1 Filed 10/8/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO

JENARO CARRASCO, Plaintiff and Appellant,

v. STATE PERSONNEL BOARD, Defendant and Respondent;
DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and R espondent. E072892 (Super.Ct.No. CIVDS1514663)
OPINION

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed. Robert Lucas Law, Robert W. Lucas; Phillips & Rickards and Wendell Phillips for Plaintiff and Appellant. Alvin Gittisriboongul and Dorothy Bacskai Egel for Defendant and Respondent.2 Nechelle L. Bixby for Real Party in Intere st and Respondent. Plaintiff and appellant Jenaro Carrasco worked as a parole agent for real party in interest Department of Corrections and Rehabilitation ( d epartment ) for five years. He was then promoted to the position of s pecial a gent and was subject to a 12

- month probationary period. The d epartment served Carrasco with a notice of rejection before the end of the probationary period and s tated six reasons for the rejection. Carrasco challenged his rejection before defendant and respondent the State Personnel Board ( the b oard ) and, when the b oard upheld his rejection, he petitioned the superior court for a writ of administrative mandamus. At the conclusion of the a dministrative and superior court proceedings, only two of the reasons given for Carrasco’s rejection were found to have been supported by substantial evidence. However, both the b oard and the superior court concluded
Government Code 1 section 19175

— the st atute that governs the b oard ’s review of the decision to reject a probation e r

— does not mandate reinstatement if less than all the reasons given for the rejection are upheld. In addition, the b oard and the superior court

1 All further statutory references are to the Government Code unless otherwise indicated.3 concluded the department had not act ed in bad faith when it rejected Carrasco. Therefore, the superior court denied Carrasco’s petition. In this appeal from the judgment denying Carrasco’s petition, we hold : (1) section 19175, subdivision (d), does not require the b oard to reinstate a rejected probationer if at least one of the reasons given for the rejection is supported by substantial evidence; (2) the administrative record supports the b oard ’s findings that substantial evidence supported the two remaining reasons for Carrasco’s rejection; and (3) the record supports the b oard ’s findings that the department did not act in bad faith when it rejected Carrasco. We affirm the judgment.
I.
FACTS AND PROCEDURAL BACKGROUND
A. Rejection of Carrasco During Probation

. After 20 years of service as a probation officer, in April 2008 , Carrasco was hired by the d epartment as a p arole a gent

. O n July 31, 2013 , he was promoted to s pecial a gent within the Office of Correctional Safety (OCS) Special Services Unit. Carrasco was subject to a 12

- month probationary period for his new position, and he reported for duty

on August 1, 2013.
On June 23, 201 4 , the d epartment served Carrasco with a “N otice of R ejection
D uring P robation P eriod. ” The notice listed six reasons for Carrasco’s rejection: (1) he failed to exit his vehicle to assist in a foot pursuit of an escapee in4 September 2013 ; (2) he failed to follow instructions during a tactical training exercise conducted in January 2014 , and he was discourteous and refused to follow instructions from his supervisor ; (3) he failed to follow instructions from his supervisor in October 2013 to work on a “cold case” and neglected to “ develop any investigative work

on t he case” from the ti m e of the instructions to February 2014 ; (4) he failed to timely submit a report within six business days of a March 2014 arrest , falsified the report to indicate it had been timely submitted , and fail ed to include necessary information ; (5) in April 2014 , he failed to respond to “ ‘ call

- outs ’ ” from his supervisor and a fellow agent for assistance in capturing an escapee while he was on “ ‘ call

- out ’ ” rotation, and he had not previously submitted a request to be excused from “ ‘ call

- out ’ ” duty; and (6) he failed to follow a “ verbal agreed

- upon protocol ” while attending a n April 2014 meeting at the Orange Police Department.
B. Administrative Appeal and Evidentiary Hearing

. Carrasco appealed the rejection, and an administrative law judge (ALJ) with the b oard conducted an investigatory heari ng on January 22, 2015.5 1. Reason 2: Simunition ® training. 2 With respect to reason 2 for Carrasco’s rejection, the notice of rejection stated that, during S imunition ® 3 training conducted on January 25, 2014, he “failed to follow instructions” from his instructors, s pecial a gents Mory and Marks , and he was “discourteous when [he] refused to accept corrective suggestions” about his performance during a room

- entry exercise. The notice quoted a document entitled “ Special Agent Essential Functions, ” which provides, inter alia, a s pecial a gent “[ m ] ust be able to accept constructive criticism, feedback and use supervisory direction positively .” Finally, the notice stated Carrasco “made excuses throughout th is training session for not following training procedures that [his] instructors exposed [him] to,” he was “a rgumentative with [his] instructors when they provided constructive criticism and feedback,” and he “failed to accept responsibility for [his] training mistakes.” All this “demonstrate[ed] [ his ] inability to utilize supervisory direction positively by wor king toward improvement to align [himself] with [the d epartment’s] mission and OCS’s safety procedures.”

2 As explained further, post , by the time the su perior court entered its judgment and Carrasco appealed, only two of the reasons given for the rejection (reasons 2 & 4) were found to have been supported by substantial evidence. Those are the only reasons for the rejection that are at issue in this appe al. Therefore, we will only set forth the evidence presented during the evidentiary hearing that pertains to those reasons.

3 Simunition® (simulated ammunition) is the brand name for nonlethal training ammunition manufactured by the defense contractor General Dynamics. ( Simpson v. General Dynamics Ordinance and Tactical Systems

- Simunition Operations , Inc. (N.D. Ind. 2019) 429 F.Supp.3d 566 , 571

- 572 ; see Moore v. Guthrie (10th Cir. 2006) 438 F.3d 1036, 1038.)6 Parole a gent Lee w as present during the training exercise . He testified that, neither during the room

- entry exercise nor during the “briefing after ea ch scenario , ” did he observe Carrasco to be belligerent or hear him say anything he would characterize as discourteous. When asked if he heard Carrasco “talk over” the instructors during the debriefings, Lee testified, “No. I don’t know. No.” Lee expla ined he “was there” during the training but he was not a trainee

— he was one of the “role players” to “get shot [in] the scenario,” and was not one of the agents “going through the houses.” When asked again whether he heard Carrasco say anything discourteous, Lee answered, “I hardly left that house. I was inside the house . . . preparing for each scenario.” Finally, Lee testified he was not present “all the times” that Marks and Mory spoke to Carrasco. Carrasco testified he had no conversation s with Marks or Mory during the training , and he did not say anything that could be characterized as discourteous. Carrasco described the room

- entry exercise , during which he kicked open a door and, wh en it did not close all the way, he instinctively pointed his weapon at the door because there might be someone behind it with a weapon

. He told his team member, “check the door.” Carrasco testified that, after the exercise, he was told he “should have r ode [ sic ] the door and come around the door and confront the subject ” himself. This concerned and confused Carrasco . “I asked if I come around and face the subject

. I’m in the room with him by myself with him and my gun’s pointing toward my team members . That’s the only statement I made.” Carrasco denied that he said he “knew better or anything of that nature,” or that he was “trying to be a know

- it

- all.”7 Marks testified the training exercise involved tactical officers entering buildings and rooms unde r various dangerous scenarios. During the training , he became concerned that Carrasco had difficulty grasping some of the concepts and procedures the course was designed to teach. Marks tried to explain to Carrasco “how things needed to be done” and “how we normally do them and what’s safe and what’s not safe , ” by “making corrections and whatnot.” Carrasco “appeared to be resistant” to correction. Marks and Mory believed Carrasco had missed “a threat to the team that he didn’t address properly” but , “when it was explained to him, he said that he didn’t believe he had done that. So from there on it was somewhat of a no, I didn’t.” Because Carrasco was a new s pec ial

a gent, Marks thought that if Carrasco “did something wrong, [he would ] want to make the correction. You can’t correct something if someone doesn’t believe he did something incorrect.” More specifically, Marks testified that, during the “room

- entry” ex ercise, he observed Carrasco encounter a person behind a door but, instead of “fully addressing it whe re he wasn’t sure if someone was behind it,” he “yelled out for another agent to address the threat” and “he passed the door.” According to Marks, this c oncerned him because “[w]e always address threats as we encounter them. So if I’m the first person at the front door and there’s a threat there, I have to address it. If I don’t, the person behind me may get shot or hurt . . . .” Marks and Mory addresse d their concerns about Carrasco’s performance during a group “debriefing of the scenario.” The y told Carrasco that “he could have rode [ sic ] the door”

— pushed his body against the door

— “to make8 sure that person couldn’t come outside.” But, he “refused to listen” and “talk[ed] over” them while trying to explain why he believed he had acted correctly during the exercise. Rather than stop the class to further address Carrasco, Marks continued the class while Mory “pulled [Carrasco] aside and spoke to him one

