Filed 5/27/15 Stinson v. LA County Civil Service Com. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DEXTER STINSON,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY CIVIL SERVICE COMMISSION,

Defendant.

LOS ANGELES COUNTY PROBATION DEPARTMENT,

Real Party in Interest and Respondent. B253372

(Los Angeles County Super. Ct. No. BS134549)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Joanne O’Donnell, Judge. Affirmed. Romero Law, Alan J. Romero, Elliot A. Rosenberger, for Plaintiff and Appellant. No appearance for Defendant. Law Offices of William Balderrama, William Balderrama and Daniel C. Carmichael, III, for Real Party in Interest and Respondent.

__________ ___________2 Plaintiff and appellant Dexter Stins on was discharged as a deputy probation officer with the Los Angeles County Probatio n Department for excessive use of force on

a minor. Stinson filed an administrative a ppeal with the Los An geles County Civil Service Commission (Commission), which upheld his discharge. Stinson then filed a petition for writ of mandate, seeking to overtu rn the Commission’s ruling. (Code Civ. Proc., § 1094.5.) In this appeal from the ju dgment of denial of the mandate petition,

Stinson contends the Probation Department’s withholding of crucial materials constituted

a violation of his Skelly 1 due process rights. Specifically , Stinson argues the Probation Department failed to provide him with a copy of a surveillance video of the incident that led to his discharge, the Residential Treatm ent Services Bureau (RTSB) Safe Crisis Management policy, and his trai ning logs. Stinson further contends his discharge was not an appropriate penalty. We reject Stinson’s contentions and affirm.

FACTUAL AND PROCED URAL BACKGROUND

Background

Stinson started his employment with the Probation Department in 1994. He was promoted to Deputy Probation Officer I in 1996, and to Deputy Probation Officer II in

1999. At the time of the incident which le d to his discharge, Stinson was assigned to Camp Scobee, one of six camps at Challenger Memorial Youth Cent er. Camp Scobee is part of the Probation Department’s RTSB. In November 2004, the Probation Depart ment discharged Stinson for excessive use of force on a minor. After Stinson appe aled to the Commission, a hearing officer

determined that Stinson had no t committed all of the misconduc t alleged, but had used an inappropriate restraint and some excessive force on the minor. The hearing officer did

1 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 ( Skelly ).3 not believe that the discharge was an appr opriate penalty and recommended a 30-day suspension. That recommendation was adopted by the Commission. 2 Stinson received performance evaluations that rated him “ver y good” in the two rating periods prior to the incident leadi ng to his termination. The most recent performance evaluation given to Stinson after the incident praised him for being “able to

de-escalate volatile situations th at may arise in the dorm.”

The Incident

Stinson was conducting showers for a group of minors at Camp Scobee during the evening of July 3, 2009. Af ter the minors exited the showers, they were given a “shower roll,” containing a T-shirt, underwear, and so cks. When the minors finished showering, they were required to go to their beds, put on their shower roll, and get between the sheets. Deputy Probation Officer Roger Robins on was in the contro l center while Stinson was conducting the showers. Robinson’s j ob was to observe the minors in, and exiting from, the showers. Any prob lems with clothing were ha ndled after all minors have

showered.

After minor Naim A. returned from the shower with his shower roll and went to his bed, Stinson observed Naim rip up his underwear and throw it on the ground. Naim

then sat on his bed with a towe l around his waist. Stinson told Naim to get between the sheets. Naim responded, “I don’t have any fucking underwear.” Naim did not comply after Stinson repeated his inst ruction. The other minors c ontinued the shower movement

without incident. After Naim continually refused to obey hi s instructions, Stinson walked over from

the other side of the dorm to where Naim’s bed was located. When Stinson reached

2 The Probation Department did not in corporate the Commission’s action into Stinson’s personnel file un til February 10, 2010.4 Naim’s bed, he told Naim to leave the bed area and go to a nearby table to cool off. Naim responded, “Fuck that. I’m not doing anyt hing until I get some underwear.” Naim stood up, pulled a pair of shorts on over th e towel he was wearing, and then sat back down on his bed. As Naim started to ge t up from the bed, Stin son pulled pepper spray out of his pocket. Naim sat back down. Stin son then told Naim to stand up and put his hands behind his back so he could put handcu ffs on him. Naim responded, “Fuck that. I’m not doing anything.” Stinson then gave Naim a pepper spray warning. When Naim did not comply, Stinson gave him a second warning and pointed to the ground. After Naim failed to respond, Stinson sprayed Na im with a two-second burst of pepper spray and took Naim down to the ground.

