SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 11/14/2014

TIME: 09:00:00 AM
JUDICIAL OFFICER PRESIDING: Michael P. Kenny
CLERK: Susan Lee
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: Larry Moorman

DEPT: 31

CASE NO: 34-2014-80001818-CU-WM-GDSCASE INIT.DATE: 04/24/2014

CASE TITLE: Endsley vs. State Personnel Board
CASE CATEGORY: Civil - Unlimited
EVENT ID/DOCUMENT ID: ,11221745
EVENT TYPE: Petition for Writ of Mandate - Writ of Mandate
MOVING PARTY: Angelina Endsley
CAUSAL DOCUMENT/DATE FILED: Petition for Writ of Mandate, 04/24/2014

APPEARANCES
Patricia Tsubokawa Reeves, counsel present for Petitioner Angelina Endsley who is also present.
Chian He, Senior Staff Counsel, counsel present for Respondent.
The services of a certified court reporter is not requested by the parties.
NATURE OF PROCEEDINGS: PETITION FOR WRIT OF MANDATE
TENTATIVE RULING
The following shall constitute the Court's tentative ruling on the petition for writ of mandate, which is
scheduled to be heard by the Court on Friday, November 14, 2014 at 9:00 a.m. in Department 31. The
tentative ruling shall become the final ruling of the Court unless a party wishing to be heard so advises
the clerk of this Department no later than 4:00 p.m. on the court day preceding the hearing, and further
advises the clerk that such party has notified the other side of its intention to appear.
In the event that a hearing is requested, oral argument shall be limited to no more than 20 minutes per
side.
Any party desiring an official record of this proceeding shall make arrangements for reporting services
with the Clerk of the Department where the matter will be heard not later than 4:30 p.m. on the day
before the hearing. The fee is $30.00 for civil proceedings lasting under one hour, and $239.00 per half
day of proceedings lasting more than one hour. (Local Rule 1.12(B) and Government Code 68086.)
Payment is due at the time of the hearing.
Procedural Background
On August 9, 2010, Petitioner began her California state service with the Department of Fair
Employment and Housing (hereinafter "DFEH") as a Legal Analyst. One year later, on August 9, 2011,
Petitioner completed her probationary period and became a permanent civil service employee.
The specifications for Legal Analyst are:
"45% Conducts neutral fact-finding investigations into complaints of discrimination. Analyzes issues with

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reference to the appropriate interpretation and application of civil rights laws, rules, and regulations.
Meets time frames based on established guidelines for case investigation and as set forth by statutory
requirement(s). Conducts on-site investigations, as warranted. Determines whether a violation of the
law has occurred. Prepares a report pertaining to each investigation completed in accordance with
Departmental procedures/guidelines. Uses effective communication skills in performing all aspects of the
job duties. Explores resolution and negotiates settlements between complainants and respondents.
Prepares for and participates in formal settlement conferences with the District Administrator,
complainant(s) and respondent(s). Prepares settlement documents. Maintains proper records in
compliance with Departmental procedures. Maintains case diaries to reflect changes of address, dates
of correspondence and contacts, and the content of conversations. Interprets and explains areas of
Departmental jurisdiction to prospective complainants and respondents. Receives complaints either by
telephone or in person. Determines whether complaints should be accepted for investigation or rejected.
Analyzes issues with reference to the appropriate interpretation and application of various civil rights
laws, rules, and regulations. Solicits sensitive information in a tactful manner in order to draft complaints.
30% Functions as the Public Records Officer for the Division responding to and processing requests for
documents pursuant to the Public Records Act, including record location and review, redaction of
personal information and segregation of records exempt from disclosure by statute prior to the
production of documents.
15% Assists in the preparation of administrative discovery pleadings and related documents. Prepares
subpoenas and other papers and arranges for, and monitors, service of process. Gathers factual
information and performs routine legal research to assist in the investigation of administrative
complaints. Conduct research to identify legal business or corporate entity names. Conducts skip traces
to locate parties or witnesses.
Marginal Functions:
5% Prepares files for opening and closing cases and any accompanying correspondence.
5% Attends Department meetings. May participate in seminars and interact with various respondent and
community groups. Other duties as assigned."
On September 8, 2011, the California State Personnel Board (hereinafter "SPB") notified DFEH that it
had approval to use the Special Investigator List to appoint to the FEH Consultant Series. However, in
doing this, the candidates selected from the Special Investigator list had to also meet the Minimum
Qualifications for Consultant II and/or III depending on the vacancy.
The specifications for FEH Consultant II were[1]:
"30% Investigation: Conducts neutral fact-finding investigations into complaints of discrimination.
Analyzes issues with reference to the appropriate interpretation and application of civil rights laws, rules,
and regulations. Prepares formal discovery (e.g., interrogatories, subpoenas), interview witnesses,
reviews and analyzes documents. Meets time frames based on established guidelines for case
investigation and as set forth by statutory requirement(s). Conducts on-site investigations, as warranted.
Determines whether a violation of the law has occurred. Prepares a report pertaining to each
investigation completed in accordance with Departmental procedures/guidelines.
25% Settlements: Explores resolution and negotiates settlements between complainants and
Respondents. Prepares for and participates in formal settlement conferences with the District
Administrator, complainant(s) and respondent(s). Prepare settlement documents.

