1

Filed 2/10/22 Smith v. Cal. State Personnel Board CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

T. FITZGERALD SMITH,

Plaintiff and Appellant,

v.

CALIFORNIA STATE PERSONNEL 

BOARD,

Defendant and Respondent;

CALIFORNIA UNEMPLOYMENT 

INSURANCE APPEALS BOARD,

Real Party in Interest and 

Respondent.

E074300

(Super. Ct. No. CIVDS1908082)

ORDER MODIFYING OPINION

 AND DENYING PETITION

 FOR REHEARING

 [NO CHANGE IN JUDGMENT]

Appellant T. Fitzgerald Smith’s petition for rehearing is denied. The opinion filed 

in this matter on January 24, 2022, is modified as follows:

The following footnote is added to at the end of the last sentence in section IV.B. 

of the opinion:
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“In his reply brief, Smith argues the SPB lacked jurisdiction and violated his due 

process rights. Smith forfeited these arguments by failing to raise them in his opening 

brief. (See City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 

1271, 1318 [city forfeited argument that agency lacked jurisdiction by raising the issue 

only in its reply brief]; H.N. & Frances C. Berger Foundation v. City of Escondido 

(2005) 127 Cal.App.4th 1, 15 [party forfeited due process argument raised for first time 

in reply brief].)”

Except for this modification, the opinion remains unchanged. This modification

does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.

cc: See attached mailing list
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MAILING LIST FOR CASE: E074300 

T. Fitzgerald Smith v. California State Personnel Board; California Unemployment Insurance 

Appeals Board 

Superior Court Clerk

San Bernardino County 

8303 N. Haven Ave 

Rancho Cucamonga, CA 91730 

 

Leland P. McElhaney 

Brunick, McElhaney & Kennedy 

1839 Commercenter West 

P.O. Box 13130 

San Bernardino, CA 92423-3130 

 

Chian He 

State Personnel Board 

801 Capitol Mall, #MC53 

Sacramento, CA 95814-4806 

 

Hima Raviprakash 

Office of the Attorney General 

1515 Clay Street, 20th Floor 

PO Box 70550 

Oakland, CA 94612 
1

Filed 1/24/22 Smith v. Cal. State Personnel Board CA4/2 (unmodified opinion)

NOT TO BE PUBLISHED IN 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

T. FITZGERALD SMITH,

Plaintiff and Appellant,

v.

CALIFORNIA STATE PERSONNEL 

BOARD,

Defendant and Respondent;

CALIFORNIA UNEMPLOYMENT 

INSURANCE APPEALS BOARD,

Real Party in Interest and 

Respondent.

E074300

(Super. Ct. No. CIVDS1908082)

OPINION

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge 

Affirmed. 

Brunick, McElhaney & Kennedy and Leland P. McElhaney, for Plaintiff and 

Appellant.
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Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, 

Fiel D. Tigno and Hima Raviprakash, Deputy Attorneys General, for Real Party In 

Interest and Respondent.

No appearance by Defendant and Respondent.

I.

INTRODUCTION

Appellant T. Fitzgerald Smith was an Administrative Law Judge (ALJ) for the 

California Unemployment Insurance Appeals Board (the Board). While presiding over a 

hearing involving alleged workplace sexual harassment, Smith made comments that he 

concedes were inappropriate. In response to a complaint about Smith’s comments, the

Board terminated him. The State Personnel Board (the SPB) upheld his termination, as 

did the trial court.

Smith appeals. He does not dispute that his inappropriate comments warranted 

discipline, but he argues his dismissal was too harsh a penalty. We conclude the SPB did 

not abuse its discretion in finding that Smith’s dismissal was appropriate. We therefore 

affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The Employment Development Department (EDD) denied Enrique Sandoval’s 

claim for unemployment benefits because he was terminated for allegedly sexually 
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harassing a coworker, Lopez. Smith, who had been an ALJ for about nine years, presided 

over Sandoval’s appeal of the EDD’s decision.

At a hearing on the matter, Sandoval’s employer’s head of human resources, Jeff 

Stumbo, testified about his investigation into Sandoval’s alleged harassment. Stumbo 

testified that Sandoval made several unwelcome advances on Lopez, tried to kiss her, 

encouraged her to meet him at a hotel, and texted her repeatedly. Lopez feared for her 

safety because of Sandoval’s behavior. 

