Department of Corrections v. State Personnel Board

Real party in interest Johnny C. Wallace (Wallace) was dismissed from his position as a correctional sergeant with plaintiff California Department of Corrections (CDC or Department) following an incident at Deuel Vocational Institution (DVI) involving himself and another correctional officer, G. Picone (Picone). In a private conversation between Wallace and Picone, Wallace, a White male, complained to Picone, a Hispanic female, about preferential treatment bestowed on Hispanic employees by CDC, used profane language, and shook Picone by the collar to emphasize his point.

Wallace appealed his dismissal to defendant State Personnel Board (Board). The Board concluded Wallace’s termination was based in part on protected First Amendment speech and reduced the discipline to a 30-day suspension.

CDC petitioned the superior court for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) to overturn the Board’s decision reducing the dismissal to a suspension. The superior court concluded the Board erred in finding any part of Wallace’s conduct protected by the First Amendment. The court granted the writ and directed the Board to set aside its decision and to reconsider…

I respectfully dissent.

The California Department of Corrections (CDC) charged Sergeant Johnny C. Wallace with, among other things, unlawful discrimination pursuant to Government Code section 19572, subdivision (w), 1 which subjects employees to discipline for unlawful discrimination. I agree with the trial court that unlawful discrimination was shown, and the State Personnel Board (Board) abused its discretion in concluding Wallace’s free speech rights precluded discipline for unlawful discrimination. I would affirm the trial court’s decision to direct the Board to set aside its decision and reconsider appropriate punishment. 2

The record shows, and the Board found, Sergeant Wallace resented Hispanic officers receiving preferential treatment under CDC’s affirmative *152 action policy. He resented G. Picone, a female Hispanic officer, because he believed she, as a minority female, had received undeserved preferential treatment under CDC’s affirmative action policy. Because of this animosity, Wallace criticized Picone to others in the workplace. 3 When Picone asked him to stop, he impliedly refused, slapping the wall in anger and stating through clenched teeth that he was “tired…

Loren E. McMaster for Real Party in Interest and Appellant.

Melissa M. Meith and John P. Winn for Plaintiff and Respondent.

OPINION

PUGLIA, P.J.

Real party in interest Johnny C. Wallace (Wallace) was dismissed from his position as a correctional sergeant with plaintiff California Department of Corrections (CDC or Department) following an incident at Deuel Vocational Institution (DVI) involving himself and another correctional officer, G. Picone (Picone). In a private conversation between Wallace and Picone, Wallace, a White male, complained to Picone, a Hispanic female, about preferential treatment bestowed on Hispanic employees by CDC, used profane language, and shook Picone by the collar to emphasize his point.

Wallace appealed his dismissal to defendant State Personnel Board (Board). The Board concluded Wallace's termination was based in part on protected First Amendment speech and reduced the discipline to a 30-day suspension.

CDC petitioned the superior court for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) to overturn the Board's decision reducing the dismissal to a suspension. The superior court concluded the Board erred in finding any part of…