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20% Case Management: Maintains proper records in compliance with Departmental procedures.
Maintains case diaries to reflect changes of address, dates of correspondence and contacts, and the
content of conversations.
20% Complaint Intake: Interprets and explains areas of Departmental jurisdiction to prospective
complainants and respondents. Receives complaints either by telephone or in person. Determines
whether complaints should be accepted for investigation or rejected. Analyzes issues with reference to
the appropriate interpretation and application of various civil rights laws, rules, and regulations. Solicits
sensitive information in a tactful manner in order to drafts complaints. Drafts complaints.
Marginal Functions
5% Meetings: Attends Department meetings. May participate in seminars and interact with various
respondent and community groups. Performs other duties, as assigned."
To qualify as a Consultant III, Petitioner needed:
"Either I
One year of experience in the California state service performing the duties of a Fair Employment and
Housing Consultant II.
OR II
Experience: Four years of the above-described experience (Experience in the California state service
applied toward this requirement must include at least one year in a class with a level of responsibility
equal to a Fair Employment and Housing Consultant II,) and
Education: Equivalent to graduation from college. (Additional qualifying experience may be substituted
for the required education on a year-for-year basis.)"
Petitioner also needed to qualify for the Special Investigator classification. She contends she qualified
under Pattern III which provided:
"Pattern III Education: Equivalent to completion of two years of college with a major in criminal justice,
law enforcement, criminology, police science, administration of justice, business, or public
administration. (Additional qualifying experience may be substituted for the required education on a
year-for-year basis.) Applicants who are being considered for Special Investigatory positions must
possess the educational equivalent to completion of the twelfth grade; and
Experience: One year of experience in the California state service performing duties at a level
comparable to those of either an Investigator Assistant, Special Investigator Assistant, or in an
investigation assignment in the class of Management Services Technician, Range B. (Applicants who
have completed six months of service in the class of either Investigator Assistant, Special Investigator
Assistant, or Management Services Technician, Range B, will be admitted into the examination, but they
must satisfactorily complete one year of experience in the class before they can be considered eligible
for appointment.)"
On December 30, 2011, Petitioner took the Special Investigator examination and received a score of
95%. She was given notice that her eligibility was for a type Multi-Departmental Open with eligibility for
12 months. On January 11, 2012, Petitioner applied for the FEH Consultant III position. On January 17,
2012, Robin Icelow, Associate Personal Analyst confirmed Petitioner's eligibility on the Special
Investigator list to Tim Muscat, FEH chief of Enforcement. On February 1, 2012, Tyra Gilmer, then

