Filed 5/13/14 L.A. County Dept. of Children and Family Services v. L.A. County Civil Service Commission CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES, 

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY CIVIL 

SERVICE COMMISSION,

Defendant and Respondent;

SHANNON EBERLY,

Real Party in Interest and

 Respondent.

 B249446

 (Los Angeles County

 Super. Ct. No. BS137137)

 

 

APPEAL from a judgment of the Superior Court of Los Angeles, Joanne B. 

O’Donnell, Judge. Affirmed. 

Shelden and Rivera and Mario R. Rivera for Plaintiff and Appellant.

No appearance for Defendant and Respondent Los Angeles County Civil 

Service Commission.
2

Law Offices of Victor Manrique and Victor M. Manrique for Real Party in 

Interest and Respondent Shannon Eberly.

_____________________________________

After appellant County of Los Angeles, Department of Children and Family 

Services (DCFS) dismissed respondent Shannon Eberly for entering false

information in appellant’s computer system, the Civil Service Commission of the 

County of Los Angeles (Commission) set aside the dismissal and imposed a 20-

day suspension on Eberly. On appeal, DCFS challenges the superior court’s 

denial of its petition for a writ of mandate commanding the Commission to 

reinstate Eberly’s discharge. We reject DCFS’s contentions and affirm. 

RELEVANT FACTUAL AND PROCEDURAL

BACKGROUND

In 2004, DCFS hired Eberly as a trainee Children’s Social Worker (CSW). 

In January 2005, she became a permanent CSW. Her duties included conducting 

monthly face-to-face visits with the children assigned to her, assessing their 

placement, and recording information in DCFS’s “CWS/CMS” computer system

(CWS/CMS system). Prior to Eberly’s discharge, her performance was evaluated 

as “[c]ompetent” and “[v]ery [g]ood,” and she was never disciplined. 

In November 2009, Eberly’s supervisor became aware that Eberly’s records 

in the CWS/CMS system misdescribed four visits with children. On April 2, 

2010, DCFS issued Eberly a notice of its intent to discharge her. After a Skelly

hearing was conducted regarding Eberly’s discharge, she was assigned limited 
3

duties while the hearing officer’s recommendation was pending.

1

In May 2010, 

there was a report that Eberly made an improper entry in the CWS/CMS system. 

DCFS amended the allegations against Eberly to include the incident, and a 

second Skelly hearing was conducted regarding it. 

On June 25, 2010, DCFS discharged Eberly. The DCFS’s discharge letter 

stated that in November 2009, Eberly falsified records of four visits with children. 

According to the discharge letter, although Eberly’s computer entries claimed that 

she had interviewed the children in their placements, she made no visit with one 

child, and saw the other children outside their placements. DCFS maintained that 

Eberly’s misconduct constituted violations of DCFS’s discipline guidelines and 

the Los Angeles County Civil Service Rules. 

Eberly appealed her discharge before the Commission, which referred the 

matter to a hearing officer. On June 8, 2011, following an evidentiary hearing, the 

hearing officer submitted a report to the Commission containing proposed findings 

of fact, conclusions of law, and a recommendation regarding the appropriate 

discipline. The hearing officer identified the selection of the disciplinary measure 

as the primary issue because Eberly “virtually” admitted the allegations against 

her. Following an evaluation of Eberly’s misconduct, the hearing officer 

concluded that it did not support the imposition of a discharge, and recommended 

instead that Eberly be suspended for 20 days. 

The Commission initially proposed to accept the hearing officer’s 

recommended decision. Later, after DCFS submitted objections, the Commission 

proposed to reject the recommended decision and sustain Eberly’s discharge. On 

 

1

In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 203 (Skelly), the Supreme 

Court held that except in minor disciplinary matters, public employees are entitled to 

notice and an evidentiary hearing on disciplinary actions taken against them.
4

January 18, 2012, following a hearing, the Commission adopted as its final 

decision the hearing officer’s proposed findings of fact, conclusions of law, and 

recommended disciplinary measure. 

DCFS sought administrative mandamus before the superior court (Code 

Civ. Proc., § 1094.5). On March 20, 2103, the superior court denied DCFS’s

petition for writ of mandate, concluding that the hearing officer, in recommending 

a 20-day suspension in lieu of a discharge, neither erred as a matter of law nor 

engaged in an abuse of discretion. Judgment in favor of the Commission and 

against DCFS was entered on April 18, 2013. This appeal followed.

DISCUSSION

DCFS challenges the superior court’s denial of administrative mandamus, 

contending that Eberly’s misconduct required a discharge. DCFS raises several 

challenges to the Commission’s determination that the appropriate discipline for 

Eberly’s misconduct was a 20-day suspension, rather than a discharge. DCFS 

argues that the determination reflects a misinterpretation of the applicable 

disciplinary guidelines and civil service rules, that it is not supported by sufficient 

evidence, and that it constituted an abuse of the Commission’s discretion. As 

explained below, we disagree.