Sandoval’s attorney, Nathan Kased, cross-examined Stumbo. During his crossexamination, Kased asked Stumbo about Lopez’s appearance and her relationship with 

Sandoval. The following colloquy between Kased and Stumbo took place: 

“KASED: Your definition - you know again, the - the [employee] handbook that I 

felt was a little blurry; is romantic relationship defined in the handbook anywhere?

“STUMBO: The word romantic I doubt is in there, but sexual harassment -

unwelcome verbal, physical, and visual conduct that is based on particular characteristics 

and interferes with work performance constitutes harassment that’s prohibited by this 

policy. And - then if you’re looking - I’m looking at Exhibit 13-1 and 2, which defines 

harassment.

“KASED: Yeah, I-I believe you. I mean, that’s the standard doctrine of the 

definition of - of sexual harassment or misconduct, unwelcome over a period of time. I 

get that part. In terms of romantic relations - anything defined in that regard?”
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Smith then interjected: “I’m not so naive as to think that romance is hearts, 

flowers, candy on - on Mother’s Day. Romantic means we’re gonna go somewhere and 

have sex; that’s what romantic means in the modern context.”

Kased continued his cross-examination, and Smith again interjected with 

comments that are the subject of this appeal:

“KASED: I - I felt otherwise, but - but that seems to be a pretty blunt statement.

“[SMITH]: No, I-I-I-I don’t believe it has any other connotation.

“KASED: Okay. That’s fine, your Honor; I’ll move on. Mr. Stumbo, have you 

ever met Lopez in person?

“STUMBO: Yes.

“KASED: Okay. And you’ve seen what she looks like, correct?

“STUMBO: I know what she looks like, yes.

“KASED: Okay. And can you describe her a little bit.

“STUMBO: What’s the purpose of that?

“KASED: Her appearance. It’s – it’s relevant. Can you describe it?

“STUMBO: Latina, female, long hair.

“KASED: Okay. Is she overweight?

“STUMBO: Yes, she is.

“KASED: A couple hundred pounds?

“STUMBO: Oh, I don’t know about that. I don’t – I don’t have any idea what she 

weighs.
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“KASED: Okay. Do you find – do you think she’s an attractive woman, 

objectively speaking?

“STUMBO: I – I don’t understand this line of questioning, your Honor.

“[SMITH]: Well, I do. 

“KASED: I’m just asking . . .

“[SMITH]: It – it - it’s a question. It’s fair. Is – is Ms. Lopez a person that would 

be considered you know, an eight as opposed to a two? (Laughter.) . . . .

[¶]

“STUMBO: I mean she’s, I think several people probably do find her attractive. 

She clearly has a long-term boyfriend and a - a one-year-old daughter. Do I find her 

personally attractive? No.

“KASED: No. But – and she’s overweight, correct?

“SMITH: Well if she just had a baby she would be. You know, let’s give her the 

benefit of that doubt.”

Stumbo’s employer filed a formal complaint against Smith for his comments 

during the hearing. In response, Smith sent a letter to the Presiding ALJ. Smith 

acknowledged that he “may have committed an error,” but had not had the “opportunity 

to defend or explain [his] actions.” Smith explained that “anticipated several defenses 

coming from [Sandoval’s] attorney” and thus thought his questions were necessary to 

elicit testimony from Stumbo relevant to Sandoval’s defenses. Smith claimed his “asking 

a clearly offensive question was an attempt to wake up the spokesperson for the employer 
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[Stumbo] and to develop the record.” Smith thus intended for his questions to “pull 

answers” from Stumbo and “goad” him “to go to his memory and not just his notes.” 

The Board later terminated Smith. The Board reasoned that, as an ALJ, Smith was 

held to the California Code of Judicial Ethics “and its high standards of conduct.” The 

Board explained that those standards mandated Smith to maintain “public confidence in 

the integrity and impartiality of the judiciary,” and that he failed to do so during the 

Sandoval hearing. In particular, Smith failed to conduct “a fair, impartial, and dignified 

hearing” by making “irrelevant, prejudicial, and degrading” comments, which showed 

that he could not perform his duties as an ALJ. 

