APPEAL from the judgment of the Superior Court of Los Angeles County. David P. Yaffe, Judge. (Los Angeles County Super. Ct. No. BS114536)
The opinion of the court was delivered by: Grimes, J.
CERTIFIED FOR PUBLICATION
The sole issue presented on appeal is whether the trial court committed error in issuing a peremptory writ of mandate directing defendant and appellant Los Angeles Unified School District Personnel Commission (Commission) to vacate that portion of its administrative order of April 16, 2008, denying back pay to plaintiff and respondent Steven Candari and remanding to the Commission to determine the amount of back pay owed to Candari. We find no error and affirm.
Candari was hired by defendant and appellant Los Angeles Unified School District (LAUSD)*fn1 in 1997. In 2006, Candari was a tenured or "permanent" carpenter for LAUSD, assigned to the Maintenance and Operations Branch, District 6. Candari also served as a union steward at that time.
On September 13, 2006, Candari took his regular lunch break between 11:30 a.m. and 12:00 p.m. He went to Las Trancas restaurant with two co-workers, William Rios and Ignacio Alcaraz. Candari and Alcaraz ordered food but no beverages, drinking only the water brought to the table by the waitress when they sat down. Rios ordered a bottle of beer with his lunch. He did not like the way it tasted, so he ordered a bottle of Bohemia beer -- a brand he knew he liked. He drank that beer with his meal.
At around 11:50 a.m., Lionel Barreda came into the restaurant. Barreda was an area operations supervisor for LAUSD. He saw Candari and Rios, walked up to their table and had a brief conversation with them. Barreda then sat down at another table with his wife and two female friends, who had been waiting for him to arrive. Candari and his co-workers left the restaurant just before noon. Candari returned to his work for that day replacing window grills at Heliotrope Elementary School.
Because he saw two beer bottles on the table where Candari was seated, Barreda called his superior, George Evans, and reported the incident to him. Evans told Barreda to come back to the office immediately so they could discuss the situation. Barreda reported to Evans that he did not see anyone drinking beer, but he did see two, or perhaps three, beer bottles on the table. Evans directed two supervisors to go to where Candari and Rios were working their afternoon shifts and take them to be tested for alcohol.*fn2
Candari's supervisor, Trevor Thomas, accompanied by Kirk Encinas, went to see Candari and told him he had to submit to alcohol testing immediately. He denied drinking any alcohol at lunch and refused to be tested. Candari stated he needed to talk to his union representative, but he was unable to reach him by phone after several attempts. Candari did not appear to be under the influence of alcohol in any way. Nevertheless, Thomas and Encinas told Candari to have someone pick him up and go home if he refused to be tested. His wife picked him up, and he was suspended as of the next day.
LAUSD served Candari with a Notice of Unsatisfactory Service, stating the grounds of his suspension and recommendation of dismissal for insubordination, violation of employee ethical rules and appearing for work under the influence of alcohol, all arising from the September 13, 2006 incident. LAUSD thereafter formally terminated Candari from service by letter dated November 15, 2006. Candari appealed his suspension and termination, and an evidentiary hearing was scheduled before a hearing officer.
At the hearing, Candari testified he did not drink any alcohol at lunch, and he believed LAUSD disciplined him differently from the others because a former supervisor, Frank Perez, wanted him fired. Candari testified he believed he was entitled to talk to his union representative before being forced to undergo alcohol or drug testing. During the multiple-day hearing, LAUSD asked Candari a limited number of questions regarding any employment he had sought or obtained following his suspension and termination. LAUSD asked if he was presently working and, if so, where and for how much. Candari stated he worked as a dockworker for one to two eight-hour days per week, at the rate of $20 per hour. He explained he had maintained his card (presumably a union card) as a dockworker even while employed at LAUSD and was picking up that work whenever it was available. He also stated that he had not sought other employment. No other evidence was offered by LAUSD about any other employment, other earnings, or the availability of other carpentry jobs comparable to Candari's position with LAUSD.
The hearing officer issued his findings and recommendations indicating there was insufficient evidence supporting a majority of the charges against Candari. He recommended rescission of Candari's dismissal, a 45-day suspension without pay, and reinstatement to service with an award of back pay and benefits, less a credit for any compensation earned by Candari during the relevant period. LAUSD requested reconsideration of the back-pay issue but did not offer any new evidence to the hearing officer. While reconsideration of the back-pay issue was pending before the hearing officer, the Commission adopted his recommendations to rescind Candari's dismissal, subject to the 45-day suspension without pay, and offered Candari reinstatement.
On February 20, 2008, the hearing officer issued amended findings, maintaining his original recommendation regarding suspension and rescission of the dismissal order but reversing his recommendation on back pay, finding it was unwarranted due to Candari's failure to mitigate. On April 16, 2008, the Commission adopted the hearing officer's amended recommendations denying Candari back pay. Candari filed a petition for a writ of mandate in the superior court. In response, ...