Endsley Petition

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Patricia Tsubokawa Reeves, SBN 131213

Law Office of PTR
P.O. Box 1407
Davis, CA 95617-1407
(530) 757-8490
Fax (530) 757-8491
ptreeves(a).sbc global. net
JUL 2 9 2014
By.
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L. Gutierrez
Deputy C l e ~
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
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Case No. 34-2014-80001818
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Angelina Endsley,
PETITIONER'S
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Petitioner,
OPENING BRIEF
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State Personnel Board,
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Respondent,
Date:
September 12, 2014
Dept.:
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Time:
9:00 a.m.
Judge:
Honorable Michael P. Kenny
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Petitioner's Opening Brief - 1
Table of Contents
I.
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Introduction
II. Factual Background
III. The Applicable Law
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A. The Merit Principle
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B. Fundamental Vested Right and CCP 1094.5

Right to Due Process
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C. Independent Judgment Standard of Review
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D. Califomia Code of Regulations, title 2, 266 Correction

Of Appointments
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E. Califomia Code of Regulations, title 2, 8 Good Faith Criteria
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IV. SHO's Proposed Decision
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A. First Set of Findings - SHO's MQ Analysis
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1. MQ Analysis for the Special Investigator Classification Education
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2. MQ Analysis for the Special Investigator Classification Experience
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3. MQ Analysis for the FEH Consultant III (Specialist) Experience
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4. MQ Analysis for the FEH Consultant III (Specialist) Education
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5. MQ Analysis for the FEH Administrator I Appointment Experience
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6. Summary of Findings of Fact Unsupported by Evidence
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B. Second Set of Findings - Less Than Good Faith By Appointing

Authority
P e t i t i o n e r ' s Opening B r i e f - 1
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I.
KimFarrell
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2.
Robin Icelow
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3.
Chris Lane Thomas
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4.
Tyra Gilmer
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V. Conclusion
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Table of Authorities
Cases
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1. Board of Re2ents v. Roth (1912) 408 U.S. 564
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2. Duncan v. Department of Personnel Administration (2000)
77 Cal.App.4* 1166
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3. Pacific Lesal Foundation v. Brown (1981) 29 Cal.3d 168
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4. Skellv V. State Personnel Board (198 H 15 Cal.3d 194
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Statutes
1. CCP 1094.5
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2. CCP 1094.5(a)
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3. CCP 1094.5(b)
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4. Govemment Code 19500
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5. Govemment Code 19572
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6. Government Code 19573
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Regulations
1. Califomia Code of Regulations, title 2, 266
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Correction of Appointment
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2. Califomia Code of Regulations, title 2, 8 Good Faith Facts
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3. Califomia Code of Regulations, th. 2, 9
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Patricia Tsubokawa Reeves, SBN 131213

Law Office of PTR
P.O. Box 1407
Davis, CA 95617-1407
(530) 757-8490
Fax (530) 757-8491
ptreeves(a),sbcglobal.net
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
Case No. 34-2014-80001818
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Angelina Endsley,
PETITIONER'S
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OPENING BRIEF
Petitioner,
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vs.
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State Personnel Board,
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Respondent,
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Date:
September 12, 2014
Dept.:
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Time:
9:00 a.m.
Judge:
Honorable Michael P. Kenny
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I. Introduction
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Petitioner, Angelina Endsley,filesthis Opening Brief to support her request for this
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Court to grant her administrative writ of mandamus pursuant to CCP 1094.5 commanding
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Respondent, SPB to set aside it's order to void her promotions to Fair Employment and Housing
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("FEH") Consultant III and FEH Administrator I. Petitioner also requests this Court to
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command SPB to reconsider its fmding that the appointing authority acted in less than good faith
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because this fmding is not supported by the evidence.

