Opinion
After the superior court sustained a demurrer to his initial pleading, plaintiff Thomas Robison filed an amended petition for a traditional writ of mandate directing defendant City of Manteca to reinstate him to his position as “Refuse Collector Worker II.” This time, the superior
On appeal from a demurrer, we assume the truth of all well-pled factual allegations of the amended complaint, which do not include legal conclusions. (Dills v. Redwoods Associates, Ltd. (1994)
The plaintiff was a refuse collector in the defendant’s department of public works (DPW) since 1991. After conducting a random drug test in December 1995, the defendant notified the plaintiff he had tested positive for controlled stimulants. He requested a confirmation test and screening of his medications. However, in the interim his employee-organization representative (Steve Conway), in coordination with the DPW director, coerced him into executing a “recovery agreement” with the defendant. On the date of execution, they did not advise him to seek counsel, they did not review the document’s provisions, and they presented it to him turned to the signature page. The agreement required him to undertake a substance-abuse treatment plan, and waived his right to appeal any discipline, including separation from service, to the defendant’s personnel board.
Following a preseparation meeting (International Brotherhood of Electrical Workers v. City of Gridley (1983)
Curiously, the July 3 letter—which the plaintiff chose to incorporate in the petition—contradicts his allegations in a number of respects. In responding to issues the plaintiff raised at the IBEW hearing, it states the circumstances under which he signed the recovery agreement were irrelevant; the plaintiff failed both the original and the confirmation drug tests, the results of which the doctor had sent to the plaintiff before the hearing; the doctor confirmed for the defendant on July 3 that the over-the-counter medication which the plaintiff used would not result in a false positive, and the doctor had provided this information to the plaintiff; and the plaintiff had met only once with a counselor to develop a rehabilitation plan, then called to cancel any further meetings, stating he “did not have to follow through with the plan.” Concluding the plaintiff had not offered any excuse for not complying with the recovery agreement, the defendant stated there was no choice but to fire him. It noted he had waived his right to an appeal to the personnel board.
In a mélange of doctrines, the petition alleges several bases for mandate. It first claims the defendant’s conduct was in excess of its jurisdiction, because it denied the plaintiff due process when it did not allow him to make an informed decision regarding the recovery agreement. It then claims the defendant failed to grant him a fair trial, because it had not given him the results of the screening of his medications prior to the IBEW meeting, and used evidence not disclosed to him before that meeting as the basis of its decision to fire him. Finally, it claims the defendant prejudicially abused its discretion in that (1) it did not establish a violation
The superior court issued a lengthy statement of decision in ruling on the demurrer. In a nutshell, it found the plaintiff executed a valid recovery agreement, and the July 3 letter established as a matter of law that the defendant had not acted in an arbitrary and capricious manner. It further concluded the plaintiff had failed to demonstrate a reasonable probability that leave to amend could cure the defects in his pleading. The court noted that in reaching its decision, it had considered extrinsic evidence contained in a declaration by the plaintiff (that was attached to his points and authorities filed in support of the merits of the petition) only for the purposes of determining whether to grant leave to amend.
Discussion
We determine the sufficiency of the amended petition de novo. (Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993)
The focus in a review of a local agency decision—in a matter in which there was no administrative hearing—is whether the allegations establish an arbitrary and capricious decision. (Bright Development v. City of Tracy (1993)
It behooves us as a preliminary matter to blow the chaff from the plaintiff’s appellate contentions. Although the plaintiff is preoccupied with whether he sufficiently alleged a failure to prove he had violated a proper work-related drug policy in December 1995, the July 3 letter—made part of the amended petition by the plaintiff—establishes that the basis for his dismissal was his failure to comply with the recovery agreement. If the plaintiff entertained serious doubts about the validity or job-relatedness of the drug tests, he could have refused to execute the agreement and forced the defendant to justify the resulting discipline. Instead, the plaintiff chose to accede to this condition of further employment. He has thus mooted the underlying basis for requiring the agreement and we do not consider it further in the context of his remaining arguments.
The only pertinent contentions on appeal are whether he has alleged a basis to void the recovery agreement, whether the defendant properly conducted the IBEW hearing, and whether dismissal was an abuse of discretion. We now turn to these issues.
I
The plaintiff contends the circumstances under which he executed the recovery agreement constituted “undue influence” and “unconscionability.” He furthers argues in an aside that there is no evidence of a knowing and intelligent waiver of his due-process rights.