A. Governing Principles

The standards applicable to our review are determined by the fact that 

DCFS -- not Eberly -- filed the underlying petition for writ of mandate. When a 

public employee seeks administrative mandamus regarding a dismissal or 

suspension, the superior court “exercises its independent judgment upon the 

evidence” before the Commission, as dismissals and suspensions affect the 
5

employee’s “fundamental vested right” in employment. (Melkonians v. Los 

Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1167-1168.) In 

contrast, when a public employer such as DCFS seeks administrative mandamus 

regarding the Commission’s reduction of discipline imposed on an employee, the 

superior court reviews the Commission’s factual findings for the existence of 

substantial evidence, as DCFS’s right to manage and discipline its employees is 

not a fundamental vested right. (County of Los Angeles v. Civil Service Com.

(1995) 39 Cal.App.4th 620, 633.) The superior court was thus required to apply 

the substantial evidence test to the Commission’s decision. (Ibid.) In turn, “we 

review the administrative decision, not the superior court’s decision, by the same 

standard.” (Ibid.) 

To the extent DCFS challenges the severity of the penalty that the 

Commission imposed on Eberly, we observe that the discretion to fix the penalty 

is vested solely in the administrative agency, and that neither the superior court 

nor an appellate court is free to substitute its discretion for that of the agency. 

(Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652.) The 

superior court thus examines the administrative agency’s decision for an abuse of 

discretion. (Ibid.) On appeal, we review the agency’s decision under the same 

standard. (Ibid.) Because our review “gives no deference to the trial court’s 

determination,” it is de novo “vis-à-vis the trial court.” (Ibid., italics deleted.) 

Although we examine the Commission’s choice of a penalty for an abuse of 

discretion, we independently interpret the applicable civil service rules and 

administrative guidelines. (Yamaha Corp. of America v. State Bd. of Equalization

(1998) 19 Cal.4th 1, 7-8; Department of Health Services v. Civil Service Com.

(1993) 17 Cal.App.4th 487, 494.) “The construction of county ordinances and 

rules is subject to the same standards applied to the judicial review of statutory 
6

enactments. In construing a legislative enactment, a court must ascertain the intent 

of the legislative body which enacted it so as to effectuate the purpose of the law.” 

(Id. at p. 494.)2 

B. Proceedings Before the Hearing Officer

DCFS’s contentions focus on the hearing officer’s findings of fact and 

conclusions of law, as the Commission accepted those determinations in their 

entirety. We therefore set forth the evidence presented to the hearing officer and 

his determinations. 

1. Allegations Regarding Misconduct

Before the hearing officer, DCFS alleged that Eberly was subject to 

discipline because she contravened its guidelines governing contacts with placed 

children. DCFS’s procedural guide requires CSWs to conduct monthly meetings 

with children living in foster homes and record those contacts within three days in 

the CWS/CMS system. To support Eberly’s discharge for violation of those 

procedures, DCFS relied on a civil service rule and several DCFS disciplinary 

guidelines. 

Rule 18.031 of the Los Angeles County Civil Service Rules (Civil Service 

Rule 18.031) (L.A. County Code of Ord., tit. 5, appen. 1) provides: “Failure of an

 

2 We recognize that the superior court, in denying the petition for writ of mandate, 

believed it was obliged to apply its “independent judgment” to the Commission’s factual 

findings. However, as we review the court’s ruling, not its reasoning (J.B. Aguerre, Inc. 

v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15), we will affirm 

the ruling on any theory properly supported by the record (Day v. Alta Bates Medical 

Center (2002) 98 Cal.App.4th 243, 252, fn. 1). Because we conclude there was 

substantial evidence to support the Commission’s findings, the superior court’s 

application of a more stringent standard of review cannot be regarded as prejudicial.
7

employee to perform his or her assigned duties so as to meet fully explicitly stated

or implied standards of performance may constitute adequate grounds for

discharge, reduction or suspension.” The rule further identifies grounds for

discipline, including whether the employee has failed to “report information

accurately and completely” or has engaged in conduct “unbecoming a county

employee. . . .”

3

Chapter 14.400 of the DCFS Personnel Manual authorizes ranges of

sanctions for “1st offense[s]” in defined categories of misconduct. Under those

guidelines, employees who withhold information from superiors or fail to maintain

records may receive reprimands or suspensions (ch. 14.400, §§ A(15), F(3));

employees who do not follow established rules and regulations may receive a

penalty ranging from a warning or reprimand to a discharge (ch. 14.400, §§ B(4),

F(10)); and employees who engage in criminal, dishonest, or immoral conduct, or

violate a professional ethical rule, may receive penalties ranging from a 15-day

suspension to a discharge (ch. 14.400, §§ D(9), F(1)). 

2. Evidentiary Showings Before the Hearing Officer 

At the evidentiary hearing, Felicia Mitchell, Eberly’s supervisor, testified 

that in November 2009, Eberly asked for vacation time during the Thanksgiving 

 

3 Civil Service Rule 18.031 states: “Where appropriate, such grounds may include,

but are not limited to, qualitative as well as quantitative elements of performance, such as

failure to exercise sound judgment, failure to report information accurately and

completely, failure to deal effectively with the public, and failure to make productive use

of human, financial and other assigned resources. Grounds for discharge, reduction or

suspension may also include any behavior or pattern of behavior which negatively affects

an employee’s productivity, or which is unbecoming a county employee; or any behavior

or condition which impairs an employee’s qualifications for his or her position or for

continued county employment.”
8

holidays. Mitchell was aware that Eberly had child care issues and her 

grandmother was ill. Mitchell told Eberly that if she did not intend to return to 

work before December, she had to complete her November duties prior to taking a 

vacation. 