Smith appealed the Board’s decision to the SPB. An ALJ for the SPB, ALJ Teri 

L. Block, held an evidentiary hearing and issued a Proposed Decision in which she

recommended that Smith be suspended for six months. Although the SPB adopted ALJ 

Block’s findings of facts and conclusions of law in her Proposed Decision to the extent 

they were consistent with the SPB’s decision, the SPB rejected ALJ Block’s 

recommendation that Smith be suspended. Instead, the SPB found that Smith’s dismissal 

was “just and proper.” The SPB therefore upheld the Board’s decision to dismiss Smith.

Smith filed a petition for a writ of mandate in superior court seeking to reverse the 

SPB’s decision. The trial court denied the petition, and Smith timely appealed.
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IV.

DISCUSSION

Smith does not deny his comments at the Sandoval hearing were inappropriate. 

Nor does not dispute that he should be disciplined for them. But he asserts that his 

dismissal was an improper, overly harsh penalty. We conclude the SPB did not abuse its 

discretion in finding that Smith’s dismissal was appropriate.

A. Standards of Review

We review the SPB’s factual findings for substantial evidence. (Pollak v. State 

Personnel Board (2001) 88 Cal.App.4th 1394, 1404.) Substantial evidence is “evidence 

‘of ponderable legal significance, . . . reasonable in nature, credible, and of solid value.’” 

(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) In conducting our 

review for substantial evidence, we review the record in the light most favorable to the 

SPB. (Pollak v. State Personnel Board, supra, at p. 1404.)

“‘[T]he determination of the penalty by the administrative body will not be 

disturbed unless there has been an abuse of its discretion.’” (Skelly v. State Personnel Bd.

(1975) 15 Cal.3d 194, 217 (Skelly).) “‘In reviewing the exercise of this discretion we 

bear in mind the principle “[c]ourts should let administrative boards and officers work 

out their problems with as little judicial interference as possible. . . . In determining 

whether an agency abused its discretion in assessing a particular penalty, a court will look 

to ‘whether reasonable minds may differ as to the propriety of a penalty imposed.’ 

[Citations.] Judicial interference with the agency’s assessment of a penalty ‘will only be 
8

sanctioned when there is an arbitrary, capricious or patently abusive exercise of 

discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 

Cal.App.4th 44, 54.) “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.” (Fout v. State Personnel Bd. (1982) 136 Cal.App.3d 817, 821.) On the other 

hand, we give no deference to the trial court’s determination of whether the SPB abused 

its discretion. (Pollak v. State Personnel Board, supra, 88 Cal.App.4th at p. 1404.)

B. Analysis

Smith argues that the SPB was required to impose progressive discipline because 

he has no record of discipline. To support his argument, he cites multiple precedential 

decisions from the SPB where progressive discipline was imposed for first-time offenders 

like him. In his view, these decisions show that the SPB had to progressively discipline 

him before dismissing him because his single offense was not sufficiently “egregious” to 

warrant dismissal.

We disagree. For one thing, none of the SPB decisions Smith relies on involved

an ALJ. (See In re Watson SPB Dec. No. 94-10, 1994 WL 16006541 (Deputy Labor 

Commissioner II); In re R.N. SPB Dec. No. 92-07 (Correctional Officer); In re Virga 

1996 SPB Dec. No. 96-05 WL 33404983 (Data Processing Manager II); In re Manayao 

(1993) SPB Dec. No. 93-14 (School Facilities Program Analyst I). Those decisions do 

not apply here because judicial officers, including ALJs, are held to a “higher standard” 

than other state employees. (Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 
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395, 400 (Ackerman); see also Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 

820, 824 [“There are certain professions which impose upon persons attracted to them, 

responsibilities and limitations on freedom of action which do not exist in other callings. 

Public officials such as judges, policemen, and school teachers fall into such a 

category.”].) As the SPB noted in upholding the police officer’s dismissal in Ackerman, 

his conduct “probably” would have warranted “some form of punishment less than 

dismissal if he was not a police officer,” but his dismissal was appropriate because “a 

police officer must be held to a higher standard than other employees.” (Ackerman, 

supra, at pp. 338-339.)

More to the point, “[w]hen it comes to a public agency’s imposition of 

punishment, ‘there is no requirement that charges similar in nature must result in identical 

penalties.’” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230.) The SPB

was not “bound to deal with [Smith’s case] in the same manner as it has dealt with past 

cases that might seem comparable.” (Grannis v. Board of Medical Examiners (1971) 19 

Cal.App.3d 551, 566; accord, Marino v. City of Los Angeles (1973) 34 Cal.App.3d 461, 

466.) This is particularly true when, as here, the Board did not have a policy that 

mandated progressive discipline under the circumstances. (See Kazensky v. City of 

Merced, supra, 65 Cal.App.4th at p. 73.) “The question whether progressive discipline 

was appropriate in [Smith’s] case was a matter within the [SPB’s] discretion. (Talmo v. 