Robinson noticed the distur bance and quickly approached to assist Stinson. Robinson restrained another minor, Max G., who had attempted to interfere. Another officer removed Max from the dorm. Stinson pl aced his foot on Naim’s back to keep him immobile, eventually placing Naim in handcuffs. Stinson continued the shower

movement with the other minors. Ten minutes after deploying the pepper spray, Stinson

escorted Naim out of the dorm to be decontaminated by the nurse. The Probation Department’s Child Abus e Special Investigations Unit (CASIU) conducted an investigation regarding allegati ons that Stinson had engaged in excessive force against Naim. As part of its investigation, CASIU in terviewed Naim and Stinson,

as well as numerous other minors and sta ff. CASIU determined that the standard procedures for pepper spray were not adhere d to and Stinson “acte d inappropriately and used excessive and unnecessary us e of force on . . . Naim.”

Notice of Intent to Discha rge and Applicable Probat ion Department Policies

By letter dated March 29, 2010, the Prob ation Department notified Stinson of its intent to discharge him from his position as a Deputy Probation Officer II. The notice explained the proposed action was based on (1) misuse of fo rce, (2) falsifying a report, (3) untruthful statements during an offici al investigation, (4) inappropriate and5 unprofessional conduct, and (5) failure to ex ercise sound judgment. The notice stated that the discharge was based on Stinson’s violation of Probati on Department Policy Manual Nos. 15.1 (Employee Conduct) and 15.7 (Corporal Punish ment), as well as Probation Department Directive Nos. 10 94 (Safe Crisis Management) and 1211 (Employee Cooperation Related to Admi nistrative Hearings and Departmental Investigations). The letter outlined Stinson’s Skelly “right to respond either orally or in writing to the charges contained in [the] lette r,” and review “[w]ritten materials, reports, and documents, upon which [t he] action is based.” In an April 29, 2010 letter, Stins on’s counsel requested materials from the Probation Department that were not provided with the Skelly packet, which included a surveillance video of the July 3, 2009 incident. On May 12, 2010, the Probation Department provided Stins on with the opportun ity to view the video before the Skelly meeting with his counsel and a Probation Depa rtment representative present. On May 28, 2010, the Skelly manager met with Stinson and his counsel. By letter dated June 29, 2010, the Proba tion Department informed Stinson he was discharged from his position of Deputy Probation Officer II and from Los Angeles County service effective July 6, 2010. In making its decision, the Probation Department relied heavily on the surveillance video. It al so considered its Guid elines for Discipline, Stinson’s July 3, 2009 Physic al Intervention Report (PIR), 3 CASIU’s report, and witness

interviews. The Probation De partment reviewed Stinson’s performance evaluations, past discipline, and his training lo gs. The notice of discharge a dvised Stinson of his right to appeal his termination and to request a hear ing from the Commission. On July 22, 2010, Stinson appealed and requested a hearing.

3 The Probation Department requires a de puty probation officer to prepare a PIR whenever that officer has a physi cal altercation with a minor.6 The Administrative Proceedings

