamus challenging the Commission's order.

Merritt does not strongly contest the County's decision to discipline him because he admittedly failed to follow the Department's policy and a child was murdered as a result. Rather, he focuses his argument primarily on whether his level of misconduct justified his discharge, or whether he should have received, as the hearing officer recommended, a 10-day suspension, or as the Commission originally ordered, a 30-day suspension.

We affirm the judgment. Merritt's argument that the Commission's decision violated statutory and constitutional due process notice requirements fails. Not only did he waive the argument by failing to raise it in his amended petition for writ of administrative mandamus, but there is no substantive merit to it. Similarly, we reject his attempt to downplay and deflect from his own misconduct by arguing the County is comparatively at fault because it did not provide him sufficient resources to do his job. That is not a defense here. Finally, we find substantial evidence in the administrative record that supports the Commission's findings of fact and conclusions of law, and theCommission did not abuse its discretion in concluding that discharge was the appropriate discipline under all the circumstances.

BACKGROUND

I.

This is Merritt's second appeal in this matter. The first appeal was dismissed by this court because Merritt tried to appeal from an interlocutory trial court order that remanded the case to the Commission for further proceedings and findings. (County of Los Angeles v. Los Angeles County Civil Service Com. (2018) 22 Cal.App.5th 174.)

Although the first appeal was dismissed, this court's 2018 opinion provides a comprehensive statement of the administrative proceedings up to the time when the matter was remanded to the Commission. Accordingly, we repeat those portions of that opinion as they relate those relevant facts:

"INTRODUCTION AND SUMMARY

"The County . . . fired Gregory Merritt, a supervisor in the . . . Department . . . for (1) failing to adequately supervise a social worker, Patricia Clement, and (2) approving Clement's unjustifiable closure of a case of suspected child abuse without first consulting the Department's records, as required by [the] Department['s] policy. Those records indicated the child—eight-year-old Gabriel Fernandez—was at risk of further abuse and that the file unquestionably should not have been closed. In May 2013, less than two months after Merritt approved closing the file, thereby ending the Department's efforts to protect the child, Gabriel's mother and her boyfriend beat the child to death.

"Merritt appealed his discharge to the . . . Commission . . . . After taking evidence, a hearing officerfound that Merritt had been negligent, but set aside the discharge, instead imposing a 10-day suspension as the only penalty. The County objected to reinstating Merritt. In response, and without reading the record or receiving any further evidence, the Commission adopted the hearing officer's negligence findings, but substituted a 30-day suspension without backpay as the penalty.

"The County filed a petition for writ of administrative mandate, asking the Superior Court to overturn the Commission's decision requiring reinstatement and to instead uphold its firing of Merritt. Merritt filed a separate petition for writ of traditional mandate seeking an award of backpay. The Superior Court consolidated the two petitions.

"On May 5, 2016, the Superior Court, having concluded the Commission set forth insufficient findings to 'bridge the analytic gap' between the evidence of Merritt's failings and its decision to impose a 30-day suspension rather than discharge (or any other possible penalty), partially granted the County's petition, to this extent: It remanded the matter to the Commission with instructions to set aside its decision, make appropriate findings, reconsider the penalty based on those findings, and issue a new decision that includes findings explaining its rationale. The court explicitly stated its order was interlocutory. It did not require or foreclose any particular decision by the Commission and left for future review by that court the core issue of Merritt's discharge or reinstatement. The court denied as moot Merritt's petition for an award of backpay, with the express understanding that it could be revived depending on the Commission's decision. In a colloquy with the judge, Merritt's counsel acknowledged that thisinterlocutory order would not be subject to appellate review. Nevertheless, Merritt appealed. [¶] . . . [¶]

"FACTS AND PROCEDURAL BACKGROUND

"1. Events leading to Merritt's discharge.

"Gabriel's teacher first reported suspected physical abuse of Gabriel to the Department's emergency response unit in October 2012. The Department had previously received reports of abuse or neglect of other children in the home. On December 27, 2012, Merritt was asked to screen the case for family preservation. Thereafter, the Department opened a voluntary family maintenance case plan, signed by the mother on January 29, 2013. The voluntary family maintenance case plan was assigned to . . . Clement, a social worker under Merritt's supervision.

"After the mother refused services, Clement recommended closing Gabriel's case on March 29, 2013, which Merritt approved on April 5, 2013. The family's case was finally closed with Gabriel's sibling on April 25, 2013. About a month later, on May 22, 2013, Gabriel's mother and her boyfriend beat him severely; he died of his injuries two days later.

"The Department launched an internal affairs investigation after the child's death. The investigation revealed, among other things, that Clement had failed to conduct the required assessments regarding the safety of Gabriel's home environment and his need for mental health services. For example, the case file and online records showed missed interviews with Gabriel, bodily injuries to Gabriel, that Gabriel had suicidal ideations and had allegedly been sexually abused by a relative, and the failure of the mother to cooperate. These factors should have precluded closing the case. Yet, the case was closed.

"Following the investigation, the Department decided to terminate four social workers, including Clement and Merritt. The Department discharged Merritt for his negligent supervision of Clement, citing his failure to ensure Clement: complied with continuing services case management policies; screened and assessed Gabriel and his siblings for mental health services; complied with contact and documentation requirements; properly investigated and assessed allegations of physical abuse; assessed Gabriel's mother's parental capacity; assessed an emergency response referral; and thoroughly assessed the appropriateness of terminating Gabriel's case. The Department also cited Merritt's failure to comply with its standards for supervising children's social workers, including Merritt's failure to review the paper case file and the Department's online CWS/CMS case record system before closing Gabriel's case.

"2. Proceedings before the Commission.

"Merritt appealed the discharge to the Commission and requested a hearing. The Commission's hearing officer held an evidentiary hearing, including two days of testimony, and issued written findings of fact and conclusions of law. After summarizing the witnesses' testimony and documentary evidence, the hearing officer made the following findings of fact, among others:

"—Merritt 'relied on . . . Clement, an experienced social worker, and she failed to perform her duties to his expectations.'

"—'The un-rebutted testimony demonstrates that [Merritt] asked . . . Clement appropriate and necessary questions about the case at regular meetings between them.' "—'Clement misrepresented the circumstances surrounding the services she was providing to the minor and his family and failed to accurately report said circumstances to [Merritt].'

"—'Clement misrepresented facts about the minor and his family's circumstances to [Merritt] when she recommended closing the case.'

"—Merritt 'could have been more thorough and involved in supervising . . . Clement and the case involving this minor and his family.'

"—'The evidence on the record is not sufficient to sustain the discharge of [Merritt].'

"—'The evidence supports a [10]-day suspension.'

"The hearing officer concluded the Department 'sustained the burden of proof that [Merritt] did not provide sufficient supervision to . . . Clement,' but did not sustain its 'burden of...