II. Factual Background
On August 9,2010, Petitioner, Angelina Endsley began her Califomia state service with the
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Department of Fair Employment and Housing ("DFEH") as a Legal Analyst. This appointment
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is not part of this Writ proceeding. It is her entry level position and the job title she retumed to
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after her demotions. (Administrative Record with its identifying bates number in the lower left
comer, hereinafter "AR, p. 878".)
Her Legal Analyst job description was stated in the DFEH Summary of Responsibilities as
45% Conducts neutral fact-finding investigations into complaints of
discrimination. Analyzes issues with reference to the appropriate interpretation
and application of civil rights laws, rules, and regulations. Meets time frames
based on established guidelines for case investigation and as set forth by statutory
requirement(s). Conducts on-site uivestigations, as warranted. Determines
whether a violation of the law has occurred. Prepares a report pertaining to each
investigation completed in accordance with Departmental procedures/guidelines.
Uses effective communication skills in performing all aspect of the job duties.
Explores resolution and negotiates settlements between complainants and
respondents. Prepares for and participates in formal settlement conferences with
the District Administrator, complainant(s) and respondent(s). Prepares settlement
documents. Maintains case diaries to reflect changes of address, dates of
correspondence and contacts, and the contents of conversations. Interprets and
explains areas of Departmental jurisdiction to prospective complainants and
respondents. Receives complaints either by telephone or in person. Determines
whether complaints should be accepted for investigation or rejected. Analyzes
issues with reference to the appropriate interpretation and application of various
civil rights laws, mles, and regulations. Solicits sensitive information in a tactful
maimer in order to draft complaints. (AR, p.480.)
30% Fimctions as the Public Records Officer for the Division responding to and
processing requests for documents pursuant to the Public Records Act ("PRA"),
including record location and review, redaction of personal information and
segregation of records exempt from disclosure by statute, prior to the production
of documents.
15% Assists ui the preparation of administrative discovery, pleadings, and related
documents. Prepares subpoenas and other papers and arranges for, and monitors
service of process. Gathers factual information and performs routine legal
research to assist in the investigation of administrative complaints. Conduct
research to identify legal business or corporate entity names. Conducts skip
traces to locate parties or wimesses.
5% Preparesfilesfor opening and closing cases and any accompanying
correspondence.
P e t i t i o n e r ' s Opening B r i e f
5% Attends Department meetings. May participate in seminars and interact with

various respondent and community groups. Other duties as assigned. (AR,
p.480-482.)
Petitioner's performance as a probationary Legal Analyst was evaluated by her District
Administrator, Allen Pederson on May 10,2011. He rated all ofher performance categories as
"Outstanding", the highest possible rating. He supported his ratings with a 6 page narrative. He
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reported that in the first months on the job Petitioner conducted 42 investigations and 119
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interviews with a 71% acceptance rate contrasted with the 50% statewide average. He described
some ofher actual cases with the Bureau of Automotive Repair, Bai Dental, Inc., San Joaquin
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Coimty, and Siskiyou Auto Supply, as examples ofher outstanding work. He also identified 4
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cases that settled or 9.5% of the cases she investigated. He noted that she closed 42 cases with
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an average case closure rate of 7 cases per month. He also recognized that she was assigned
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PRA requests and acted as a backup to the PRA Request Coordinator. This included receiving
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and processing the Santa Ana and San Diego District Offices PRAfilesto be stored in the
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Sacramento office. He also discussed her excellent work tmder the categories of skill, intake,
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negotiation skill, production, case management, report writing, knowledge, work habits,
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relationship with people, learning ability, and attitude. (AR, p.489-495.)

On September 20, 2011, Petifioner received her final Report of Performance for
Probationary Employee from her District Administrator, Allen Pederson. He agam rated her
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performance as "Outstanding" in all categories. He attached another 6 page narrative to support