On September 29, 2010, the Commission defi ned the issues for the parties: “1. Are the allegations contained in the [Probation] [D]epartment’s letter of June 29, 2010, true? [¶] 2. If any or all are true, is th e discipline appropriate? [¶] 3. Was there compliance with the requirements of Skelly rights due process? [¶] 4. If not, what is the remedy.” After five days of evidentiary hear ings in February and April 2011, the hearing officer issued his findings of fact, conclusi ons of law, and recommended decision. The hearing officer’s findings of fact were based on a review of the surveillance video 4 supplemented by testimony from Stinson and Robinson. The hearing officer made the following fi ndings of fact, which are relevant to Stinson’s appeal: “17. The [Probation] Department has a ‘Safe Crisis Management Policy’ that requires [deputy probation office rs] to attempt to de -escalate a situation involving a non-compliant minor prior [ sic ]. [¶] 18. Under the [Probation] Department’s policy, [pepper] spray is not to be deployed if the situation is ‘controlled’ and not to be deployed prior to attempting to use de-escalation techniques. [¶] 19. Shortly prior to the incident, Stinson had a ttended training where these principles were taught. [¶] 20. Stinson did not try to de-escalate the situati on using techniques both familiar and available to him, including seek ing the assistance of other [deputy probation officers] and calling for his supervisor. [¶] 21. Stinson took out his pepper spray and warned Naim that he was going to use it while the dorm was s till in a controlled situation. He also deployed the pepper spray while the dorm was in a controlled situation. [¶] 22. Under the [Probation] Department’s policy, known to Stinson, a minor who is sprayed

should be removed for de-contamination as so on as possible. Stinson waited 10 minutes before removing Naim for decontamination.” The hearing officer made the following conc lusions of law: “1. The [Probation] Department has sustained its bur den of proving that Stinson misused force, acted in an

4 There was no audio available fo r the surveillance video.7 inappropriate manner, and failed to exercise sound judgment, when he used [pepper] spray on a minor in violation of [Probation] De partment policy. [¶] 2. The [Probation] Department failed to sustain its burden of proof that Stins on falsified a report and made untruthful statements during an investigation. [¶] 3. The discipline imposed was appropriate. [¶] 4. There was no violation of Stinson’s Skelly rights.” The hearing officer recommended that the Probation Depart ment’s decision to discharge Stinson be upheld. On September 18, 2011, the Commission ad opted the findings of fact, conclusions of law, and recommendation of th e hearing officer as its final decision. The formal order of the Commission sustaining Stinson’s di scharge was filed October 5, 2011.

Stinson’s Petition for Writ of Administrative Mandamus

Stinson filed his original petition fo r writ of administrative mandamus on November 14, 2011, and his operative third amended verified petit ion on September 13,

2012. Stinson contended the Commission’s deci sion must be set aside for three reasons: (1) the Commission failed to provide Stinson w ith a fair hearing because the Probation Department did not provide him materials that were used in its deci sion of discharge; (2) the Commission’s decision is not supported by th e findings of fact Nos. 17, 18, 20, 21, and 22; and (3) the Commission’s conclusions of law Nos. 1, 3, a nd 4 are not supported by the findings. In a ruling filed September 12, 2013, th e trial court denied the petition. As relevant to the issues on app eal, the trial court found no Skelly violation because “[t]he failure to provide an RTSB [Safe Crisis Mana gement policy] concerns the sufficiency of the Hearing Officer’s finding of fa ct that [Stinson] violated an actual policy.” Stinson did not contest that he was given notice of the charges against him or a meaningful opportunity to be heard. He failed to articulate what pr ejudice which arose from this failure, other than the fact of his discharge. With respect to the Probation Department’s failure to provide Stinson a copy of the su rveillance video, the court held Stinson’s8 contention that he would have been able to better prepare for the hearing did not amount to a due process violation. Additionally, S tinson’s “protestations that he could have better prepared his case if he had access to th e video ignores the fact that the subject of the video is [Stinson’s] conduct, creating a reasonable presumption that he knew what it depicted.” Stinson also provided no eviden ce that he requested and was denied a subsequent viewing of the surv eillance video. Stin son did not establish that the Probation Department’s failure to provide a copy of the video materially prejudiced him in any way. The court reached the same conclusion as to his training logs, finding Stinson presented no argument demonstr ating how the failure to provide the logs prejudiced him. The court concluded that Stinson’s discharg e was an appropriate penalty because his

misconduct involved the unauthorized use of la st-resort force agains t a minor, which is a serious offense. Moreover, the incident wa s the second serious disciplinary action for Stinson involving the inappropriate and ex cessive use of force against a minor. The judgment was entered October 23, 2012. Stinson filed a timely notice of appeal.