- on - one.” Marks overhead some of the conversation, and “it didn’t seem like [Carrasco] was ready to move on.” When asked if Carrasco had been discourteous, Marks testified he was “somewhat resistant to listening, is what I would say. Somewhat of I’ve bee n there, done that.” Carrasco was not rude , and he did not use foul language. He “was defending what he did” and “was saying he didn’t do what we said he did.” According to Marks, “we couldn’t get to the corrective discussion because he said it never ha ppened, and we observed it to happen.” In a March 12, 2014 memorandum to s enior s pecial a gent Santos , Marks wrote that , when Carrasco continued to talk over Marks and Mory and continued to insist on explaining why he believed he had done nothing wrong during the room

- entry exercise, Marks explained to Carrasco “that he would need to follow training directives without continually making excuses.” However , “[d]uring other sc enarios, SA Carrasco made additional excuses for not following the training procedures that instructors exposed him
to.” Based on his training and experience, Marks was of the opinion “Carrasco lack[ed] the desire or ability to learn [OCS] policies and pr ocedures” because he appeared to be “unwilling to listen to constructive criticism given by multiple OCS instructors.” Marks also opined “Carrasco was unable to accept any responsibility for training mistakes9 during the training,” and he was therefore “un able to work toward or display improvement.”
2. Reason 4: Late and incomplete arrest report. Reason 4 for the rejection stated that Carrasco failed to submit a report about a March 26, 2014 arrest to Santos, his supervisor, by April 4. “Per standard opera ting procedures, arrest reports are due within six (6) days of incident dates.” Carrasco “falsified” the report to indicate he had submitted it on March 27, when in fact he submitted it on April 9. The notice quoted a document e ntitled “ Special Agent Dut y Statement, ” which described the duty to prepare “lengthy, clear and concise reports” during and at the conclusion of investigations. In addition, the notice indicated Carrasco failed to include “the required elements” for an arrest report, and he failed to identify his role as lead investigator in the report and during searches conducted incident to the arrest, among other things. When Carrasco was promoted to the position of s pecial a gent in August 2013,

s enior s pecial a gent Moreno was assigned to train him

. Part of the training included “showing him what paperwork needed to be done for different arrests, different report writing, different threat assessments, [and] different escapes.” Carrasco did not, however, receive clas sroom training on report writing because the OCS academy had been cancelled. Santos testified he expects s pecial a gents under his command to submit reports within six da y s of an incident. He testified the six

- day rule is not found in the d epartment ’s o per ations m anual, but it “comes from minute meeting s” when a s pecial10 a gent is hired and “it’s an office expectation [] .” He described the rule as “a local expectation,” “just instructions.” Santos testified he had specifically instructed Carrasco to submit a report for the March 26, 2014 arrest within six days. “On the sixth day, he kept saying that he didn’t have follow

- up documents, and I sent it back for corrections. He actually sent the report. When I finally got the repo rt for

— for review and correction, I got it

— it wasn’t sent to my office tech for rewrite and correction until April 9th.” The report Carrasco submitted to Santos stated it was submitted on March 27, but
Santos testified he did not receive it after rewriting and correction until April 10 and, therefore, the report was not timely submitted pursuant to his instructions

. When asked why it is important for arrest reports to be timely submitted, Santos testified, “For filing with district attorneys, for office li abilities, for court purposes, and it’s also an office expectation and protocol to have them in within six days.” In addition, Santos testified that, because the arrest in question resulted in the seizure of cash, he would have expected the report to have certain attachments, specifically , an a sset f orfeiture form and

a c onsent to s earch form. The rewritten and corrected report Carrasco submitted on April 10 did not have those forms attached to it, although he submitted them later, “well after . . . the f inal draft. I had to keep requesting these forms to be submitted with the . . . report.” Santos also noted inconsistencies in the report, such as Carrasco indicat ing he was in two places at the same time. Finally, Santos testified the report omitted som e information. Carrasco testified that , in a meeting held in 2013 , he “was made aware of” the expectation that arrest reports had to be submitted within six days

. A nd h e acknowledged that he submitted the report in question late and that it was incomplete

.11 C. The Board ’s Decision Upholding Carrasco’s Rejection. In a proposed decision, the ALJ found substantial evidence supported reasons
1 through 5 for Carrasco’s rejection, but not reason 6, and it rejected Carrasco’s assertion

t hat the d epartment acted in bad faith by rejecting him during probation. The b oard adopted the ALJ’s findings of fact and determination of issues, and upheld Carrasco’s rejection. The b oard later denied Carrasco’s petition for rehearing.
D. Petition for Writ of Administrative Mandamus and Superior Court Proceedings

. Carrasco filed a petition for writ of administrative mandamus in the superior court

. I n his brief s , he argued substantial evidence did not support the five reasons for his rejection that were upheld by the b oard , and that the d epartment had acted in bad faith when it rejected him. In its tentative ruling , the superior court ruled substantial evidence di d not support reasons 1 and 3 for Carrasco’s rejection, but that substantial evidence supported reasons 2, 4 , and 5

. During the hearing, the court stated its intention was to adopt the tentative ruling but to only fi nd reasons 2 and 4 ( and not reason 5 ) w ere supported by substantial evidence , i.e., to find that Carrasco resisted corrective instruction (but not that he was discourteous) during Simunition® training (reason 2) , and that he failed to timely submit an arrest report (reason 4). The court direct ed the parties to file supplemental briefs addressing whether it would be appropriate to remand the case to the b oard for it to determine if the remaining two reasons were sufficient to sustain the rejection.12 In his supplemental brief, Carrasco argued his rejection could not stand based solely on the two remaining reasons , and the superior court should set it aside and remand the case to the board for a new evidentiary hearing on reasons 2 and 4

. At the conti nued hearing, Carrasco argued his rejection was like “a table with six legs around the perimeter as a foundation , and it needed to rely on that foundation to be sustained.” Because the b oard and the superior court in its tentative ruling in combination ha d “knocked out” four of those legs, the table would no longer stand. After hearing additional argument, the court ruled it would be appropriate to remand the case to the b oard for further consideration. In its order, the court : (1) granted the petition and set aside the b oard ’s adoption of the ALJ’s decision; (2) found that reasons 1 , 3 , and 5 for the rejection were not supported by substantial evidence, but that reasons 2 and 4 were supported by substantial evidence; ( 3 ) directed the b oard on remand to determine two issues: (a) whether “Carrasco should be restored to his position” pursuant to section 19175 because four of the six reasons for his rejection ha d been rejecte d, and (b) “whether the two surviving reasons for rejection were made in bad faith” within the meaning of section 19175; and ( 4 ) it retained jurisdiction to review the b oard ’s new decision.
E. Board Proceedings on Remand. Upon receiving the superior court’ s order, the b oard set aside its adoption of the
ALJ’s proposed order, remanded the appeal to the ALJ to conduct further proceedings and issue a new proposed decision , and directed the parties to file supplemental briefs

. In his supplemental brief, Carrasco once more argued “the foundational underpinnings for13 the rejection have now been rejected , ” and “the two remaining charges cannot support the rejection and it must be overturned.” In addition, he argued that , because four of the reasons had been found to lack evidentiary support, the ALJ should conclude the d epartment acted in bad faith when it rejected him. In its brief, the d epartment argued the two remaining reas ons were sufficient to uphold the rejection and that, notwithstanding the fact the b oard and the superior court had rejected four of the six reasons given for the rejection , it did not act in bad faith

. During the hearing on remand to the ALJ , Carrasco arg ued that, considering four of the six reasons for his rejection had been found to be lacking in evidentiary support , the remaining two reasons were “even more suspect.” Counsel for the d epartment argued the fact the superior court had found three of the reasons for rejection were no t supported by substantial evidence was not “indicia of bad faith. This is not a numbers game.” With respect to whether the two remaining reasons were sufficient, counsel again argued “it isn’t a numbers game.” The t wo r emaining reasons for the rejection showed Carrasco was “a bad fit” for his position “an d he cannot perform at this job.”
In a p r oposed decision, the ALJ concluded Carrasco’s rejection during probation was supported by substantial evidence , and the rejectio n was not motivated by fraud o r bad faith. In its factual findings regarding reason 2 for the rejection , the ALJ found that during the training exercise, an instructor observed Carrasco enter a small room, discover a person behind a door, then walk out of the room and ask a team member to confirm what he had seen. The other team member entered the room , discovered the person behind the door, “and immediately address[ed] the threat

. ” Because Carrasco “did not14 immediately address the threat when he discove red it,” the instructor believed he had made a “tactical error” that needed correction. But, when the instructor tried to discuss the issue with Carrasco, he denied having made a tactical error “and insisted he did nothing wrong.” When the instructor reminded Carrasco that he needed to follow training directives “without making excuses,” he “continued to deny wrongdoing, and was not receptive to the training.” And in its factual findings regarding reason 4 for the rejection , the ALJ found Santos had directed s pecial a gents under his supervision to complete and submit arrest reports within six business days of the arrest, and Carrasco became aware of that directive in 2013