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Personnel/Labor Relations Officer for DFEH, confirmed that Petitioner met the MQs for the Special
Investigator/Consultant III and was eligible for appointment. Mr. Muscat offered the Consultant III
position to Petitioner and she accepted. She began employment in this position on February 2, 2012.
On April 2, 2012, the FEH Consultant III class spec was added to the approved experience for the MQs
for the Staff Services Manager II 511 B under Pattern II.
On December 12, 2012, Petitioner applied for the FEH Administrator I appointment. On February 4,
2013, Associate Personal Analyst Christ Thomas approved Petitioner's eligibility for the Administrator I
appointment and notified Monica Rea, DFEH Deputy Director of Administration. On February 11, 2013,
Petitioner was appointed to the FEH Administrator I position.
In 2012, SPB's Compliance Review Division audited DFEH's personnel practices for May 1, 2011
through November 1, 2012. On October 1, 2013, SPB gave notice that it had received information that
Petitioner's appointments to Consultant III (Specialist) and FEH Administrator I may be illegal due to a
mistake of law or fact. On November 6, 2013, an informal hearing was held before Staff Hearing Officer
Richard Silva, Jr. On January 23, 2014, SPB issued its Board Resolution and Order in Case No.
13-1216N, adopting the findings of fact, determination of issues, and proposed decision of the staff
hearing officer. The Board found DFEH unlawfully appointed Petitioner to the positions of FEH
Consultant III (Specialist) and FEH Administrator I, and did not act in good faith in making these
appointments, violating the merit principle.
On March 26, 2014, SPB denied DFEH's appeal. On April 24, 2014, Petitioner filed a petition for writ of
mandate asking the Court to direct SPB to set aside its order to void her promotions and to reconsider
the finding that DFEH did not act in good faith.
Standard of Review
With regard to factual issues, the substantial evidence standard of review normally applies where a
decision of the SPB is challenged through a petition for writ of mandate. Pursuant to that rule, the
factual determinations of the SPB must be upheld if they are supported by substantial evidence, and all
reasonable and legitimate inferences must be drawn in support of those findings. (See, Newman v. State
Personnel Board (1992) 10 Cal. App. 4th 41, 47.) In applying this standard of review, the court may not
reweigh the evidence, and must consider the facts in the light most favorable to the Board, giving it every
reasonable inference and resolving all conflicts in its favor. (See, Flowers v. State Personnel Board
(1985) 174 Cal. App. 3d 753, 758.)
Responsibility for the interpretation of the law rests with the Courts. (Morris v. Williams (1967) 67 Cal.2d
733, 748)(citing Whitcomb Hotel v. California Emp. Com. (1944) 24 Cal.2d 753, 757.) Consequently, the
Court is to use independent judgment in determining statutory construction. (Yamaha Corp. of America
v. State Bd. of Equalization (1998) 19 Cal.4th 1.) In analyzing an agency's interpretation of the law, the
Court should accord "great weight and respect to the administrative construction." (Id. at 12)(citing
International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923.)
Discussion
Validity of the Promotions/Appointments
California state civil service employment is based on the merit principle, a requirement based in article
VII of the California Constitution. Hiring and promotion of state civil service employees can only be
made on the basis of merit. (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 184.) The SPB is
tasked with the enforcement and administration of the merit principle. (State Personnel Board v.

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Department of Personnel Administration (2005) 37 Cal.4th 512, 521.)