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these very high ratings. He recognized that during this rating period. Petitioner performed
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dilferent job related duties such as working in the Communication Center performing Instant
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Intake Duties, performing regtilar intake duties for the Sacramento District, conducting pre-
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determine settlement attempts, drafting interrogatories, and read the entire Fair Employment and
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Housing Act, the Barclays Code of Regulations, Basic Training Manual, Case Analysis Manual
and the Discovery Manual.
District Administrator Pederson noted that Petitioner assisted the Communication Center
on 40-50+ occasions in addifion to the 60-70+ intakes she was assigned on a regular basis. She
conducted 35 investigations, including the Kaiser Permanente, Sierra Vista Hospital, and
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InterWest Ins. Services cases. She settled 9 cases with no-fault settlements negotiated in the
Bridgestone & Firestone, Round Table Pizza, and Tracy Partner, LLC cases. She closed 56
cases with an increased average case closure rate of 12.25 cases per month. He also wrote about
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her skill, PRA requests, quality of investigations, negotiation skills, production, case
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management, knowledge, work habits, relationship with people, leaming ability, attitude and
report writing. (AR, p.496-502.)
On August 9,2011, Petitioner successfully completed her probationary period and
became a permanent civil servant.
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On September 8, 2011, the State Personnel Board notified DFEH that it granted its
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permission to use the Special Investigator List to appoint to the FEH Consultant series. (AR, p.
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522.) However, SPB required that the ".. .the candidates selectedfromthe Special Investigator
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list must also meet the Minimum Qualifications for Consultant II and/or III depending on the
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vacancy." (AR, p. 522)
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The job description for the FEH Consultant II position is almost identical to the Legal
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Analyst position. All of the FEH Consultant II duties are described exactly like the duties
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described in the 45% section for the Legal Analyst job duty statement, (cf AR, p. 480-482.)
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The Summary of Duties and Responsibilities for the FEH Consultant II position are described as:
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30% Investigations: Conducts neutral fact-finding investigations into complaints

of discrimination. Analyzes issues with reference to the appropriate interpretation
and application of civil rights laws, mles, and regulations. Prepares formal
discovery (e.g., interrogatories, subpoenas), interviews witnesses, reviews and
analyzes documents. Meets timeframesbased on established guidelines for case
investigation and as set forth by statutory requirement(s). Conducts on-site
investigations, as warranted. Determines whether a violation of the law has
occurred. Prepares a report pertaining to each investigation completed in
accordance with the Departmental procedures/guidelines.
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25% Settlements: Explores resolution and negotiates settlements between

complainants and respondents. Prepares for and participates in formal settlement
conferences with the District Administrator, complainant(s) and respondent(s).
Prepares settlement documents.
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20% Case Management: Maintains proper records in compliance with

Departmental procedures. Maintains case diaries to reflect changes of address,
dates of correspondence and contacts, and the content of conversations.
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20% Complaint Intakes: Interprets and explains areas of Departmental

jurisdiction to prospective complainants and respondents. Receives complaints
either by telephone or in person. Determines whether complaints should be
accepted for investigation or rejected. Analyzes issues with reference to the
appropriate interpretation and application of various civil rights laws, mles, and
regulations. Solicits sensitive information in a tactful manner in order to draft
complaints. (AR, p.504.)
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The Minimum Qualifications ("MQs") for the FEH Consultant II were: General experience
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used to qualify for any of the classes in the series: Experience: Must have been in responsible
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capacities involving the development, implementation or practice of equal employment and/or
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fair housing in one or a combination of the following:
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As a representative of an organization engaged in promoting equal opportunity to

protected groups, such as ethnic minorities, women, the physically handicapped, senior
citizens, etc., or
2. In community organization work, social group work, or other comparable experience in
the human relations, industrial relations, or housing industryfields,or
3. As a labor or management representative with substantial responsibility for the promotion
and implementation of fair employment and/or fair housing practices within a trade,
industry or organization.
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The DFEH qualified for type 1 requisite experience.