. The di rective from Santos “was not in writing” and was not “set forth in [ the d epartment ’s] policy manuals.” Carrasco was the lead investigator for the arrest on March 26, 2014, yet he did not submit his report for rewriting and correction until April 9, four d ays late. Moreover, the ALJ concluded Carrasco’s report contained many significant omissions. The ALJ stated the first issue to be determined on remand from the superior court was whether the two remaining reasons for Carrasco’s rejection, “standing alone , support [his] rejection during probation.” The ALJ concluded, “they do.” With respect to

reason 2, t he ALJ found Carrasco’s “resistance to training on matter s that may affect his safety, and the safety of his fellow peace officers, is not a trivial eve nt and legitimately calls into question [his] suitability to work as a [ s pecial a gent].” With respect to reason 4, the ALJ noted the timely completion and submission of accurate arrest reports “is an important component of a [ s pecial a gent’s] job duties.” Failure to timely submit a15 complete and accurate arrest report might jeopardize the prosecution of criminal suspects, and the d epartment “has a legitimate concern that [Carrasco] is not suited for a [ s pecial

a gent] position when [he] demonstrated his inability to timely submit a complete crime report that contains all relevant and important information.”
T he AL J also concluded Carrasco had not demonstrated that the d epartme n t had acted out of bad faith when it rejected him during probation. The d epartment had on three occasions notified Carrasco that his performance was poor and in need of improvement and, in the third notice, told him he was at risk of being rejected. Carrasco had been given additional training and the opportunity to improve. T herefore, the ALJ concluded the record did not show the d epartment acted with the intent to deprive Carrasco of any benefit or with animus. With respect to Carrasco’s assertion that the lack of substantial evidence for four of the six reasons for the rejec tion was proof of bad faith, the ALJ concluded “bad faith cannot be determined by some quant ita tive standard that only measures the number of reasons ultimately found supported by substantial evidence versus the number of reasons that were not.” The ALJ stated section 19175, subdivision (d), “contemplates that even a single reason supported by substantial evidence is sufficient to warrant

. . . rejection during probation.” The fact the b oard and the superior court had reached different conclusions ab out three of the reasons showed “reasonable minds may differ” about what constitutes substantial evidence to support a rejection. And, t o the extent the number of reasons found to be lacking in evidentiary support is a “ factor to consider” in the bad fait h analysis , the ALJ concluded , “it must not be considered in isolation, but in the16 context of an employee’s entire probationary period.” The record demonstrated Carrasco had been provided with extensive training during the probation period and had been

no tified of performance deficiencies with enough time to remedy them. Because he had been provided with “every opportunity to demonstrate his ability” to perform his job over
an 11

- month period, the number of reasons found to lack evidentiary support “does not establish [ the d epartment ] acted in bad faith by illegitimately thwarting [Carrasco’s] ability to pass probation.” In sum, the ALJ found Carrasco had not met his burden of proof. The b oard adopted the ALJ’s proposed order and once more upheld Carrasco ’s rejection

. F

. Further Superior Court Proceedings on Carrasco’s Petition. After submitting the b oard ’s new decision to the superior court, Carrasco filed a supplemental brief in which he alleged the b oard had failed to address the first question contained in the superior court’s remand order, to wit, whether the rejection could stand based solely on two of the six reasons given

. He stated th e superior court’s order showed it had “correctly reasoned . . . that the notice of rejection was an integrated whole resting on the sum of each of the six reasons for the rejection and recognized that, with the rejection of four of the six reasons, the fa bric of the rejection had ripped.” However, according to Carrasco, the b oard ignored this supposedly clear message from t he court and instead “focused

. . . on the idea that it could view the two remaining reasons independently from the four rejected reas ons to determine whether rejection remained appropriate.” In addition, Carrasco accused the b oard of looking beyond the reasons17 stated in the notice of rejection and relying on other reasons to bolster its conclusion that substantial evidence supported th e rejection.
Carrasco once more argued the d epartment had “relied on six combined, interlocking reasons ” for his rejection in the original notice, and the six reasons “connected to form the entirety of the rationale for the rejection and must be read together .” And, because the b oard supposedly ignored the superior court’s mandate, he argued the decision on remand should be subject to “heightened scrutiny” rather than the normal substantial evidence review. Finally , he argued the record contained sub stantial evidence that the d epartment acted in bad faith when it rejected him. The d epartment filed a brief and argued the b oard did, in fact, comply with the superior court’s direction on remand. “ [The b oard] clearly found that the remaining two

reasons for [the] rejection on probation were sufficient to constitute, on their own, substantial evidence to support [the] rejection on probation.” It also argued the b oard correctly found that the remaining two reasons for the rejection were supported by substa ntial evidence , and that substantial evidence did not support Carrasco’s claim that his rejection was the result of bad faith.
Carrasco responded to the d epartment ’s brief a nd argued that, not only did the b oard ignore the superior court’s mandate in its remand order, but its conduct was potentially sanctionable. At the hearing on remand, Carrasco once more argued the six reasons given for his rejection had to be read as a whole

. A nd, a s he did in his first brief filed after the case was returned to t he superior court, Carrasco addressed a video of the tactical training18 exercise. T he superior court indicated it had not been provided with the video , so it directed either party to produce the video as soon as possible , and it continued the hearing

. Ca rrasco lodged the training video with the court , and he filed a supplemental brief addressing in greater detail how the video disproved the b oard ’s findings of fact regarding the training exercise. The d epartment filed its own supplemental brief and once m ore argued the b oard did not ignore the superior court’s mandate and, therefore, the decision on remand was not subject to heightened scrutiny. In addition, the d epartment argued that, contrary to the suggestion in Carrasco’s briefs, the video of the training exercise did not undermine the b oard ’s findings of facts. As the d epartment noted, the notice of rejection did not rely on Carrasco’s failure to properly “ c lear a n un secured door ” as the reason for rejection. Instead, the notice accused Carrasco of refusing to accept “ ‘ corrective suggestions ’ ” from his instructors , making excuses, and of being discourteous. The d epartment argued the video was irrelevant because it fo cused on the “actions of the trainees” during the simulated building entry and “not any correction by instructors” after the exercise. According to the d epartment , the administrative record, including the live testimony before the ALJ in the original hear ing, constituted substantial evidence to sustain reason 2 for the rejection. Finally, the d epartment argued there was no substantial evidence in the record that it acted in bad faith when it rejected Carrasco during probation.19 Carrasco responded to the d epartment ’s supplemental brief . He argued the video was relevant , it demonstrated that he acted appropriately during the training exercise , and he did not rebuff corrective suggestions from instructors or act discourteously. During the continued hearing, the superior court indicated it was inclined to adopt its tentative ruling issued before the prior hearing and deny the petition. The court indicated it had viewed the training video , which it noted was intere sting but “wasn’t really exciting

. ” The court stated the video had not changed its mind. “I don’t think that what actually took place during the . . . tra ining, what Mr. Carrasco was or was not doing, is the issue. But the issue is what took place after that and about that.” After hearing additional arguments, the court took the matter under submission.
G. Order and Judgment Denying Carrasco’s Petition. The superior court subsequently entered an order and written decision denying the petition. Addressi ng Carrasco’s assertion “that [the b oard] failed to address substantively whether the Court could sustain a rejection

. . . when two

- thirds of the reasons presented for the rejection lacked merit,” the court noted section 19175, subdivision (d) , “does not prescribe a specific number of reasons required for rejection of a probationary employee.” “Indeed,” the court stated, the statute “implies a probationary employee may be rejected for a single reason.” The court ruled Carrasco had not met his burden of demonstrating the remaining two reasons for his rejection were not supported by substantial evidence

. “Based up on the seriousness of [Carrasco’s] resistance to t he

. . . training, and the importance of submitting comple te and timely arrest reports,” the court20 ruled , “the decision that [Carrasco] would not be returned to probation based upon the two remaining reasons, is appropriate.” The court also ruled Carrasco had not met his burden of demonstrating the d epartment act ed in bad faith. Specifically addressing Carrasco’s claim that the d epartment essentially cooked up reasons for the rejection by relying on incidents that took place after the decision to reject him had already been made, the court stated : “Other than hi s speculation, [he] provides no legal authority prohibiting or precluding [his] subsequent performance deficiencies to be included as a reason for his rejection. [The d epartment] was not obligated to disregard any and all subsequent performance deficienci es after it made its tentative decision to reject [Carrasco’s] probation.” The reafter, the superior court entered a formal judgment denying the petition and Carrasco timely appealed.
II.
DISCUSSION
A. General Principles

. “Article VII of the California Constitution provides that, generally, the civil service includes ‘every officer and employee of the State’ ( id ., art. VII, § 1, subd. (a)) and that permanent appointment and promotion in the civil service ‘shall be made under a general system b ased on merit ascertained by competitive examination’ ( id ., art. VII, § 1, subd. (b)). This constitutional mandate, known as the ‘merit principle,’ was adopted by California voters in 1934 in an effort to eliminate the ‘spoils system’ of political patrona ge from state employment and to ensure that ‘appointments and promotions in21 state service be made solely on the basis of merit.’ [Citations.] Another constitutional provision, also adopted in 1934, calls for a nonpartisan personnel board (the [board]) to enforce the civil service statutes (Cal. Const., art. VII, §§ 2, 3, subd. (a)) and for an executive officer to administer the statutes under the [board’s] rules ( id ., §§ 2, subd. (c), 3, subd. (b)).” ( California State Personnel Bd. v. California State Em ployees Assn., Local 1000 , SEIU , AFL