Civil Service Com., supra, at p. 230.) 
10

Smith contends that his dismissal was unwarranted because he is unlikely to repeat 

the inappropriate behavior and no one else had ever complained about him. Although it

is undisputed no one had complained about Smith before the Sandoval hearing, 

substantial evidence supports the SPB’s finding that he is likely to repeat his offending 

behavior.

ALJ Block found that Smith is likely to repeat his offending behavior because, in 

her view, Smith did not take “full responsibility for all of his misconduct,” in particular 

his “crass definition of ‘romance.’” During the evidentiary hearing, Smith argued that his 

comments about “romance” were misunderstood. He claimed that he was trying to 

explain that the Sandoval hearing did not concern romance, but rather was about a 

“supervisor telling [a subordinate] he wanted to have sex with her.” ALJ Block found 

Smith’s testimony that his comments were taken out of context instead of taking 

responsibility for them “suggest[ed] a higher likelihood of recurrence.” Because this 

factual finding is supported by substantial evidence, we must defer to it. (Fisher v. State 

Personnel Board (2018) 25 Cal.App.5th 1, 23.) Substantial evidence thus supports the 

SPB’s finding that Smith was likely to repeat his offending behavior, which in turn 

supports its decision to uphold Smith’s dismissal. (Skelly, supra, 15 Cal.3d at p. 218.)

In any event, the “essential test” in deciding the appropriate employee penalty “is 

whether the conduct harms the public service.” (Deegan v. City of Mountain View (1999) 

72 Cal.App.4th 37, 50.) So when assessing whether the SPB abused its discretion in 

imposing a certain penalty, “the overriding consideration . . . is the extent to which the 
11

employee’s conduct resulted in, or if repeated is likely to result in, ‘[harm] to the public 

service.’ [Citations.]” (Skelly, supra, 15 Cal.3d at p. 218.) 

The SPB has “broad discretion in determining . . . whether dismissal or suspension 

is the appropriate sanction.” (California Teachers Assn. v. State of California (1999) 20 

Cal.4th 327, 343.) This is because “‘a disciplinary discharge often involves complex 

facts and may require a sensitive evaluation of the nature and seriousness of the 

misconduct and whether it warrants the grave sanction of dismissal.’ [Citation.]” (Id. at 

pp. 343-344.)

Although others may disagree with the SPB’s decision that Smith’s dismissal was 

appropriate—as ALJ Block did—the SPB abuses its discretion in fashioning a 

disciplinary penalty only when its decision “exceeds the bound[s] of reason.” (Ng v. 

State Personnel Bd. (1977) 68 Cal.App.3d 600, 605.) Its decision did not do so. 

As an ALJ, Smith was held to a “higher standard” than other state employees. 

(Ackerman, supra, 145 Cal.App.3d at p. 400.) He recognizes that he did not live up to 

that standard by exercising “poor judgment” during the Sandoval hearing. He also 

acknowledges that he violated several canons of the Code of Judicial Ethics by behaving 

in an undignified manner and making comments during the Sandoval hearing that 

objectified Lopez and could reasonably be understood as reflecting gender bias. Smith 

admits that his “deliberate and affirmative misconduct . . . violated his obligations as a 

judge and impaired the integrity of the proceedings before him.” He also admits that his 
12

comments “harmed the public service by discrediting [the Board] and himself” as an 

ALJ. 

Given Smith’s concessions and the “higher standard” applied to ALJs, “[w]e 

cannot say that, as a matter of law, [the SPB] erred” in finding that his dismissal was 

appropriate. (Ackerman, supra, 145 Cal.App.3d at p. 400; see also Skelly, supra, 15 

Cal.3d at p. 218 [“overriding consideration” in deciding employee discipline is whether 

employee’s conduct harmed the public service].) This is not an “exceptional case” where 

“reasonable minds cannot differ on the appropriate penalty.” (County of Los Angeles v. 

Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877.) Because 

the SPB’s decision to uphold Smith’s dismissal was within its discretion, we affirm the 

judgment.

IV.

DISPOSITION

The judgment is affirmed. The SPB may recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.