Mitchell further testified that during November 2009, Eberly told her that 

she planned to visit a specific child on November 13. On that date, Eberly phoned 

Mitchell and discussed the visit as if it had taken place. The following day, 

Mitchell received a phone call from the child’s caregiver, who said Eberly had not 

appeared for the visit. Mitchell examined Eberly’s entries in the CWS/CMS

system, and found no information regarding the visit. 

When Mitchell questioned Eberly regarding their phone conversation, 

Eberly acknowledged that she did not make the planned visit, but stated that 

Mitchell had misunderstood her remarks, which she maintained were intended to 

describe a visit with a different child. Mitchell cautioned Eberly not to enter false 

information in the CWS/CMS system regarding the missed visit, and initiated an 

audit of Eberly’s CWS/CMS entries for November 2009. In late November, 

Mitchell learned that Eberly’s CWS/CMS entries contained false statements 

regarding four visits. The entries reflected a purported November 18 visit with a 

child named “Albert” that did not take place, and otherwise misreported the 

locations of visits with three other children on November 5, 13, and 18. 

Mitchell further testified that in May 2010, after Eberly was placed on 

limited duties, Eberly directly entered some information in the CWS/CMS system. 

According to Mitchell, although Eberly was permitted to arrange for a unit clerk to 

input the information, it was improper for her to enter it herself. 

Eberly testified as follows: She was ordinarily responsible for 25 to 34 

cases. In early November 2009, she learned that her grandmother had cancer. In 
9

addition, her husband, who had been acting as caregiver for their children, 

received notice that he was to undertake two weeks of job training in late 

November. When Eberly asked Mitchell for time off during the week of 

Thanksgiving Mitchell replied that Eberly would be permitted to take the time off 

only if she completed all her November visits by November 20, and documented 

them in the CWS/CMS system. 

According to Eberly, that requirement compelled her to spend considerable 

time out of her office making visits. “[F]or the first time” as a CSW, she created 

entries for visits in the CWS/CMS system in advance of them, with the intention 

of modifying the entries, if necessary, following the visits. Her plan was to 

transmit new information by e-mail to Cindy Torres, her unit clerk. Eberly stated: 

“I was in a time crunch to get my visits done and the information inputted in[to] 

the system, so I tried to save myself a step, which I . . . realize is a mistake.” 

Eberly acknowledged that her use of pre-visit entries was not “best practice,” but 

denied that she intended to deceive anyone. 

Eberly further testified that she failed to correct the errors in the pre-visit 

entries through oversights. On November 18, 2009, when she arrived at Albert’s 

placement for a pre-arranged visit, neither he nor his caregiver was present. To 

reschedule the meeting, she phoned the caregiver, who was unable to commit to a 

new date for a visit because Albert was ill. Through an oversight, Eberly failed to 

correct her CWS/CMS system entry for the visit. Regarding the remaining three 

children, Eberly testified that she saw them outside their placements. Although 

she made changes to her pre-visit entries after seeing the children, she mistakenly 

failed to amend the meeting place identified in the entries. 

Eberly further testified that she was unaware of any problem regarding her 

entries until December 29, 2009, when Albert’s caregiver told Eberly that 
10

someone from DCFS had contacted her regarding Eberly’s November visits, and 

reminded Eberly that she never rescheduled the November 18, 2009 visit. When 

Eberly realized that she had failed to carry out a November visit with Albert, she 

discussed the issue with Mitchell, who asked her to complete a “missed child 

contact form,” but mentioned no investigation into Eberly’s entries. 

Later, after discovering the investigation, Eberly sent a memorandum to 

Roxanna Flores-Aguilar, a DCFS assistant regional manager. In the 

memorandum, dated February 19, 2010, Eberly stated that she created an entry for 

the scheduled November 18, 2009 visit with Albert before it occurred because she 

was planning to take some time off, and needed to complete her visits. Eberly 

further stated that she lacked a good explanation for the other erroneous entries, 

but believed they were due to a “mistake.” Eberly denied that she “intentionally or 

maliciously falsif[ied] a contact.” 

During the hearing, Eberly also denied that she phoned Mitchell on 

November 13, 2009, to discuss a visit she never made. According to Eberly, on 

that date, she learned that her own daughter was ill, and contacted the pertinent 

child’s caregiver to cancel the scheduled visit. When the caregiver became irate, 

Eberly phoned Mitchell to report the incident, and told her that she intended to go 

home to care for her daughter. 