- CIO (2005) 36 Cal.4th 758, 764

- 765, fn. omitted.) Under the State Civil Service Act (§ 18570 et seq.), a probationary civil service employee (a probationer) enjoys less protection than a regular incumbent to provide the appointing power the ability to test his or her fitness. “The object and purpose of a probationary period is to supplement the work of the civil service examiners in passing on the qualifications and eligibility of the probationer. During such period th e appointive power is given the opportunity to observe the conduct and capacity of the probationer, and if, in the opinion of that power, the probationer is not fitted to discharge the duties of the position, then he [or she] may be discharged by the summa ry method provided for in the Civil Service Act before he acquires permanent civil service status.” ( Wiles v. State Personnel Bd

. (1942) 19 Cal.2d 344, 347 ; see § 19172 [“During the probationary period the appointing power shall evaluate the work and effi ciency of a probationer . . . .”] .) In evaluating whether the probationer exhibits “ the proper qualifications to become a permanent civil service employee ,” the appointing power “ is in the best position to form a conclusion.” (Boutwell v. State Bd. of E qualization (1949)
94 Cal.App.2d 945, 949.) Consequently, the appointing power must be permitted to

“ exercise discretion and personal judgment in determining whether a probationary22 employee shall acquire permanent status.” (Broyles v. State Personnel B d. (1941)
42 Cal.App.2d 303, 307.) Although probation ers enjoy less protection tha n permanent civil serv ant s , they

are “entitled to have the statutory procedure for dismissal strictly followed.” ( Wiles v. State Personnel Bd. , supra , 19 Cal.2d at p. 351.) “ A ny probationer may be rejected by the appointing power during the probationary period for reasons rel ating to the probationer’s qualifications, the good of the service, or failure to demonstrate merit, efficiency, fitness, and moral responsibility,” but not for unlawful reasons. (§ 19173, subd. (a).) The appointing authority must serve the probationer w ith written notice that includes “the reasons for the rejection.” (§ 19173, subd. (b) ; see Bell v. City of Torrance (1990) 226 Cal.App.3d 189, 196

- 197 [“[T]he notice of rejection served within the probationary period must state specific reasons for the re jection

. ”]

. )

“ I t is not sufficient for the appointing power simply to give its conclusions, unsupported by facts.” ( Dona v. State Personnel Bd. (1951) 103 Cal.App.2d 49, 50.) The rejection notice must contain “ sufficient factual specificity ” to provide the probationer with the opportunity to mount a focused challenge to those reasons , and to

ensure the b oard can assess whether substantial evidence support s th em. ( In re Wendylin Donald (2002) SPB Dec. No. 02

- 10, at p. 13 [2002 WL 32076962, at p. *7] ; see § 19582.5 [The board “may designate certain of its decisions as precedents.”] .)

“ ‘ [J]ustification for the rejection of a probationary employee, lies not in the appointing power’s conclusion

. . . that the action is for “ the good of the service and failure to demonstrate merit and fitness ” or that “ the conduct and actions ” were23 unbecoming to such an employee. Rather the justification therefor lies in the factual reasons which support or justify such conclusion by said appointing power that the reje ction of the employee would be for the good of the service. ’ ” ( Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, 109 2

- 109 3 , quoting Bryant v. State Personnel B oard (1950) 96 Cal.App.2d 423, 426 .) The probationer may request in writing that the b oard investigate his or her rejection. ( Gov. Code, § 19175.) After an investigation, the b oard may, with or without conducting a hearing, affirm the rejection, modify the action of the appointing power, or restore the probationer’s name to the employment list for certification to any position within his or her class. ( Id ., § 19175, subds. (a)

- (c).) The b oard may restore the probationer to his or her position only if it finds , after a hearing , “that there is no substantial evidence to support the reason or reasons for rejection, or that the rejection was made in fraud or bad faith.” ( Id ., § 19175, subd. (d) ; see id ., § 19180 .) At the hearing, the appointing authority does not have the burden of proving it did not act with bad faith or that its reasons for the rejection are true. Instead, the probationer bears the burden of proof and must overcom e a rebuttable presumption that the rejection was free from fraud and bad faith and that the reasons given for the rejection are true. ( I

d ., § 19175, subd. (d); see Evid. Code, §§ 500, 605

- 606.)
J udicial review of a final administrative decision by the b oard “shall extend to the questions whether the res pondent [ b oard ] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent [ b oard ] has not proceeded24 in the manner r equired by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
B. Standards of Review. On appeal from a jud gment of the superior court denying a petition for writ of administrative mandamus, we “independently determine[] whether substantial evidence supports the [ Board ’ s ] findings , not the trial court’s conclusions.” ( Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.) “‘ “‘ The State Personnel Board is an agency with adjudicatory powers created by the California Constitution.’ [Citation.] As such [ the b oard ] acts much as a trial court would in an ordinary judicial proceeding. Thus, [ the b oard ] m akes factual findings and exercises discretion on matters within its jurisdiction. On review the decisions of [ the b oard ] are entitled to judicial deference.”’” ( Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13

- 14 ; see Cal. Const., art. VII, §§ 2

- 3 .) “We do not substitute our own judgment if the b oard’s decision ‘“ ‘ is one which could have been made by reasonable people . . . . ’ ”’” ( Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701.) “‘Substantial evidence’ is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [Citation.] Such evidence must be reasonable, credible, and of solid value.” ( California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584

- 585.) In applying the s ubstantial evidence test, “‘[w]e do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of [ the b oard’s ] decision. Its findings come before us ‘with a strong presumption as to their25 correctness and regularity.’” ( Palmieri v. State Personnel Bd. (2018) 28 Cal.App.5th 845, 851.) “We review questions of law under the independent standard of review. [Citation.] ‘We respect but do not necessarily defer to [the b oard’s] interpretations of the governing statutes. [Citation.] The judiciary takes ultimate responsibility for the construction of statutes, although according great weight and respect to the administrative construction such as is appropriate under the circumstances. ’” ( Fisher v. State Personnel Bd. , supra , 25 Cal.App.5th at p. 14.)
C

. The Board Properly Concluded a Rejected Probationer Cannot Be Restored to His or Her Position If It Conclude s One or More of t he Reasons Given f or the Rejection Is Supported b y Substantial Evidence. Carrasco contends the b oard erred as a matter of law when it ruled his rejection should be upheld because two out of the six reasons given for his rejection were supported by substantial evidence. In th is context, he makes three arguments: (1) the six reasons given for his rejection were an integrated whole , and the rejection cannot stand

once four of the reasons were knocked out; (2) the b oard improperly ignored the superior court’s remand order and reframed the question posed to it in such a manner that its order should be subject to heightened scrutiny; and (3) the plain language of section 19175, subdivision (d), dictated that the b oard restore him to his position once two

- thirds of the reasons given for his rejection were found to not be supported by substantial evidence. We find neither argument to be persuasive.26 1. Carrasco has not demonstrated the six reasons stated fo r hi s rejection must be considered as an integrated whole. As he did below, Carrasco argues the combined orders of the b oard and the superior court “striking of four of the six allegations” set forth in the notice of rejection “dooms the rejection as a wh o le and requires the rejection to fail as lacking substantial evidence under Government Code section 19175.” H e claims the six reasons stated in the rejection notice were “an integrated whole.” Put a different way, he contends the d epartment “relied on six combined, interlocking allegations for rejecting [him].” But, neither below nor in his brief s on appeal does Carrasco explain how or why the six reasons were necessarily interdependent and could not stand alone. Mirroring section 19173, subdivision ( a), the notice s erved on Carrasco stated he was being rejected “for reasons relat ing to [his] qualifications, the good of the service, and failure to demonstrate merit, efficiency, fitness and moral responsibility.” The six

reasons provide d in the notice each concerned different types of alleged actions and/ or omissions that disqualified Carrasco from his position as a s pecial a gent , and they took place on different dates throughout his probationary period. Nothing on the face of the notice and nothing in the administrative record indicates the d epartment believed the rejection was justified only if the six reasons were considered together. Merely repeating the claim that the six reasons are interlocked and cannot survive independently does not make it so.27 2. The b oard did not ignore or improperly reframe one of the questions posed to it in the superior court’s remand order.
Next , Carrasco once more argues the b oard ignored the superior court’s remand order and failed to properly consider the first question posed to it. He contends the b oard “wrongly framed the question as whether the two remaining allegations, standing alone, constituted grounds for rejecting Carrasco.” And, by ignoring the court’s directive and “transf orm[ing] the original rationale set forth in the rejection notice,” Carrasco argues the b oard wrongly and impermissibly altered the allegations during the appeal process. In its remand order, the superior court directed the b oard to decide, inter alia, whe ther , “with four of the six reasons supporting Carrasco’s probation lacking substantial evidence, Carrasco should be restored to his position pursuant to Government Code section 19175 . . . .” T he ALJ’s proposed order , that the b oard adopted , reproduced t hat language almost verbatim in the statement of issues to be decided