DISCUSSION

Standard of Review

“Termination of a nonprobationary public employee substantially affects that employee’s fundamental vested right in employment. ( Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902; McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129.) Accordingly, wh en ruling on a petition for a wr it of administrative mandamus seeking review of procedures that resulted in the employee’s termination, the trial court

examines the administrative r ecord and exercises its indepe ndent judgment to determine if the weight of the evidence supports the findings upon which the agency’s discipline is based or if errors of law were committed by the administrative tribunal. ( Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 [‘when a court reviews an administrative9 determination [affecting a vested fundamen tal right] the court must “exercise its independent judgment on the facts, as well as on the law . . .”’]; Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; McMillen [ v. Civil Service Com., supra, ] at p. 129.)” ( Bautista v. County of Los Angeles (2010) 190 Cal.App.4th 869, 874-875 ( Bautista ).) “On appeal we review the trial court’s factual findings for substantial evidence ( Jackson v. City of Los Angeles, supra, 111 Cal.App.4th at p. 902; Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958 , 967, fn. 1) and its legal determinations . . . de novo (see People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Gai v. City of Selma (1998) 68 Cal.Ap p.4th 213, 219; Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1057.)” ( Bautista, supra, 190 Cal.App.4th at p. 875).

Sufficiency of the Evidence

Contrary to fundamental tene ts of appellate practice, Stin son fails to cite much of

the unfavorable evidence set fo rth above or has done so in a one-sided manner. Stinson

further fails to affirmativel y argue that the judgment is not supported by substantial

evidence. The focu s of Stinson’s opening brief is his contention that his Skelly due process rights were violated and his discha rge was not an appropriate penalty. The Probation Department contends in its responding brief that there was substantial evidence for the trial court to uphold Stinson’s discharg e. In his reply, Stinson “acknowledges that [the Probation Department’s] s ubstantial evidence argument ha s some merit and that [the Probation Department]’s Brief accurately portra ys their version of th e events.” However, Stinson “respectfully asks this Court to du ly weight the record on appeal and the competing narratives in its decision making. ” Although he makes no argument regarding the sufficiency of the evidence, Stinson is essentially urging this court to make an argument on his behalf. (See Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 2 18 [“[a] party who challenges the sufficiency of the evidence to support a finding must set forth, di scuss, and analyze all the evidence on that10 point, both favorable and unfavo rable”].) We decline to do so and deem any challenge to the sufficiency of th e evidence waived. ( Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1374; Oliver v. Board of Trustees (1986) 181 Cal.App.3d 8 24, 832.) Because we draw all legitimate inferences and resolve all evidentiary conflicts in favor of the judgment, we hold the facts support the trial court’s fi nding that there was substantial evidence to uphold the discharge. Moreover, Stinso n’s own admission that the Probation Department’s substantial evidence argument “h as some merit” bolsters the trial court’s finding.

Skelly Was Not Violated

Stinson contends the Proba tion Department withheld critical materials, including

the surveillance video of the July 3, 2009 inci dent, RTSB Safe Crisis Management policy, and his training logs. Because this is an appe al from a writ proceeding, Stinson has the burden of pleading and proving the materials received prior to his Skelly hearing were not sufficient to provide him an oppo rtunity to meaningfully respond at the pretermination stage. ( Gilbert v. City of Sunnyvale (2005) 130 Cal.Ap p.4th 1264, 1281 ( Gilbert ).) We conclude Stinson failed to make an adequate showing.

In Skelly, supra, 15 Cal.3d at page 215, the Calif ornia Supreme Court determined that “due process does not require the state to provide the employee w ith a full trial-type evidentiary hearing prior to th e initial taking of punitive acti on.” The court held that the minimum procedural due process protections required before discip linary action became effective included “notice of the proposed ac tion, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the author ity initially imposing discipline.” ( Ibid. , italics added.) “Subsequent to Skelly , the California Supreme Court and the United States Supreme Court have repeatedly recognized that due process [in this cont ext] is a flexible concept” and does not require the pr oduction of every document later offered at the posttermination hearing. ( Gilbert, supra, 130 Cal.App.4th at pp. 1276, 1280.) Skelly merely11 requires an “unambiguous warning that matters have come to a head, coupled with an explicit notice to the employee that he or she now has the opportunity to engage the issue and present the reasons opposing such a disposition.” ( Coleman v. Regents of University of California (1979) 93 Cal.App.3d 521, 525-526 .) “[T]he pretermination hearing ‘should be an initial check ag ainst mistaken decisions—esse ntially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” ( Gilbert, supra, at p. 1277.) “‘To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsa tisfactory employee.’ [Citation.]” ( Ibid .) Stinson contends the Probation Departme nt did not provide him a copy of the