Eberly further testified that in May 2010, after she was assigned limited 

duties, her caseload was distributed to other CSWs. While “cleaning out” cases

unrelated to her inaccurate CWS/CMS system entries, she discovered some 

information that had not been entered into the CWS/CMS system. By e-mail, 

Eberly forwarded the additional information to Torres for entry into the 

CWS/CMS system. When Torres became confused regarding the information, 

Eberly walked to her desk and made the entries herself, while Torres was present. 
11

According to Eberly, her assignment to limited duties did not bar that conduct.4 

3. Hearing Officer’s Proposed Decision 

Following the presentation of evidence, the hearing officer issued a 15-page 

proposed decision containing factual findings and conclusions of law. The officer 

gave primary attention to the four CWS/CMS system entries cited in the DCFS’s 

discharge letter. The officer found that the four entries contained falsehoods, as 

one reported a visit with a child whom Eberly never saw in November, and the 

others misidentified the locations of Eberly’s visits. According to the officer, 

Eberly did not intend to deceive her superiors, concluding that “[s]he began her 

entries on case notes prior to conducting the home visits and intended to correct 

[them] after making the visits[,] but failed to do so due to admitted forgetfulness.” 

The officer further stated that Eberly “put the entries into the computer prior to 

visiting the children because she felt pressure to finish her work prior to taking 

vacation leave to deal with family matters.” 

Although the DCFS’s discharge letter mentioned the May 2010 incident

without identifying it as a basis for Eberly’s discharge, the hearing officer

examined the incident and concluded that it was “de minimus.” According to the 

officer, the evidence showed only that after Eberly asked Torres to input some old 

contact information into the CWS/CMS system, Eberly entered it herself when 

 

4

Several other witnesses also testified during the evidentiary hearing. Roxanna 

Flores-Aguilar testified that in March 2010, she assigned Eberly to limited duties. Art 

Lieras, the officer who conducted Eberly’s Skelly hearings, testified that he recommended 

that she be discharged. Lynne Condon, a DCFS employee relations manager, testified 

that she assisted in the preparation of DCFS’s discharge letter regarding Eberly. She 

opined that a discharge was the proper penalty for Eberly’s misconduct. Condon also 

testified that Lieras recommended a 30-day suspension for Eberly. 
12

Torres became confused. The officer determined that Eberly’s conduct did not 

constitute “a disciplinable incident.” 

Following a discussion of DCFS’s disciplinary guidelines, the hearing 

officer determined that “[s]uspension under progressive discipline,” rather than a 

discharge, was the appropriate discipline for the four pre-visit entries, noting that 

Eberly had no prior record of discipline, that her misconduct did not harm the 

children, and that she did not intend to deceive her superiors. The officer 

proposed the following conclusions of law: “1. [Eberly’s] conduct . . . violated 

[the DCFS disciplinary guidelines cited by DCFS]. [¶] 2. [Eberly’s] conduct 

violated Civil Service Rule 18.031. [¶] 3. The allegations of the Letter of

Discharge are true. [¶] 4. The appropriate remedy is reinstatement of [Eberly] to 

her position as CSW [], 20 days suspension, and reimbursement for salary and 

benefits for the time since her discharge[,] minus the [20] days suspension time.” 

C. No Errors in Interpreting the DCFS Disciplinary Guidelines

DCFS contends that the Commission, in adopting the hearing officer’s 

proposed decision, erroneously interpreted the DCFS disciplinary guidelines to 

“require that progressive discipline be imposed before discharge could be 

effected.” We disagree. 

At outset, we observe that the hearing officer did not conclude that the 

DCFS disciplinary guidelines required the imposition of progressive discipline. 

Rather, the officer determined that under those guidelines, “[d]iscipl[ine] is 

generally progressive unless the offense is so egregious that discharge without any 

other prior record [of misconduct] is appropriate.” Furthermore, the officer 

determined that although Eberly’s conduct might be characterized as “dishonest,” 

it did not rise to egregious behavior warranting a dismissal under the guidelines, in 
13

view of her lack of an intention to deceive her superiors and the absence of harm 

to the children. As explained below, we see no error in those conclusions, insofar 

as they reflect interpretations of the governing rules and disciplinary guidelines. 

In construing civil service rules and administrative guidelines, we look first 

to their language, “attempting to give effect to the usual, ordinary import of the 

language and seeking to avoid making any language mere surplusage.” 

(Department of Health Services v. Civil Service Com., supra, 17 Cal.App.4th at 

p. 494.) If the language is ambiguous, we may give some weight to established 

administrative interpretations of the rule or guideline. (Id. at p. 495.) In contrast, 

if there is no ambiguity, we derive the intent underlying the rule or guideline 

“‘from the plain meaning of the language itself.’” (Head v. Civil Service Com.

(1996) 50 Cal.App.4th 240, 244 quoting Botello v. Shell Oil Co. (1991) 229 

Cal.App.3d 1130, 1135.) 

Because Civil Service Rule 18.031 mandates no specific sanction in any

given set of circumstances, we focus on the DCFS disciplinary guidelines. As 

noted above (see pt. B.1., ante), Chapter 14.400 of the DCFS Personnel Manual

identifies several types of discipline for the misconduct alleged against Eberly,

including a discharge, but does not mandate the imposition of a discharge. Indeed,

the prefatory paragraph of that chapter states: “The list of disciplinary actions is

intended as a guide only, and should not be applied ‘Automatically’ in relation to

actual infractions. . . . All the circumstances surrounding a particular offense must

necessarily be considered.” Chapter 14.101 of the DCFS Personnel Manual

further states: “Generally, discipline will follow a ‘progressive-step method.’ 