. I n the analysis section of the decision, however, the b oard phrased the issue differently, stating : “The first question posed by the superior court’s March 3, 2017 Order is whether these two proven allegations [reasons 2 and 4], standing alone, support [Carrasco’s] rejection during probation; they do.” True, the b oard reframed or rephrased the issu e. Whereas the superior court directed the b oard to address whether Carrasco s hould be restored to his position because four of the reasons for the rejection had been found lacking, the b oard addressed whether the rejection could stand based solely on the remaining two reasons. But , the two ways of f ra ming or phrasing the issue wer e consistent and complementary. The b oard merely28 teased out of the court’s language what was implicit : for the b oard to decide it could not
restore Carrasco to his position despite four reasons for the rejection having be en knocked out, it would have had to conclude the remaining two reasons were themselves legally sufficient to support the rejection. I n that sense , the two ways of framing the issue were merely opposite sides of the same coin.
3. Section 19175 contemplates that a single su bstantiated reason for rejection of a probationer pre cludes reinstatement by the b oard

. Finally , we are un persuaded by Carrasco’s assertion that section 19175, subdivision (d), mandates that rejection of a probationary employee must be considered an all

- or - nothing proposition and , if some or even a majority of the reasons that were given for the rejection are later found to not be supported by substantial evidence , the rejection as a who le ca nnot stand as a matter of law

. He argues th e issue presented here is a question of first impression and that interpretation of section 19175 is a legal question we must review de novo. The b oard agrees with Carrasco that questions of law are reviewed de novo but argues the b oard ’s interpretation of section 19175 is entitled to great weight and should be reversed only upon a showing a clear error. For its part, the d epartment argues resolution of the issue turns on the facts of the case, not on interpreta tion of a statute that is clear on its face and , therefore , the appropriate standard of review is the deferential substantial evidence test

. We agree with Carrasco that whether section 19175 precludes reinstatement of a rejected probationer when less than all the reasons given for the rejection are found to be supported by substantial evidence , is a question of statutory interpretation and is distinct29 from the question of whether the individual reasons themselves are supported by substantial evidence. The d epartment ’s assertion that section 19175 is clear on its face and requires no interpretation begs the question : w e cannot determine whether the statute is clear on its face and requires no further interpretation without engaging in the ac t of statutory interpretation the d epartment says we should avoid. (See Robinson v. Shell Oil
Co. (1997) 519 U.S. 337, 340 [determining whether the meaning of a statute is plain and unambiguous on its face is the “first step” of statutory interpretation]; Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332 [same].) And, to repeat, although the b oard ’s interpretation of the civil service statutes is entitled to respect and great weight, ultimately the question of statutory interpretation is the courts ’ responsi bility

. ( Fisher v. State Personnel Bd. , supra , 25 Cal.App.5th at p. 14; Department of Corrections & Rehabilitation v. State Personnel Bd. (2016) 247 Cal.App.4th 700, 708.) Interpretation of a statute is a question of law we review de novo. ( John v. Superior Court (2016) 63 Cal.4th 91, 95.) “‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citation.] “We begin by examining the statutory language, givi ng the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citation.] If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we ‘“select the construction that comports most closely with the apparent intent of the Legislature, with a v iew to promoting rather30 than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.”’”’” ( City of Desert Hot Springs v. Valenti (2019)
43 Cal.App.5th 788, 793 .)
As o riginally adopted , section 1917 5 provided for restoration of a probation er if, after an “investigation of the reasons for rejection , ” the b oard concluded the hiring authority did not comply with section 19173. ( F ormer § 19175, subd. (b), added by
Stats. 1945, ch. 123, § 1, p. 559; see Boutwell v. State Bd. of Equalization , supra , 94 Cal.App.2d at p. 947.) But, t he statute was amended four years later to provide for reinstatement only if the b oard concluded the “reason or reasons” for the rejection were not suppor ted by substantial evidence or that the appointing authority acted fraudulently or with bad faith . ( F ormer § 19175, subd. (c), as amend ed by Stats. 1949, ch. 575, § 2,
p. 1072, italics added; see Boutwell , at p. 950.) The addition of “reason” singular to “reasons” plural for the rejection (§ 19175, subd. (d) ; Stats. 2011, ch. 60, § 2) is strong evidence the L egislature intended that a singl e substantiated reason will legally suffice to uphold the rejection (absent fraud o r bad faith) , regardless of how many reasons were given in the notice or how many a re found to not be supported by substantial evidence

. Nothing in the plain language of the statute supports Carrasco’s contrary assertion. The courts have phrased the requirement s of s ection 19175 in a manner which supports our conclusion. In Anderson v. State Personnel Bd. (1980) 103 Cal.App.3d 242, the court noted : “A rejected probationary employee, after a hearing before the board, may be reinstated only on a showing that there was no substantial evidence to support the rejection ; the rejection is presumed to be free from fraud and bad faith.” ( Id . at p. 249,31 italics added, citing former § 19175, subd. (c) ; Stats 1959, ch

. 1999, § 1 , p. 4642 .) And,

c iting Anderson , the appellate c ourt in Lee v. Board of Civil Service Comrs. (199 0 )
221 Cal.App.3d 103 used the same phraseology: “A rejected probationary employee
may be reinstated only on a showing that there was no substantial evidence to support the rejection

. ” ( Id . at p. 108, italics added, citing Anderson , at p. 249

. ) Tellingly , th os e
courts interpreted section 19175 to focus on the ultimate question of whether t he rejection is supported by substantial evidence , and not on whether e ach reason or even a majority of reason s for the rejection ( when more than one was given ) is supported by
substantial evidence. 4 In its brief, the b oard says it has similarly interpreted section 19175 in a precedential decision to prevent reinstatement of a probation er if at least one of the stated reasons for the rejection is supported by substantial evidence and the supporting facts demonstrate a suffic iently serious reason to disqualify the probationer . (See In re D avid

4 When the intent of the L egislature is clear on the face of a statute, we usually eschew reviewing legislative history. ( People ex rel. Alzayat v. Hebb (2017) 18 Cal.App.5th 801, 817 .) Although we find no ambiguity in section 19175 on the precise question presented here, we do note that a document in the Governor’s chaptered bill file lends some support to the reading given to section 19175 by the courts in Anderson v. State Personne l Bd. , supra , 103 Cal.App.3d 242 and Lee v. Board of Civil Service Comrs. , supra , 221 Cal.App.3d 103. In a report to Governor Earl Warren, the Director of Finance explained, inter alia, that the bill to amend section 19175 would “provide that a rejected p robationer shall be restored to his position only if the State Personnel Board determines after hearing that there is no substantial evidence to support the rejection . . . .” (Director of Finance James S. Dean, Rep. on Assembly Bill No. 2045 (1949

- 1950 R eg. Sess.) prepared for Governor Warren (June 3, 1949) p. 1, Governor’s chaptered bill files, ch. 575, italics added.) On our own motion, we have taken judicial notice of this document , and it is available in this court’s case file. (Evid. Code, §§ 452, 4 59; PGA West Residential Assn. , Inc. v. Hulven Internat. , Inc. (2017) 14 Cal.App.5th 156, 174, fn. 11.)32 Rodriguez (1994) SPB Dec. No. 94

- 29, pp. 15, 17 [1994 WL 16006537, at p. *7] [concluding one of two reasons given for the probationer’s rejection

— falsification of timesheets

— was “alone sufficient” to support his rejection]. ) C arrasco responds the decision in Rodriguez is not binding on us

. For the reasons already stated, ante , we agree. He also argues the b oard did not, in fact, interpret section 19175 in Rodriguez , the b oard is now taking language from Rodriguez out of its proper context and, in any event, that language is unnecessary dictum. We need not resolve those questions here . But, to the extent the precedential decision in Rodriguez does reflect the b oard ’s reasoned interpretation of section 19175 as preventing reinstatement of a probationer if at least one of the reasons given for the rejection is supported by substantial evidence, we find it to be persuasive authority because it is consistent with the plain languag e of section 19175 and the interpretation given to it by other courts.
Carrasco argues the interpretation of section 19175, subdivision (d), we adopt here ignores “the disjunctive meaning of ‘reason or reasons.’” True, the ordinary and popular meaning giv en to the word “or” in a statute is disjunctive, signify ing it marks out “‘an alternative such as “either this or that.”’” ( In re Jesusa V. (2004) 32 Cal.4th 588, 622

- 623.) But , that rule of construction applies when a statute uses the word “or” to diffe rentiate separate, distinct categories. ( See White v
. County of Sacramento (1982)
31 Cal.3d 676, 680; Anderson v. Davidson (2019) 32 Cal.App.5th 136, 146 .) We are not persuaded by Carrasco’s assertion that section 19175 , subdivision (d) , “sets up two categories of re jections