The validity of Petitioner's appointment to FEH Administrator I is contingent upon the validity of her
appointment as an FEH Consultant III. This is because the qualifications for Administrator I include
certain prior valid employment in the Consultant III position.
Petitioner contends that she qualified for the Consultant III position pursuant to qualification I, which
requires "one year of experience in the California state service performing the duties of a Fair
Employment and Housing Consultant II." She contends that as a Legal Analyst she performed "the
duties of" a Consultant II because she participated in investigations and performed significant settlement
and other Consultant II type duties. The Board determined that only 45% of Petitioner's time as a Legal
Analyst could be counted toward the one year requirement, because the job description for Legal
Analyst provides that 45% of the job duties are investigatory in nature, similar to the job duties of
Consultant II. The Board calculated that 45% of Petitioner's time as a Legal Analyst meant she had
eight months and one third of a day of required experience, and consequently was three months and
twenty-nine and two thirds days short of the one year experience requirement. The only other way to
qualify for Consultant II would be option II, requiring 4 years of experience and equivalent to graduation
from college.
Petitioner contends she spent a majority of her time as a Legal Analyst doing job duties outside of her
classification, and that those job duties qualify her for the Consultant III position and should have been
considered toward the one year requirement. Government Code section 19050.8 provides that
out-of-class experience can be used to meet minimum job requirements only if it was obtained by the
employee in good faith and was properly verified under standards prescribed by board rule. SPB rules
provide that to use such out-of class experience to meet minimum qualifications, an employee must
submit a written request for certification of the out-of-class work within a year after the ending date of the
subject duties, and the appointing authority must provide documentation of the request and certify the
work done. (2 Cal. Code of Reg. 212.) There is nothing in the record indicating Petitioner complied
with the requirements of section 212. It was proper for the hearing officer to not consider her alleged
out-of-class experience in determining her eligibility for the Consultant III position.
Petitioner also needed to qualify for the Special Investigator classification. She contends she qualified
pursuant to Pattern III, claiming that her paralegal degree complied with the education requirements.
However, the Board determined that her degree was not one of the specified majors, and consequently
could not be considered in determining whether she met the education prerequisite. The Board found
that:
"At the time of application for the Special Investigator examination, Endsley possessed an Associates of
Arts (AA) degree in Paralegal Studies and successfully completed 42 semester units in a Criminal
Justice program with the University of Phoenix, working towards a bachelor's degree. Endsley's AA in
Paralegal Studies does not meet the education component in Pattern III because the core matter of
Endsley's AA revolves around the substantive and procedural study of law and not criminal justice.
Moreover, Endsley's criminal justice studies equate to 42 units, which is less than the required 60 units
needed to be equivalent to completion of two years of college with a major in criminal justice, law
enforcement, etc."
Even if Petitioner's education credits could have been combined to meet the minimum requirements for
the Special Investigator position, substantial evidence supports the Board's determination that she did
not have the experience necessary to meet the Consultant III classification specifications, as detailed
above. As her qualification for Consultant III was reliant upon her meeting the requirements for both
classifications, her failure to meet one is sufficient to disqualify her from being eligible for the subject
promotion.

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Good Faith Determination

California Code of Regulations, title 2, section 266 provides:
"When the executive officers determines that an appointment is unlawful, the executive officer shall
determine the good faith of the appointing power and the employee under Section 8 and shall take
corrective action up to and including voiding the appointment, provided that:
(a) No corrective action shall be taken on any appointment which has been in effect for one year or
longer if both the appointing power and the employee acted in good faith; and..."
In determining whether good faith was exercised, California Code of Regulations, title 2, section 8
provides:
"(a) In order to make an appointment in "good faith," an appointing power and all officers or employees
to whom an appointing power delegates appointment authority must:
(1) Intend to observe the spirit and intent of the law; and
(2) Make a reasonable and serious attempt to determine how the law should be applied; and
(3) Assure that positions are properly classified; and
(4) Assure that appointees have appropriate civil service appointment eligibility; and
(5) Intend to employ the appointee in the class, tenure and location to which appointed under the
conditions reflected by the appointment document; and
(6) Make a reasonable and serious attempt to provide the relevant reference materials, training, and
supervision necessary to avoid any mistakes of law or fact to the persons responsible for the pertinent
personnel transactions; and
(7) Act in a manner that does not improperly diminish the rights and privileges of other persons affected
by the appointment, including other eligibles."
The Board determined that while Petitioner acted under a good faith belief that she qualified for the
promotions/classifications, the DFEH failed to exercise good faith in confirming her qualifications. The
Board relied on the testimony of Kim Farrell who testified that the Petitioner's personnel file did not
contain copies of her education transcripts, and the testimony of Robin Icelow, who testified that she
could not recall processing an evaluation of Petitioner's qualifications, and did not keep any notes as to
what tasks she would have undertaken or documents she would have reviewed in doing so. The Board
also relied on the testimony of Chris Thomas who indicated that she had raised concerns that Petitioner
was not qualified, especially in light of the lack of documentation, but had been rebuffed and told that
once Petitioner had been in the position for a year, it wouldn't matter whether she was qualified. The
Board determined that DFEH had failed to follow subsections 1, 2, 4, 6, and 7, of California Code or
Regulations, title 2, section 8.
While Petitioner may have been successful in her positions with DFEH, and may have had a good faith
belief that she qualified for all positions she held, substantial evidence was presented to the Board that
DFEH failed to exercise good faith in determining whether Petitioner was indeed qualified for these
positions.
The Informal Hearing
Petitioner alleges she was denied due process because she was only provided with an informal hearing,
and the circumstances did not qualify for an informal hearing pursuant to Government Code section
11445.20.[2] Petitioner contends that in her case there were disputed issues of material fact, and the
monetary amount at stake was more than $1,000, making the matter inappropriate for an informal