surveillance video in violation of his Skelly due process rights. In an April 29, 2010 letter, Stinson’s counsel requested that the Probation Department provide Stinson with the surveillance video, among other materials. In response, the Probation Department’s Head Civil Service Representative Rahman Williams contacted Stinson’s counsel and told her that there were privacy concerns re garding the identity of the minors. Williams explained it was the Probation De partment’s practice to not “p rovide actual copies, but we will allow the employee who is the subject of discipline to come review at our facility as many times as they need to .” Williams then scheduled bo th Stinson and his counsel to

view the surveillance video at the Probati on Department’s facility on May 12, 2010.

Stinson viewed the video that day with his counsel and W illiams present. Stinson was given the opportunity to review the vide otape as many times as he wanted.

We conclude Stinson’s unrestricted acce ss to the surveillan ce video pr ovided him adequate notice of the charges against him and a meaningful opportunity to rebut them at the pretermination hearing. Stinson must show prejudice before administrative adjudicatory decisions will be reversed. (E.g., English v. City of Long Beach (1950) 35 Cal.2d 155, 159-160; Swars v. Counsel of City of Vallejo (1949) 33 Cal.2d 86 7, 872; see,

e.g., Southern Cal. Jockey Club v. California Horse Racing Bd. (1950) 36 Cal.2d 167, 176 [requiring a miscarriage of justice for reve rsal of administrative decisions].) Nothing in the record suggests that Stin son lacked sufficient time to view the video or that he was12 denied the opportunity to furt her view the video. Stinson does not challenge the trial court’s interpretation of the video or its authenticity, only the Probation Department’s failure to provide him a copy. Stinson speculat es that he would have been better prepared

for his Skelly meeting if he had received a copy of the video, but does not explain how he would have prepared differe ntly, let alone how it would have changed the Probation Department’s decision to discharge him. S tinson does not establish that the Probation Department’s failure to provide a copy of the video materially prejudiced him in any concrete way. Stinson contends he was not provided w ith a Safe Crisis Ma nagement policy as applied to RTSB staff. Instead, the Probatio n Department produced only a Safe Crisis Management policy, as applied to De tention Services Bureau (DSB) staff. 5 We agree

with the trial court that Stinson’ s contention does not implicate his Skelly due process rights. The failure to provide a RTSB policy to Stinson concerns th e sufficiency of the hearing officer’s finding of fact that Stinson violated an act ual policy applicable to him. 6 Stinson’s argument does not suggest he was not given notice of the charges against him or a meaningful opportunity to be heard. Nor does Stinson articulate what prejudice arose from this failure, other than his di scharge. This is not a basis for a Skelly due process rights violation. Stinson lastly argues his training l ogs were not provided by the Probation Department in violation of his Skelly due process rights. S tinson presents no further argument demonstrating how the failure to provi de him with the training logs deprived him of notice of the charges against him or a meaningful opportunity to respond at the pretermination hearing. The tr aining logs were used by the Probation Department only to support the contention that Stin son was trained in the Safe Crisis Management policy and

5 RTSB staff work in juvenile camps, and DSB staff work in juvenile halls.

6 The hearing officer found a violation of RTSB policy based on Stinson’s own training and testimony. Stins on’s training included an eight hour course on the Safe Crisis Management policy in March 2009, just a few months prior to the incident, and Stinson’s testimony indicated his actions were contrary to his training.13 had knowledge of that policy. ( Gilbert, supra, 130 Cal.App.4th at pp. 1275-1281 [employer need not supply all documents in the file to the employee prior to a Skelly hearing, only sufficient mate rial to enable the employee to respond to the specific charges].) The training logs were not critical documen ts required under Skelly , and therefore not a violation of Stinson’s due process rights.