— those based on a single reason and those based on multiple reasons .” A “ reason ” for rejecting a probationer remains a “ reason ” regardless33 of how many are set forth in the notice. (§ 19173; see John R. v. Oakland Uni fied School
Dist. (1989) 48 Cal.3d 438, 459 (conc. & dis. opn. of Eagleson, J .) [“‘Rose is a rose is a rose is a rose.’ (Gertrude Stein, Sacred Emily (1913) .)”].) It is not transformed into something else, such that it fall s into a different category , me rely because more than one has been provided. (Cf. § 13 [“The singular number includes the plural, and the plural the singular.”].) Finally, we agree with the b oard that Carrasco’s suggested interpretation of Government Code section 19175, subdivision (d), would result in absurd consequences. As noted, ante , t he California Constitution provides that “permanent appointment and promotion” to the civil service shall be “based on merit.” (Cal. Const., art VII, § 1, subd. (b); se e California State Personnel Bd. v. California State Employees Assn. , Local
1000 , SEIU , AFL

- CIO , supra , 36 Cal.4th at p. 764; see also Gov. Code, §§ 18502, 19800.) If the b oard finds that even one of the reasons given for rejecting a probation er is
suppor ted by substantial evidence, by definition it has found the appointing authority was justified in concluding the probationer lacked merit or wa s otherwise unsuited to the position and should not be permanently appointed. ( Gov. Code, §§ 19173, subd. (a),
1 9175, subd. (d).) Under Carrasco’s interpretation, however, the b oard would nonetheless be required to reinstate the probationer notwithstanding his or her proven unfitness or unsuitability. Because that interpretation would potentially lead to absurd

co nsequences, we must reject it. ( City of Desert Hot Springs v. Valenti , supra , 43 Cal.App.5th at p. 793 .)34 For all these reasons, we hold the b oard properly concluded Carrasco was not entitled to reinstatement as a matter of law notwithstanding that four of the six reasons given for his rejection had been found to not be supported by substantial evidence.
D

. The Administrative Record Supports t he B oa rd ’s Findings T hat Reasons 2

a nd 4 f or Carrasco’s Rejection Are Supported b y Substantial Evidence

. Carrasco acknowledges he faces the “‘daunting tas k ’” of demonstrating the b oard ’s findings are not supported by substantial evidence. (See Whiteley v. Philip
Morris , Inc. (2004) 117 Cal.App.4th 635 , 678 [“[Appellant] raising a claim of insufficiency of the evidence assumes a ‘daunting burden.’”] , quoting In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328

- 329 .) Nonetheless, he argues the ad ministrative record does not support the two remaining reasons for his rejection. We conclude otherwise.
1. Carrasco did not meet his burden of proving he did not resist his instructors’ efforts to provide corrective instruction during a training exercise ( r eason 2 )

. With respect to reason 2 , Carrasco argues the testimony of Marks and Lee, as well

as the video of the training exercise , establish he “followed instructions, was not discourteous, did not make excuses, and was not argumentative.” According to Carrasco, the video is the “most persuasive evidence” because of what it does not depict : him not follow ing instructions, him being discourteous or argumentative, and him failing to take responsibility and refusing to accept criticism. But, as the superior court noted, the video only depicts the room

- entry exercise during which Carrasco was alleged to have failed to personally address a threat behind the door. That is not what the notice of rejection stated35 was a reason for his rejection. Instead, reason 2 focused on what Carrasco did and failed to do after the training scenario. The notice set forth some details of the tactical error that Marks and Mory observed, as factual background, but it was patently not the focus of
reason 2. Therefore, we need not address further the parties’ arguments about whether the evidence shows Carrasco did or did not make a tactical error during the training exercise. As noted, Marks testified that , during a group debriefing ( which, by definition, would have occurred after the room - entry exercise and would not have been captured in the video of the exercise ) , Carrasco was “resistant” to correction by his instructors , he “refused to listen , ” and he “talked over” the instructors and tr ied to explain to them why he thought he had done not h ing wrong. And , when Mory pulled him aside for a one - on one conversation , Carrasco did not seem to be ready to move on. When asked if Carrasco had been discourteous, Marks testified Carrasco was “somewhat resistant to listening” to his instructors and seemed to have an attitude that Marks described as , “I’ve been there, done that.” He was not rude and did not use foul lang uage. However , b ecause Carrasco would not listen and continued to defend his actions during the training exercise, Marks testified “we couldn’t get to a correcti ve discussion.” Marks explained , “You can’t correct something if someone doesn’t believe he d id something incorrect.” In addition, in his report that was introduced into evidence without objection, Marks wrote that he had told Carrasco “he would need to f ollow training directives without continually making excuses.” But , “[d]uring other scenarios ”

— meaning training36 scenarios other than the room

- entry exercise captured in the video

— “ Carrasco made additional excuses for not following the training procedures.” (Italics added.)
Th e evidence amply supports the b oard ’s factual finding s that Carrasco “denied ” that he made a tactical error during the room - entry exercise , he insisted he did nothing
wrong and, although he had been reminded to follow the training directi ves without making excuses, he continued to deny wrongdoing and was not receptive to the training. One of the specific functions of a s pecial a gent is “ to accept constructive criticism, feedback and use supervisory direction positively.” As the b oard concluded, Carrasco’s resistance to being trained on matters relating to his own safety and the safety of other

s pecial a gents, and his unwillingness to even listen to constructive criticism , “is not a trivial event ” and was a legitimate basis for the d ep artment to conclude he was unsuit ed

to the position of s pecial a gent. Carrasco argues Lee’s testimony demonstrates Carrasco was not belligerent or discourteous , and he did not talk over his instructors. T rue, t he notice of rejection stated Carrasco was “d iscourteous,” b ut the b oard made no finding that he had been rude, discourteous, or belligerent

. Because our review is limited to whether the b oard ’s findings are supported by substantial evidence ( Furtado v. State Personnel Bd. , supra , 212 Cal.App.4th at p. 742) , whether the record shows he acted rudely is beside the point. In addition, Lee testified he was not a member of the tactical team taking part in the exercise s but was only one of the role players. H e spent most of his time inside the house , where the exercises took place wh i le preparing for the next exercise , and he was not around “all the times” Marks and Mory spoke to Carrasco

. In short, Lee’s testimony37 in no way refutes Marks’ testimony about how Carrasco reacted to the attempt s to provide constructive criticism. Last, relying on Moreno’s testimony, Carrasco argues the record proves he corrected whatever deficiencies he had displayed during the training exercise

. As already noted, whether Carrasco made a tactical error is not the issue, so whether he corrected that deficiency is not one either. More importantly , Moreno’s testimony simply does not support Carrasco’s assertion

. Ca r rasco received training from Moreno shortly after he began his assignment as a s pecial a gent i n August 2013. Moreno testified that in January
2014 Carrasco had been given a “write

- up , ” so Moreno was tasked with provid ing additional field training. When asked his opinion whether, at the end of that field training, he believed “Carrasco was capable of performing his job on his own,” Moreno answered, “On some cases, yes. On some other ones, he needed more guidance.” Moreno expressly testified he would not have necessarily known about every case Carrasco handled or was involved in but , for the cases he was aware of, Moreno testified Carrasco successfully completed the field training. He was not asked and did not testify that he was aware of the Simunition® training incident or of Marks’ report, so Moreno’s testimony hardly undermines the substantial evidence in the record that supports the b oard ’s finding

. In sum, Carrasco has not shown that the evidence introduced during the hearing dictated a finding by the b oard in his favor that reason 2 was not supported by substantial evidence.38 2

. Carrasco did not meet his burden of proving he did not submit an untimely and incomplete arrest report ( r eason 4 )

. Next, Carrasco argues the administrative record does not support t he b oard ’s findings that he failed to submit an arrest report within six business days of the arrest and that the report was deficient. Once again, we conclude otherwise. Santos testified the six

- day rule for when reports had to be submitted wa s not in

wr it ing and it wa s not to be found in the d epartment ’s o perations m anual. Instead, it wa s an “office” or “local expectation” of when reports had to be submitted, and he had transmitted that expectation to subordinate agents under his supervision during “minute meetings.” Carrasco acknowledged that he bec a me aware of that expectation during a meeting that took place sometime in 2013, and Santos testified he had expressly instructed Carrasco to submit a report about the March 26, 2014 arrest within six days.
Santos also testified that, on the sixth day after th e arrest, Carrasco said he needed “follow