For a FEH Consultant III, the general experience must be in addition to:
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One year of experience in fhe Califomia state service performing the duties of a Fair
Employment and Housing Consultant IL (Emphasis added; AR, p.514-515.)
Or II
Experience: Four years of the above-described experience. (Experience in the
Califomia state service applied toward this requirement must include at least one
year in a class with a level of responsibility equal to a Fair Employment and
Housing Consultant II.) and
Education: Equivalent to graduation from college. (Additional qualifying
experience may be substituted for the required education on a year-for-year basis.)
(AR,p. 515.)
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The MQs for the Special Investigator list for pattem III were:
Education: Equivalent to completion of two years of college with a major in
criminal justice, law enforcement, criminology, police science, administration of
justice, business, or public administration. (Additional qualifying experience may
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be substituted for the required education on a year-for-year basis.) Applicants
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who are being considered for Special Investigator positions must possess the
educational equivalent to completion of the twelfth grade, and
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Experience: One year of experience in the Califomia state service performing

duties at a level comparable to those of either an Investigator Assistant, Special
Investigator Assistance, or in an investigation assignment in the class of
Management Services, Technician, Range B. (Applicants who have completed
six months of service in the class of either Investigator Assistant, Special
Investigator Assistant, or Management Services Technician, Range B will be
admitted into the examination, but they must satisfactorily complete one year of
experience in the class before they can be considered eligible for appointment.)
(Emphasis added, AR, p.536.)
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Petitioner determined that her experience and education satisfied the MQs for both the
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Special Investigator I and FEH Consultant III appointments. On December 30, 2011, Petitioner
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took the Special Investigator exammation and received a score of 95%. She received Notice that
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her eligibility on the list was for a type Multi-Departmental Open with eligibility for 12 months.
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(AR, p.540.)
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P e t i t i o n e r ' s Opening B r i e f
On January 11, 2012, Petitioner applied for the FEH Consultant III position. (AR, p.
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543.)
Petitioner's eligibility on the Special Investigator list to Tim Muscat, FEH Chief of Enforcement,
On January 17, 2012, Robin Icelow, Associate Personal Analyst ("APA") confirmed
(AR, p. 547.) On Febmary 1,2012, Tyra Gilmer, then Personnel/Labor Relations Officer for
DFEH, confirmed that Petitioner met the MQs for the Special Investigator/Consultant III spec
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and was eligible for appointment. (AR, p. 549.) Mr. Muscat offered the Consultant III position
to Petitioner and she accepted. (AR, p.549.)
On Febmary 2, 2012, Petitioner began her one year probationary period as a FEH
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Consultant III.
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On April 2, 2012, the FEH Consultant III class spec was added to the approved
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experience for the MQs for the Staff Services Manager II 511 B under Pattem II. (AR, p. 568.)
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This was confirmed by Chris Thomas. (AR, p. 567.) Former APA Robin Icelow had moved on
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to be an APA at the Department of Housing and Community Development (AR, p.658.) APA,
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Chris Thomas took her place. (AR, p. 742-743.)

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From May 1,2012 to August 28, 2012, Petitioner worked out-of-class as the District
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Administrator 1. She retumed to her Consultant III position when her four month duty was
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completed. (AR, p. 653-654.)
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On October 30,2012, Petitioner received her first and second Report of Performance for
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Probationary Employee for her appointment as FEH Consultant III from Chief of Enforcement,
Tim Muscat. He rated her "Outstanding" in all categories. He wrote
I am extremely impressed with Angelina's work in the Consultant III Quality
Assurance position. She excels in every capacity of this job. First, she is an
excellent communicator. Whether with DFEH staff or complaining parties,
Angelina has a unique quality of getting to the heart of any dispute. Second,
Angelina is an excellent researcher. She reviews files and locates supporting
documents with tremendous speed. Third, she is a very good writer. I almost
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always ask Angelma to prepare the first draft of our appeal responses. Rarely am
I required to make significant changes to her well written letters. Fourth,
everybody gets along extremely well with Angelina. Her attitudes towards work,
and relationships with a wide variety of diverse people is outstanding. Fifth,
Angelina is extremely well organized, which is an administrative ability that tmly
assists in this position, especially when she is providing requested documents to
HUD and the EEO. Sixth, her work habits are outstanding. Both in terms of
speed and hours committed to the job, I could not ask for a more committed
employee. Finally, Angelina's willingness to serve in an out-of-class assignment
as Acting District Administrator for the Sacramento District Office was tmly
appreciated. Angelina brought a great deal of leadership and stability to that
office at a time when it was very much needed. DFEH is truly fortunate to have
Angelina as part of its team! (AR, p. 5 51)
On December 12, 2012, Petitioner applied for the FEH Administrator I appointment.
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(AR, p.24-27.)
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On Febmary 2, 2013, Petitioner successfully completed her 1 year probationary period