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hearing. As this argument was not raised until Petitioner's reply brief, Respondent does not address it in
the opposition brief. The Court allowed time for further briefing by Respondent on this issue, which
Respondent filed on October 14, 2014.
Even if Petitioner had properly raised this argument in her opening brief, the argument fails. There is no
evidence that the SPB failed to properly separate its administrative tasks from the investigative,
prosecutorial and adjudication functions. Further, the informal hearing is authorized by California Code
of Regulations, title 2, section 53.1(a)(2).[3] Section 53.1(a)(2) provides, "(a) Unless otherwise assigned,
the following matters will be assigned to the informal hearing process...(2) Appeals from voided civil
service appointments..." Consequently, the informal hearing process was expressly permissible
pursuant to Government Code section 11445.20, and Petitioner has not suffered any violation of due
process and there is no evidence that Petitioner was prejudiced by the informal hearing process.
Conclusion
Petitioner has failed to prove a lack of substantial evidence to support the Board's decision that the
DFEH unlawfully appointed Petitioner to the positions of FEH Consultant III (Specialist) and FEH
Administrator I. Petitioner did not unequivocally qualify for the promotions, and DFEH failed to pursue
an inquiry regarding her credentials at the time the promotions were awarded. No documentation was
ever produced indicating that the DFEH requested copies of Petitioner's educational transcripts prior to
the promotions, clearly a failure to act in good faith. While perhaps Petitioner's credentials and
experience could have been construed to meet the classification qualifications, there is substantial
evidence to support the Board's determination that she did not have the requisite qualifications. The
Petition for Writ of Mandate is denied.
///////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////
In the event that this tentative ruling becomes the final ruling of the Court, in accordance with Local Rule
1.06, counsel for Respondent is directed to prepare an order denying the petition, incorporating this
ruling as an exhibit to the order, and a separate judgment; submit them to counsel for Petitioner for
approval as to form in accordance with Rule of Court 3.1312(a); and thereafter submit them to the Court
for signature and entry in accordance with Rule of Court 3.1312(b).
_______________________________
[1] Although Petitioner was appointed as a Consultant III, she claimed she was eligible for this position because she had one
year of State experience "performing the duties of a Fair Employment and Housing Consultant II. Consequently, the
Consultant II qualifications and job duties are relevant.
[2] Although Petitioner pled this argument in her Petition, she failed to mention it in her opening brief and waited until her
reply brief to attempt to resurrect the claim. This appears to be an attempt to sandbag the Respondent, which is improper.
Petitioner should have discussed this line of argument in her opening brief.
[3] Government Code section 11445.20 provides that an informal hearing may be used when "by regulation, the agency has
authorized use of an informal hearing."

COURT RULING
The matter is argued and submitted.
The Court AFFIRMS the tentative ruling.

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