- up documents” and did not submit the report for revisions until April 9. And,
Carrasco acknowledged he submitted his report mo re than six days after the arrest, meaning it was late. There is simply no dispute that Santos had informed his subordinates, including Carrasco, that he expected reports to be submitted within six days. And , there is no dispute Santos had directed Carr asco to submit the arrest report in question within six days, yet Carrasco failed to comply with that directive. In short, t he evidence submitted during the evidentiary hearing supports the b oard ’s findings that Santos had “directed that [ s pecial a gents] under his supervision complete and submit an arrest report within six39 busines days after an arrest,” Carrasco “became aware of this directive in 2013,” he was the lead in vestigator on the March 26, 2014 arrest, he “was responsible for preparing the

arrest report,” and he “submitted an arrest report to . . . Santos . . . four days late.” Santos also testified that, because the arrest in question resulted in the seizure of cash, he would have expected Carrasco’s report to include certain attachments, such as an

a sset f orfeiture form and c onsent to s earch form. The draft report Santos received on April 10 lacked those attachments

. Ca rrasco did not submit those forms until later, after continued prodding from Santos. And, Carrasco acknowledged the report he submitted on April 9 for rewriting and correction was incomplete. That evidence supports the b oard ’s finding that Carrasco’s arrest report “contained numerous omissions.” Carrasco argues the d epartment had no written “policy or standard operating procedure” that governed when arrest reports had to be submitted , so he cannot be faulted for not timely submitting the report

. But, he cites no authority for the implicit proposition that failure to timely submit a report is a legitimate reason for rejecting a probationer only if the appointing authority had a written policy on the subject, and we have found none. To repeat, the evidence amply demonstrates Carrasco was aware of the directive by his supervising offic er to submit arrest reports within six days, but he failed to comply with it. Next, Carrasco argues he cannot be faulted for submitting an incomplete report because no e vidence was introduced that he “knew what required elements [the d epartment] needed in the arrest report since he had not received the training on report writing.” But, other than cite to th e fact he did not receive classroom training on report40 writing , because the OCS academy had been cancelled , Carrasco directs our attention to no affirmative evidence in the administrative record demonstrat ing he had no knowledge of what needed to be included in the report. For example, he did not himself testify that he received no training whatsoever on report writing. M o r e o ver, the recor d directly contradicts his assertion that no evidence was admitted that his “supervisor (or anyone else ) provided guidance

. . . on how to prepare the report.” Moreno specifically testified that part of the field training he provided to Carrasco included “showing him what paperwork needed to be done for different arrests, different report writing , different threat assessments, [and] different escapes.” (Italics added.) Thus, we conclude Carrasco has not demonstrated the evidence dictated that the b oard find in hi s favor that reason 4 was not supported by substantial evidence.
E

. The Administrative Record Supports t he B oard ’s Findings T hat t he Department Did Not Act in Bad Faith When It Rejected Carrasco. Carrasco als o argues the b oard erred because the administrative record demonstrates the d epartment acted in bad faith when it rejected him. Again, we are unpersuaded.
1. Additional facts.
In a “ Report of Performance for Probationary Employee ” signed December 19, 2013, Santos rated Carrasco’s performance during his first four months as a s pecial a gent in three areas as : “Improvement Needed” ( s kill, k nowledge, and l earning a bility) ; “Standard” in three areas ( w ork h abits, a ttitude, and c ommunic ation) ; “Outstanding” in

one area ( r elationships with p eople) ; and an overall rating of “Standard.” Santos41 acknowledged Carrasco was still a new s pecial a gent , and that the transition from parole agent might be difficult and stressful. But, he expected C arrasco to be more aggressive in learning the job and to take on “self

- generated investigations” so Santos could evaluate Carrasco’s report writing skills. Santos wrote he believed Carrasco had “the ability to become a great investigator and prominent mem ber of the law enforcement community.”
In a “ Letter of Performance & Training Expectations ” dated January 20, 2014, however, Santos noted several deficiencies in Carrasco’s performance. The previous October, Santos had discussed with Carrasco “ways to enh ance [his] performance and maintain efficiency in performing the duties of [his] job.” The two had discussed “training, development needs, and [the] need to follow instructions from experienced Special Agents.” T he purpose of the discussion had been “to set goals for [Carrasco] to perform [his] job duties successfully.” However, since that conversation , Carrasco’s performance had been lacking in several ar eas. First, although one of the topics during the October 2013 conversation had been the expectation that Carrasco would “cultivate and investigate a validated gang member” and “open interest in an escape cold c ase,” Carrasco had not yet “ produced any complex investigations that would demonstrate [his] ability to investigate.” Second, Carrasco had attended 10 operational briefings and knew of their importance. But, during an operational briefing conducted in December 2013, Carrasco received a personal telephone call and left the briefing, which “resulted in the disruption of the briefing, caus[ed] a breakdown in communication, and demonstrate[ed] [his] lack of interest with the case.” Third, despite receiving training on surveillance techniques and escape42 procedures, Carrasco paid insufficient attention during a n investigation of an escapee. Last, Carrasco failed to follow established protocol during the same investigation. The letter listed several expectations Carrasco was to meet, and Santos wrote that Carrasco would be assigned to an experienced s pecial a g ent for 45 days of training, after which he would be evaluated again. Carrasco acknowledged receipt of the letter, wrote that it included untrue and inaccurate statements, and signed the letter under protest. As already noted, Moreno provided Carrasco w ith additional field training for roughly 45 days, after which he concluded Carrasco “was capable of performing his job on his own” in “some cases” but , in others , “he needed more guidance.” Similarly, when asked if Carrasco “successfully complet[ed]” the 45

- day training, Santos testified, “Yes, he completed the time frame, but there were still some issues that needed to be addressed.” Santos was “ sure” he had discussed with Carrasco the areas where additional improvement was needed. Santos authored an “ I nterim Performance Report ” dated March 1, 2014, but he did not sign or officially submit it because the d epartment was “going forward” with Carrasco’s rejection. The draft report indicated that, during the 45

- day training period, Carrasco had demonstrated the ability to “[e]ffectively put together an investigative file,” and he had shown improvement with “gang validations.” However, the report indicated Carrasco had still not demonstrated adequate investigative skills, he had willfully disobey ed Santos’ directive to conduct a “cold case” investigation, he had neglected his duty during an operation to apprehend an escapee, and he had failed to accept criticism during the Simunition® training. Santos wrote that Carrasco had “not successfully43 dem onstrated the ability to perform the functions of a S pecial A gent,” and “[t]here must be demonstrable improvements or you will not pass your probation.” Although the report was not officially submitted, Carrasco acknowledged receiving it on March 21, 2014 , he disputed the truth and accuracy of its contents, and he signed it under protest. Notwithstanding that the decision to reject Carrasco had been effectively made in March 2014, he remained in his position until he was served with the notice of rejection
on June 23 , 2014

. 2. Applicable law. Even if the b oard finds the reason or reason s given by the appointing power for rejecting a probationer are supported by substantial evidence, it must still reinstate the probationer if it finds he or she has rebutted the presumption that the rejection was not made in bad faith . (§ 19175, subd. (d).) The parties agree the definition given to “bad faith” by th e appellate court in Kuhn v. Department of General Services (1994)
22 Cal.App.4th 1627 ( Kuhn ) is the correct legal standard. Citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683

- 684, the court in Kuhn observed that, “[v] iewing the terms and c onditions of employment as creating a species of contract between employer and employee, there is implied in this relationship (as in all contracts) a covenant of good faith and fair dealing; the obligation imposed by this covenant is measured by the provi sions of the particular agreement at issue. ” ( Kuhn , supra , 22 Cal.App.4th at p. 1637.) As Kuhn explained, the implied covenant “ is an implied promise that neither party will take any action extraneous to the defined relationship between them that would frustrate the other from enjoying benefits under the44 agreement to which the other is entitled. [Citations.] Thus, under its oblig ation to act in good faith DGS could not take any action with the intention that the procedural or substantive entitlements of its probationary employees be illegitimately thwarted. ” 5 ( Id

. at pp. 1637

- 1638.) In addition, t he court noted that , “[c]onceiv ably , bad faith might be demonstrated where an employer has a range of permissible actions if the choice were driven by animus against the employee’s enjoyment of a benefit.” ( Id

. at p. 1640.)
In In re Joe Nava (1995) SPB Dec. No. 95

- 05 ( Nava ) , a probationer employed by the Employment Development Department (EDD) received a performance report in which he was rated “standard” or “outstanding” in all categories, and “standard” overall. The report urged the probationer to continue his hard work and told him he was outperforming other employees “at the same stage of training.” The probationer and his supervisor signed the report and it became part of the probationer’s personnel file. ( Id . at pp. 3

- 4 [1995 WL 17007442, at p. * 2].) Th ree months lat er, the probationer received a similarly positive performance report . Th e report stated there had been some concern about the probationer’s attendance, but it noted the probationer “had taken constructive

5 Although the parties agree we should apply the test for “bad faith” from Kuhn , supra , 22 Cal.App.4th 1627, we note the analysis i n that decision appears to be in tension with the consistent holding by the California Supreme Court and this state’s appellate courts that public employees hold their employment pursuant to statute or similar enactment, not by contract , and that, at least with respect to the duration and terms of employment (as opposed to contractual matters such as entitlement to wages and pension benefits), a public employee cannot sue for breach of the implied covenant of good faith and fair dealing. (See, e.g., Shoema ker v. Myers (1990) 52 Cal.3d 1, 23