The video surveillance and other materials relied on by the Probation Department, which were made available to Stinson prior to his pretermination hearing, adequately provided an explanation of the evidence supporting its decision and notice of the substance of the relevant supporting evidence, sufficient to enable Stinson to adequately respond at the pretermination stage. ( Gilbert, supra, 130 Cal.App.4th at p. 1280.) We

hold Stinson did not meet his burden of demo nstrating that the Probation Department failed to substantially comply with the pretermination requirements of Skelly

.

The Penalty Imposed was Not Excessive

Stinson challenges the appropriateness of the discipline imposed on him given his lack of training and knowledge of the Safe Crisis Management policy, his supervisor’s review of the incident, and his past performance evaluations. We hold that the gravity of Stinson’s misconduct, coupled with the prev ious 2006 suspension, provided an ample justification for Stinson’s disciplinary discharge. “‘[I]n a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’” ( Skelly, supra, 15 Cal.3d at p. 217; accord, Bautista, supra, 190 Cal.App.4th at p. 879; West Valley–Mission Community College Dist. v. Concepcion (1993) 16 Cal.App.4th 1766, 1778- 1779.) “Neither an appellate

court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of p unishment imposed. [Citation.]” ( Barber v. State

Personnel Bd. (1976) 18 Cal.3d 395, 404.) “It is only in the exceptional case, when it is

shown that reasonable minds cannot differ on th e propriety of the penalty, that an abuse14 of discretion is shown.” ( Bautista, supra, at p. 879, citing West Valley–Mission Community College Dist v. Concepcion, supra, at pp. 1778-1779; see Talmo v. Civil

Service Com . (1991) 231 Cal.App.3d 210, 230 [uphol ding discharge of deputy sheriff];

cf. Pegues v. Civil Service Com . (1998) 67 Cal.App.4th 95, 107 [no abuse of discretion

when reasonable minds could differ as to the propriety of the penalty]; Szmaciarz v. State

Personnel Bd. (1978) 79 Cal.App.3d 904, 921 [even in instances when the trial or reviewing court believes the pe nalty was too harsh, it cannot interfere with an agency’s imposition of a penalty].)

Stinson contends he had no knowledge or training in the Safe Crisis Management policy. As stated in the previous section, his contention goes to the hearing officer’s factual findings, which he failed to challenge on appeal. He further failed to contest the hearing officer’s finding of fact No. 19 in hi s writ petition, which states, “Shortly prior to the incident, Stinson had atte nded training where these princi ples were taught,” referring the Safe Crisis Management policy. Therefore any challenge to that fact is forfeited as it was undisputed that Stinson ha d training and knowledge of the policy prior to the July 3, 2009 incident. Stinson gives significant wei ght to the review of the incident by his immediate supervisor, Robert Moore, in suppo rt of his contention that the penalty was

excessive. Moore concluded that Stinson acted within departmental policies and procedures. We find no fault with the hearin g officer’s decision affording no weight to Moore’s opinion because he was not presen t at the incident, did not review the surveillance video, and based his conclusion solely on Stin son and Robinson’s reports.

Stinson does not address the deficiencies in Moore’s review on appeal, and we decline to disagree with the hearing officer’s assessment without any argument by Stinson. Stinson lastly contends the Probation Department failed to take into account his “historically ‘very good’” performance evaluations. The Prob ation Department did, in fact, consider Stinson’s performance evaluations, along with ot her materials in making the decision to discharge him. As this was a serious o ffense, discharge was within the range of15 discipline contained in the Probation De partment’s Guidelines for Discipline. 7 Additionally, the incident was the second serious disciplinary action for Stinson involving the inappropriate and excessive use of force. The first incident involved inappropriate restraint and excessive force against a mi nor, resulting in a 30-day suspension in 20 06. We conclude discharge was an appropriate penalty for Stinson’s misconduct, in light of the nature of the offe nse and his similar previous infraction.

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

GOODMAN, J. *

7 The Guidelines for Discip line regarding discharge state in pertinent part: “Discharges occur when prior discipline has not corrected the employee’s unacceptable behavior or performance or in circumst ances where a single act of misconduct has rendered the individual unsuitable for further em ployment. [¶] It is not necessary to impose each step of discipline . . . [s]ome fact ors [include] the seriousness of the offense, training, the frequency . . . .”

* Judge of the Los Angeles County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.