This method attempts to correct . . . the employee’s . . . misconduct at the mildest,

most effective level. It should be imposed when the manager can reasonably

anticipate that the discipline will be effective.” (Underlining deleted.) 
14

Exceptions to the “progressive-step” method are specified in Chapter 

14.102 of the DCFS Personnel Manual (Chapter 14.102), which states: “There are 

some acts of misconduct which by their nature are not appropriate for progressive 

discipline. These acts [are] ones which the employee should have reasonably 

known to be unacceptable, without specific notice from [DCFS], or which are 

generally socially unacceptable. [¶] Such behavior includes, but is not limited to, 

dishonesty, theft, violent or disruptive behavior, insubordinate behavior, or 

behavior which is illegal or places [DCFS] in violation of [f]ederal law, [s]tate 

law, . . . local ordinance[s], or court orders. Behavior of this type should be 

disciplined by suspension, or[], if warranted, discharge on the first occurrence.” 

The DCFS disciplinary guidelines, by their plain language, support the 

hearing officer’s conclusion that DCFS discipline is ordinarily progressive, absent 

“egregious” misconduct. Similarly, the language of Chapter 14.102 substantiates

the officer’s conclusion that absent a prior record of discipline, a discharge is 

warranted only for certain types of grave misconduct. Generally, under the 

principle of expressio unius est exclusio alterius, the listing of items in a rule 

establishes the types of items outside the scope of the rule. (Dyna-Med, Inc. v. 

Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.) Because 

the misconduct enumerated in Chapter 14.102 is intentional, injurious, or 

manifestly wrong, judged by social or legal standards, the officer reasonably 

determined that Eberly’s mistaken but ultimately harmless entries did not 

constitute egregious misconduct warranting a discharge under the disciplinary 

guidelines. 

In so concluding, we do not condone Eberly’s misconduct or minimize its 

significance. We agree with the superior court that her behavior carried a

disturbing potential for serious harm to the children for whom she was 
15

responsible. As elaborated below (see pts. D. & E., post), we find only that the 

Commission did not abuse its discretion in imposing a suspension as discipline for 

the misconduct.

D. No Error in Factual Findings

DCFS contends that the Commission erred in finding that Eberly lacked the 

intention to deceive when she entered the false information in the CWS/CMS 

system. As noted above, the Commission adopted the hearing officer’s findings 

that Eberly made the pre-visit entries in order to secure time off “to deal with 

family matters,” and that she failed to correct them “due to admitted 

forgetfulness.” For the reasons discussed below, we reject DCFS’s contention. 

In reviewing the Commission’s factual findings, we examine the record for 

the existence of substantial evidence to support them. Generally, factual findings 

are examined for the existence of substantial evidence. (Shupe v. Nelson (1967) 

254 Cal.App.2d 693, 700.) On review for substantial evidence, “‘[c]onflicts and 

even testimony which is subject to justifiable suspicion do not justify the reversal 

of a judgment, for it is the exclusive province of the [trier of fact] . . . to determine 

the credibility of a witness and the truth or falsity of the facts upon which a 

determination depends.’” (Daly v. Wallace (1965) 234 Cal.App.2d 689, 692, 

emphasis omitted, quoting People v. Huston (1943) 21 Cal.2d 690, 693.)5 

 

5 Upon review for substantial evidence, we do not reweigh the evidence. (In re 

Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) Rather, “the power of an appellate court 

begins and ends with the determination as to whether, on the entire record, there is 

substantial evidence, contradicted or uncontradicted, which will support the determination 

[of the trier of fact], and when two or more inferences can reasonably be deduced from 

the facts, a reviewing court is without power to substitute its deductions for those of the 

[trier of fact].” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics 

deleted.)
16

Here, there is sufficient evidence to support the Commission’s findings. 

Before the hearing officer, Eberly testified that she made the pre-visit entries 

because she needed time off to resolve family matters, and that she planned to 

correct inaccuracies in the entries after the visits, but mistakenly failed to do so. 

That testimony is adequate to sustain the Commission’s finding.

DCFS contends Eberly’s testimony was conclusively discredited by other 

evidence, including evidence from Eberly herself. DCFS maintains that the four

November 2009 entries were “so specific and detailed that it is not possible that 

[they] could have been entered in error.” DCFS also argues that Eberly’s 

professed reasons for the entries -- namely, her grandmother’s illness and her 

husband’s job training -- were not credible, as she never mentioned them in her 

February 19, 2010 memorandum to Flores-Aguilar, and submitted no documentary 

evidence corroborating their existence.

6

In addition, DCFS contends that Eberly gave shifting testimony regarding 

her reasons for the entries. Eberly initially testified that she needed time off 

during Thanksgiving week because her grandmother’s chemotherapy began that 

week, as did her husband’s job training. She also stated that both considerations 

motivated all four of her entries, the earliest of which concerned a visit on 

November 5, 2009. She later acknowledged that her husband’s job training did 

not motivate the earliest entry. According to Eberly, although she was aware that 

her husband was to undergo training, she learned its starting date -- namely, 

November 23, 2009 -- only “[t]wo days” before it began. 