- 24; Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289, 311

- 313.) But, we need not decide in this appeal whether we agree with Kuhn ’s interpretation of section 19175, subdivision (d ), is correct.45 steps” to address those concerns and “[n]othing in the report indicated any major dissatisfaction concerns with the appellant’s work performance.” The probationer signed and returned the report . H e assumed his supervisor had also signed it and “was never told otherwise.” ( Id . at pp. 4

- 5 [1995 WL 170074 42, at p. * 2].) Unbeknownst to the probationer, a manager rejected the second performance report and directed the supervisor to prepare a revised report that now rated the probationer as “unacceptable” in three categories, “standard” in two and “outstanding” in one category, and “unacceptable” overall. In addition, the revised report now indicated the probationer’s work performance and productivity were unacceptable, and, although it acknowledged some improvement with attendance, it stated the p robationer’s absences resulted in a rating of “unacceptable” for the category of “work habits.” ( Nava , supra , SPB Dec. No. 95

- 05, at pp. 5

- 6 [1995 WL 17007442, at pp. *2

- *3].) The probationer did not learn of the revised report until he returned from a w eek

- long training, a nd, until he received a notice of rejection three months later, he was not placed on the schedule to report to work. ( Id

. at pp. 6

- 8 [1995 WL 17007442, at p. *3].) In its decision reinstating the probationer, the b oard indicated he bore “ a heavy burden” of overcoming the presumption under section 19175, subdivision (d), that his rejection was free from bad faith. ( Nava , supra , SPB Dec. No. 95

- 05, at p. 10 [1995 WL
1 7007442, at p. *5].) A pplying the test for “ bad faith ” from Kuhn , supra , 22 Cal.App.4th 1627, the board found : (1) the EDD had “misled” the probationer “about its satisfaction with his work performance” ; (2) “by refraining from issuing the revised second Report of Performance until his final day at work, [it] gave him no opportunity to address the newly46 leveled criticisms ” ; and (3) it “continued to mislead” the probationer for weeks about his employment status. ( Id . at p p . 12

- 13 [1995 WL 17007442, at p. *6].) The EDD “changed its position” about the probationer’s work performance and kept him in the dark about it “until it was too late for [him] to address the newly raised concerns.” As the b oard put it, the EDD’s “shifting eva luation ” of the probationer’s performance “ lulled [ him ] into a false sense of security . . . .” ( Id . at p. 14 [1995 WL 17007442, at pp. *6

- *7].) Therefore, the b oard concluded the record showed the EDD intended to “‘illegitimately thwart’” the probatione r’s “entitlement to a fair opportunity to demonstrate his ability to pass probation.” ( Id . at p p. 13 , 18 [1995 WL 17007442, at
pp. *6 , *8 ].)
3

. Analysis. The facts introduced during the evidentiary hearing do not show the d epartment acted in bad faith or with animus when it rejected Carrasco. As the b oard found in its ruling, the facts of this case are distinguishable from Nava because the d epartment “did not mislead [Carrasco] by giving him favorable performance evaluations and later determining that the same conduct was unacceptable.” Carrasco’s December 2013 performance evaluation rated him as “standard” overall, but Santos noted areas where he expected to see improvement. The next month, though, Santos wrote a very unfavorable let ter of performance that outlined Carrasco’s deficiencies and failure to act toward the goals he and Santos had discussed the previous October. Santos assigned Moreno to provide Carrasco with additional field training for 45

- days. Although Carrasco demons trated the ability to perform the duties of a s pecial a gent in “ some ” areas, he had47 been informed he still needed to address some issues. And, in the March 2014 “ Interim Performance Report, ” Carrasco was informed of serious deficiencies and that he was at risk of not successfully completing his probation. In other words, unlike in Nava , the d epartment did not lull Carrasco into the false sense of security by consistently telling
him he was doing very well in his job, then pull the rug out from under him a nd tell him his performance was unacceptable. ( Nava , supra , SPB Dec. No. 95

- 05, at p. 14 [1995 WL 17007442, at pp. *6

- *7].) Carrasco argues the circumstances of how reasons 2 and 4 came to be included in the notice of rejection is evidence the d epartment acted in bad faith. First, Carrasco argues the d epartment “failed to timely provide [him] with notice, additional training, and a reasonable chance to correct his deficiencies over the

s imunition trai ning.” 6 According to Carrasco, the first notice he received about issues related to the training was two months later when he received the i nterim p erformance

re port. However, by that time the d epartment had already decided to reject him and it acted du plicitously by instructing Marks to write a report about the training “after the fact

6 Carrasco also argues the d epartment acted in bad faith when it failed to comply with sections of the State of California S upervisor’s H andbook: A Guide to Employee Conduct and Discipline (2004), adopted by the former Department of Perso nnel Administration. But he cites no authority to support that proposition. To the contrary, the regulation governing performance appraisals of probationers expressly states its “provisions shall be construed as directory.” (Cal. Code Regs., tit. 2, § 5 99.795.) And, in Nava , the b oard ruled failure to comply with that regulation “does not necessarily constitute bad faith or provide justification for restoring a rejected probationer.” ( Nava , supra , SPB Dec. No. 95

- 05, at pp. 13

- 14 [1995 WL 17007442, at p. *6].)48 supporting its conclusion.” These acts, according to Carrasco, demonstrated the d epartment a cted with an “ ‘ improper motive ’ ” and with “ ‘ animus ’ ” toward him. To repeat, t he notice of rejection did not rely on Carrasco’s tactical “deficiencies” during the room - entry exercise as a reason for the rejection, so even assuming the d epartment provided him with no additional tactical training to correct those “deficiencies , ” it is not evidence of bad faith. And, to the extent Carrasco suggests he was never placed on notice or given an opportunity to correct the real deficiency at the heart of reason 2, the record suggest s otherwise. In October 2013, Santos ex pressly told Carrasco he “need[ed] to follow instructions from experienced Special Agents.” Yet, as demonstrated, post , Carrasco did not heed that directive three months later during the training exercise. Nor do we agree with Carrasco’s suggestion that t he record shows the d epartment acted duplicitously when it documented his conduct during the training exercise to support his rejection. The fact Carrasco was not immediately provided with formal notice of, or disciplined for, his conduct during the Simun ition® training did not preclude the d epartment from using that mis conduct as a basis for his rejection once it was decided that he did not meet the qualifications for h is position. An appointing authority does not waive “ its right to reject an employee d uring probation for misconduct or poor performance because it failed to reject the employee at or about the time an incident occurred. While a department should certainly keep an employee apprised of how the employee is performing during the probationary period, a department may wait until the end of the probationary period to actually effect the rejection of the employee for conduct49 occurring at any time during the probationary period.” ( In re David Rodriguez , supra , SPB Dec. No. 94

- 29, at p p
. 12

- 13 [1994 WL 16006537, at pp. *5].) Second, Carrasco argues the d epartment acted in bad faith by “pil[ing]

- on” the allegation that he failed to timely submit a complete arrest report. For the reasons just discussed, we reject his suggestion tha t the d e partment could not rely on performance deficiencies that occurred after the decision to pursue his rejection had already been made. Carrasco also repeats his assertion s that no evidence was introduced at the hearing that he received proper training on rep ort writing, and that he could not be expected to comply with a “nebulous” and unwritten rule about when reports were due. But, as discussed, ante , Carrasco bore the affirmative burden of demonstrating he did not receive any training and that he was unawa re of his supervisor’s expectations about reports, and he failed to meet that burden. Last, Carrasco argues the mere fact the d epartment included reasons 2 and 4 in the notice of rejection, when the other 4 reasons lacked evidentiary support, demonstrates it acted in bad faith and with animus. He contends the d epartment “aimed to trump up claims” against him” and “just threw spaghetti at a wall to see what would stick.” But, as the b oard noted in its ruling, there is no evidence in the record the d epartment knew or suspected that four of its reasons for rejecting Carrasco would not withstand scrutiny , and
it added reasons 2 and 4 as insurance. Even the superior court at first concluded r eason 5 was supported by substantial evidence, which belies Carrasco’s implicit suggestion that all six reasons lacked any evidentiary support whatsoever.50 And, because we have concluded, ante , that section 19175, subdivision (d), does not require reinstate ment if the b oard finds that less than all the reasons given for the rejection are supported by substantial evidence, we must agree with the b oard ’s conclusion that “intent of bad faith cannot be determine d by some quantitative standard that only measures the number of reasons ultimately found [to be] supported by substantial evidence versus the number of reasons that were not.” Given the ample evidence in the administrative record to support the b oard ’s findings that reasons 2 and 4 were supported by subs tantial evidence, we simply cannot conclude that Carrasco met his affirmative burden of demonstrating his rejection was the result of the d epartment ’s bad faith.
III.
DISPOSITION The judgment is affirmed. The d epartment and the b oard shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION

McKINSTER Acting P. J. We concur:

MILLER J.

FIELDS J.