A
With respect to undue influence, he cites Keithley v. Civil Service Bd. (1970)
The short answer to this argument is found in the complete absence of any allegations coming within these criteria. In purely conclusory fashion, plaintiff passively alleged he “was coerced” by representative Conway “and informed” [szc] by the DPW director into signing the agreement without any review of the provisions on the date of execution, which according to the July 3 letter was two months after the original drug test. In the absence of any additional factual allegations, this is inadequate to establish undue influence.
Even if we accept the truth of his declaration for purposes of assessing the denial of leave to amend, the declaration shows that representative Conway interceded after the defendant sent a notice of intent to dismiss the plaintiff on January 4, 1996, for a violation of the defendant’s drug policy, and persuaded the DPW director instead to offer the recovery agreement in a memo to the plaintiff on January 19;
B
The claim of unconscionability is also lacking in merit. A contract is enforceable unless it is both procedurally and substantively unconscionable. (Civ. Code, § 1670.5; 24 Hour Fitness, Inc. v. Superior Court (1998)
The
C
The defendant also claims there is no evidence he made a knowing and intelligent waiver of his due process rights.
II
We also reject plaintiff’s argument regarding the defendant’s failure to comply with IBEW protections. The argument borders on the frivolous. Once again, the allegations in his petition are too conclusory and vague- to establish any violation; nor do the facts in his declaration demonstrate a possibility of successful amendment.
The defendant notified the plaintiff on April 24, 1996, it intended to fire him for
He also argues the July 3 letter shows the defendant forced him to prove a negative at the IBEW hearing when it states, “At no time during the last four months did you submit any documentation or evidence supporting your position that you were not under the influence of drugs on December 14, 1995.” However, this was a mere aside, part of the defendant’s response that his continued denial of drug use was irrelevant in light of the fact he had executed the recovery agreement and failed to abide by it. Ignoring his allegations, which otherwise beat the deceased drug test horse, he does not allege any other deprivation of due process. We therefore reject this argument.
III
Having determined the validity of the recovery agreement and the propriety of the IBEW procedure, we are left with the question of whether it was arbitrary and capricious to fire the plaintiff. As the July 3 letter itself points out, the plaintiff did not comply with the agreement by participating in a recovery plan, and did not present any evidence to the defendant in excuse (such as frustration of his efforts to comply) other than his moot disagreement with the original basis for the requirement. He complains the decision to fire him is a knee-jerk reaction which takes nothing else about his employment record into consideration. While reasonable minds differ over the value of “zero-tolerance” policies in various contexts, it is nonetheless a policy choice which is neither arbitrary nor capricious. “Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.” (Constancio v. State Personnel Bd. (1986)
Disposition
The judgment is affirmed.
Raye, J., and Kolkey, J., concurred.
Notes
Although the plaintiff cites Skelly v. State Personnel Bd. (1975)
While the amended petition references the July 3 letter, in the record on appeal it does not appear as an exhibit to that pleading. However, it is appended to the original pleading.
The petition also alleges the July 3 letter failed to provide any notice of his rights to judicial remedies, but the plaintiff has never developed any argument in this regard.
Consequently, we reject the plaintiff’s cursory concluding argument that the superior court denied him the right to a trial on the merits of his petition when it considered this evidence. This review presumed the truth of the extrinsic evidence and found it insufficient.
The fact-specific nature of this inquiry means the underlying facts in Keithley have little relevance (cf. State Compensation Ins. Fund v. Brown (1995)
In its decision, the superior court noted the plaintiff’s lawyer stated for the first time at the hearing on the demurrer that the plaintiff did not receive a copy of the agreement with the memo. This self-serving representation is belated and not properly part of the record by any standard.
The second paragraph of the agreement (which is in the same size type as the rest of the two-and-one-half-page, 10-paragraph document) states, “If Employee fails to fulfill any provisions of this Agreement, employee will be terminated from employment. Prior to termination, the employee’s Department Manager will discuss provision violations with the Employee. The Department Manager, at his/her discretion, will then decide if the provisions of this Agreement have been violated. Before the termination is finalized, the City Manager or designee will review the employee’s written response and will indicate the appropriate disciplinary action. The Employee gives up the right to appeal the termination to the Personnel Board. It is agreed that no further attempt to emolí the employee in a rehabilitation program will be made by the City. Employee hereby waives the right to appeal this Agreement to the Personnel Board."
In this regard, the plaintiff suggests there is a “serious” question whether he is permitted to waive his due process rights. In light of the fact a criminal defendant may plead guilty and waive the entire panoply of constitutional rights, this is an untenable proposition.
He supports it only with a citation to a wholly irrelevant case involving the extent of the Legislature’s power to impose the consequence of an “automatic" resignation (Gov. Code, § 19996.2) for unexcused absences (Zike v. State Personnel Bd. (1983)
He cites Isbell v. County of Sonoma (1978)