 

6

In a related contention, DCFS argues that Eberly did not cite the purported reasons 

during her Skelly hearings. However, that contention relies on matters beyond the proper 

scope of our review, as no transcripts of the Skelly hearings were submitted to the 

Commission or its designated hearing officer.
17

The evidence upon which DCFS relies did not conclusively discredit 

Eberly’s testimony. As our Supreme Court explained in Clemmer v. Hartford Ins. 

Co. (1978) 22 Cal.3d 865, 878, even internally inconsistent testimony from a 

single witness may support a judgment. “It is for the trier of fact to consider 

internal inconsistencies in testimony, to resolve them if this is possible, and to 

determine what weight should be given to such testimony.” (Ibid.) Furthermore, 

“[t]he testimony of a single witness is sufficient to uphold a judgment even if it is 

contradicted by other evidence, inconsistent or false as to other portions.

[Citations.]” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) We reject the 

statements of a witness that the factfinder has believed only if they are “inherently 

improbable,” that is, “physically impossible or obviously false without resorting to 

inference or deduction.” (Watson v. Department of Rehabilitation (1989) 212 

Cal.App.3d 1271, 1293; see Daly v. Wallace, supra, 234 Cal.App.2d at p. 692.) 

While a trier of fact might well have been skeptical of Eberly’s explanations,

Eberly’s testimony was neither physically impossible nor obviously false on its 

face. 

We recognize that DCFS is understandably and appropriately concerned 

regarding Eberly’s honesty, as she is charged with the care of children. However, 

although a trier of fact could have rejected her testimony, the hearing officer and 

the Commission did not do so. As explained above, under the standard governing 

our review, there is sufficient evidence to support the Commission’s finding that 

Eberly lacked the intent to deceive. 7 

 

7 DCFS’s reply brief contends that Eberly’s testimony regarding her “family issues” 

conclusively shows that they motivated none of her inaccurate entries. DCFS argues that 

Eberly became aware of her grandmother’s cancer and her husband’s job training at the 

same time. DCFS further argues that Eberly first learned the training’s starting date “two 

days” before it began on November 23. Because Eberly’s inaccurate entries were made 

(Fn. continued on next page.)
18

E. No Abuse of Discretion in Imposing Suspension

DCFS contends the Commission abused its discretion in reducing the 

discipline imposed on Eberly to a 20-day suspension. As explained below, we 

disagree.

In reviewing the Commission’s exercise of its discretion, “we bear in mind 

the principle [that] ‘[c]ourts should let administrative boards and officers work out

their problems with as little judicial interference as possible. . . . Such boards are 

vested with a high discretion and its abuse must appear very clearly before the 

courts will interfere.’ [Citations.]” (Talmo v. Civil Service Com. (1991) 231 

Cal.App.3d 210, 230.) Under this standard, “[i]f reasonable minds may differ with 

regard to the appropriate disciplinary action, there is no abuse of discretion.” 

(Lowe v. Civil Service Com. (1985) 164 Cal.App.3d 667, 677.) Generally, in the 

context of public employee discipline, “the overriding consideration” regarding an 

abuse of discretion “is the extent to which the employee’s conduct resulted in, or if 

repeated is likely to result in, ‘[harm] to the public service.’ [Citations.] Other 

relevant factors include the circumstances surrounding the misconduct and the 

likelihood of its recurrence. [Citation.]” (Skelly, supra,15 Cal.3d at p. 218.) 

Here, the Commission adopted the hearing officer’s conclusion that 

“[s]uspension under progressive discipline [was] appropriate in the 

circumstances.” As noted above (see pts. C. & D., ante), the pertinent disciplinary 

 

on or before November 18, DCFS maintains that they necessarily preceded Eberly’s 

“family issues.”

Eberly’s testimony compels no such conclusion. She testified that she first became 

aware of her grandmother’s cancer at the “beginning of November 2009,” and that she 

was aware of her husband’s impending training before she learned its starting date. 

Furthermore, she conceded only that the training did not motivate her November 5 entry. 

The record thus does not establish that the hearing officer erred in attributing Eberly’s 

(Fn. continued on next page.)
19

guidelines permit the imposition of a suspension in the absence of egregious 

misconduct, and there was substantial evidence to support the factual finding that 

Eberly acted without an intent to deceive. Furthermore, the record discloses 

sufficient evidence to support the factual determinations that Eberly had no prior 

record of discipline, that she was “a good productive employee,” and that her 

misconduct caused no harm to the children under her care. In view of Chapter

14.400 of the DCFS Personnel Manual, which authorizes the imposition of

discipline at the “mildest, most effective level” likely to correct performance, we 

see no abuse of discretion in the Commission’s decision to impose a 20-day

suspension. 

DCFS challenges that decision on several grounds, which we discuss below.

1. No Deference to DCFS’s Decision to Discharge 

DCFS contends the Commission failed to give due weight to DCFS’s own 

decision to discharge Eberly. However, nothing before us suggests that the 

Commission was obliged to give substantial deference to DCFS’s decision. 

In Kolender v. San Diego County Civil Service Com. (2005) 132 

Cal.App.4th 1150, a sheriff maintained on appeal that the pertinent commission 

was required to review his findings related to a disciplinary decision for the 

existence of substantial evidence, rather than making its own findings. The 

appellate court rejected that contention, noting that neither the statutory scheme 

applicable to civil service commissions nor the governing county charter specified 

the commission’s standard of review of the sheriff’s findings. (Id. at pp. 1156-

1157.) The court concluded that “the [c]ommission should independently review 

 

entries to “family matters.”
20

the facts and law, and the [s]heriff’s findings and final disciplinary order are not 

due substantial deference.” (Id. at p. 1157.) 

We reach a similar conclusion here, as DCFS has identified no statute or 

rule obliging the Commission to defer to its decisions. Furthermore, the Los 

Angeles County Civil Service Rules authorize the Commission to conduct 

evidentiary hearings (rules 4.06, 4.07), and provide that “[i]n hearings on

discharges, reductions or suspensions in excess of five days, the burden of proof

shall be on the appointing power, except that the burden of proving affirmative

defenses shall be on the person asserting them” (rule 4.12, italics added). In view

of these rules, DCFS’s contention fails. 

2. Adequate Basis for Suspension 

DCFS contends that the Commission’s decision cannot be reconciled with 

its conclusion that Eberly engaged in the misconduct alleged in the letter of 

discharge, pointing to Hankla v. Long Beach Civil Service Com. (1995) 34 

Cal.App.4th 1216 (Hankla). There, an off-duty police officer became involved in 

a heated verbal dispute following a minor driving incident and fired a gun, thereby 

wounding the other participant in the dispute. (Id. at pp. 1218-1222.) Following 

an investigation, the officer’s employer discharged him, concluding, inter alia, that 

he unnecessarily involved himself in the verbal dispute, and “intentionally and 

without justification” fired his gun and caused a serious wound. (Ibid.) Although 

the civil service commission found that the officer had engaged in that 

misconduct, it reduced his discipline to a suspension. (Id. at p. 1222.) The 

appellate court held that the reduction was an abuse of discretion because it 

“manifest[ed] an indifference to public safety and welfare.” (Id. at pp. 1222-

1226.)
21

No such indifference is shown here, as Eberly’s misconduct was not of the 

same magnitude as that displayed in Hankla. Although the Commission 

concluded that she engaged in the misconduct alleged against her, it also found the 

existence of significant mitigating circumstances warranting the imposition of a 

suspension. In view of those findings, the Commission’s decision does not 

constitute an abuse of discretion.8 

DCFS also maintains that the Commission’s ruling, as reflected in the 

hearing officer’s 15-page proposed decision, does not properly articulate the 

connection between the evidence and the Commission’s imposition of a 

suspension. We disagree. Agencies rendering decisions subject to administrative 

mandamus are obliged to “set forth findings to bridge the analytic gap between the 

raw evidence and ultimate decision or order.” (Topanga Assn. for a Scenic 

Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515; Code Civ. Proc., 

§ 1094.5.) Those findings are sufficient when “they apprise the interested parties 

and the courts of the basis for administrative action.” (Gaenslen v. Board of 

Directors (1985) 185 Cal.App.3d 563, 573.) That is the case here.9 

 

8 DCFS suggests that the Commission gave insufficient weight to the May 2010

incident, arguing that her conduct “was a direct violation of verbal and written 

instructions” regarding her limited duties. However, as the hearing officer noted, that 

incident was not identified as a basis for Eberly’s termination. Furthermore, the evidence 

before the officer showed that Eberly was permitted to have Torres enter the pertinent 

information, and that she entered it herself while Torres was present. We see no error in 

the Commission’s conclusion that Eberly’s misconduct was “de minimus.”

9

In a related contention, DCFS suggests that the hearing officer’s report contains 

contradictory findings. DCFS notes that although the officer expressly found Eberly did 

not visit Albert in November 2009, in recommending a suspension, the officer stated that 

“there was no harm [from the inaccurate entries] and all the children were seen by 

[Eberly] . . . .” However, as the latter remark occurred within a discussion of harm to the 

children, it is reasonably understood to mean that Eberly saw Albert, albeit after the 

missed November visit.

(Fn. continued on next page.)
22

3. No Improper Reliance on Evidence Outside the Record

DCFS contends the Commission’s decision was improperly influenced by 

materials not admitted into evidence before the hearing officer. While considering 

the hearing officer’s proposed decision, the Commission denied Eberly’s request 

for judicial notice of items not submitted to the hearing officer, including portions 

of the Los Angeles County’s policy regarding the Family Medical Leave Act (29 

U.S.C. § 2601 et seq.) (FMLA). Under that policy, when an employer becomes 

aware that an employee requires a leave for reasons falling under the FMLA, the 

employer must direct the employee’s attention to the possibility of a FMLA leave. 

DCFS argues that the Commission, in adopting the proposed decision, incorrectly

relied on the FMLA policy. As explained below, we reject that contention. 

a. Governing Principles 

The Commission’s decision is subject to “a strong presumption that official 

duty has been regularly performed.” (Schneider v. Civil Service Com. (1955) 137 

Cal.App.2d 277, 284; Evid. Code, § 664.) The presumption is rebuttable, as “its 

effect is to impose upon the party against whom it operates the burden of proof as 

to the nonexistence of the presumed fact.” (Gee v. California State Personnel 

Bd. (1970) 5 Cal.App.3d 713, 718; Evid. Code, § 606.) Thus, the presumption 

may be dispelled only when the record affirmatively shows that an administrative 

 

Although Eberly was never asked whether she visited with Albert after the missed 

visit, the record supports the inference that she did so. Eberly testified that her practice 

was to see Albert at least once a month; that on December 29, 2009, when she discovered 

the missed November visit, she sought Mitchell’s help because she had never before 

failed to make a monthly child contact; and that she was responsible for her assigned 

cases until April 2010, when she was placed on “desk duty.” In view of this evidence, the 

hearing officer could reasonably conclude that Eberly made monthly visits with Albert 

after the missed November visit.
23

body failed to apply the requisite standards. (See Mountain Lion Foundation v. 

Fish & Game Com. (1997) 16 Cal.4th 105, 132; Noguchi v. Civil Service Com.

(1986) 187 Cal.App.3d 1521, 1537-1538.) 

b. Underlying Proceedings

Although the full FMLA policy was not admitted into evidence before the 

hearing officer, the parties offered testimony referring to the policy. Mitchell 

testified that when Eberly sought time off, she made a vacation request, not a 

request for leave under the FMLA. Eberly testified: “At the time [of the request,] 

I didn’t think about FMLA. . . . I don’t know all the ramifications of that, all the 

details of . . . how to get that time off.” 

Following the presentation of evidence, Eberly contended that “[a]t no time 

did [Mitchell] offer leave pursuant to the [FMLA], [but] instead improperly 

conditioned [Eberly’s] time off approval on expediting the completion of caseload 

tasks, thereby contributing to the rush in [Eberly’s] work.” Although the hearing 

officer’s proposed decision noted that contention, it contained no finding 

regarding a violation of the FMLA policy. The hearing officer concluded only 

that Eberly made the four pre-visit entries “because she felt pressure to finish her 

work prior to taking vacation leave to deal with family matters.” 

Later, when the Commission proposed to sustain Eberly’s discharge, Eberly 

asked the Commission to take judicial notice of the FMLA policy, insofar as it 

imposed a duty on employers to offer FMLA leaves, as well as several disciplinary 

decisions by the Commission. On January 18, 2012, at the hearing on the 

Commission’s proposal to sustain Eberly’s discharge, the Commission denied 

Eberly’s requests for judicial notice. Following that ruling, DCFS counsel argued 

that the evidence before the hearing officer was “very clear” that although Eberly 
24

was aware of the FMLA policy, she made only a vacation request. He further 

argued that the evidence established “no FMLA violation.” Eberly’s counsel 

responded that he did not ask the Commission to find a FMLA violation, and 

instead urged the Commission to find “as a mitigating circumstance that [Eberly] 

was sped up in order to get the time [off].” 

After the parties’ counsel completed their arguments, the Commission 

discussed a motion to adopt the hearing officer’s proposed decision. In support of 

the motion, Commissioner Lynn Adkins stated: “I’m not condoning what [Eberly] 

did. . . . But even without the FMLA, the [h]earing [o]fficer came down with a 20-

day suspension. And I’m wondering, where is management? [¶] . . . Where is 

management, to take an employee and say . . . you’ve got FMLA here, you’re 

obviously distraught, I’m going to put a little more pressure on you to do 

something, and that . . . bothers me.” (Italics added.) Soon afterward, the 

Commission decided to adopt the hearing officer’s proposed decision. 

c. Analysis

DCFS maintains that Commissioner Adkins’s remarks necessarily reflect a 

reliance on the provision of the FMLA policy excluded under the Commission’s 

ruling. We disagree. That ruling did not preclude Commissioner Adkins from 

making references to the FMLA. Before the Commission, there was no dispute 

that the evidence submitted to the hearing officer established the existence of the 

FMLA policy, which provides for leaves in some circumstances. The 

Commission’s ruling merely barred consideration of a specific aspect of that 

policy, namely, the employer’s duty to inform employees of their right to a FMLA

leave. 
25

Nor are Commissioner Adkins’s remarks reasonably understood to assert a 

violation of that duty. In supporting the motion to adopt the hearing officer’s 

recommended decision, Commissioner Adkins expressly noted that the hearing 

officer made no finding regarding a FMLA violation. Viewed in context, 

Commission Adkins’s remarks appear merely to chide “management” for applying 

“a little more pressure” to a “distraught” employee, without even exploring the 

possibility of a FMLA leave. Accordingly, DCFS has failed to rebut the 

presumption that the Commission complied with its official duties. (See People v. 

Belmontes (1988) 45 Cal.3d 744, 816, disapproved on another ground in People v. 

Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [viewed in context, trial court’s 

apparently improper remark reflected no disregard of governing law, and thus 

failed to overcome presumption that official duties were performed].) In sum, the 

Commission did not abuse its discretion in imposing a suspension on Eberly. 

 
26

DISPOSITION

The judgment is affirmed. Eberly is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.