for the FEH Consultant III appointment.
On Febmary 4, 2013, APA Chris Thomas completed her analysis and approved
Petitioner's eligibility for the Administrator I appointment. Chris Thomas notified Monica Rea,
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DFEH Deputy Director of Administration, (AR, p. 474.) that the Petitioner met the MQs for the
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Staff Services Manager II and Administrator I , Fair Employment and Housing Pattem I. (AR,
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p.578.) The MQ for Pattem I was "one year of experience in the Califomia state service
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performing the duties of a Fair Employment and Housing Consultant III (Supervisor) or a Fair
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Employment and Housing Consultant III (Specialist), or two years of experience in the
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Califomia state service performing the duties of a Fair Employment and Housing Consultant II.
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(Emphasis added; AR, p. 579.)
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On Febmary 11, 2013, Petitioner was appointed to the FEH Administrator I position.
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In 2013, SPB's Compliance Review Division conducted an audit of the DFEH's
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personnel practices for the period May 1, 2011 through November 1, 2012. On Jime 27, 2013,
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Kim Farrell replied to an e-mailfromSPB's Alton Ford that Petitioner's appointment to the FEH
Consultant III position may have been "an illegal appointment" because she did not meet the
MQs for the Special Investigator exam. (AR, p. 12-13.) Kim Farrell testified at the hearing that
she started her work at DFEH in April or about 2 months before her June e-mail reply to Alton
Ford. She did not review the compliance documents DFEH tumed over to SPB as part of its
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audit. She only reviewed Petitioner's official personnel file ("OPF") and the recmitmentfileand
noticed that the college transcripts were not in the files. (AR, p.783.)
The Staff Hearing Officer ("SHO"), Richard Silva confirmed that Petitioner's college
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transcripts were in the compliance documents received by SPB. (AR, p. 784.) Kim Farrell
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explamed that she was not the APA assigned to conduct Petitioner's MQ review, she was not
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employed by DFEH when that was done, she could not explain how the transcripts were in the
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compliance documents and not in Petitioner's OPF or recmitment file, and she did not know how
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Angelina was being utilized as a Legal Analyst. (AR, p. 785.)
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Petitioner's college transcriptsfromMTI College (AR, p.595-597);fromSac City

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College and Phoenix University, including her AA Diploma (AR, p.289); and her Bachelor of
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Science in Criminal Justice Administration completed and conferred on 2/2013 (AR, p. 283)
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were considered at the SPB informal hearing before SHO, Richard Silva. (AR, p. 880-885.)
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On October 1, 2013, SPB served Notice that it had received information that the
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appointments of Angelina Endsley to the classification of Consultant III (Specialist) and FEH
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Administrator I may be illegal due to a mistake of law or fact. It informed Angelina Endsley and
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Kim Ferrell (sic) that SPB opened an investigation and could declare the appointments were
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void. (AR,p. 1-3.)
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On November 6,2013, an informal hearing was held before SHO, Richard Silva, Jr. Five
unswom witnesses testified. DFEH Senior Staff Counsel, Phoebe Liu wrote to SHO Silva before
the informal hearing with DFEH's detailed report of its intemal investigation and attached
exhibits that were used at the hearing and considered by the SHO.
(AR, p.467-580.) She also
appeared for DFEH attiiehearing. (AR, p.608-609.)

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On January 23, 2014, SPB issued its Board Resolution and Order in Case No. 13-1216N.
(AR, p.871-896.) SPB adopted thefindingsof fact, determination of issues and Proposed
Decision of the Staff Hearing Officer. The Board found that DFEH unlawfully appointed
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Petitioner to the positions of FEH Consultant III (Specialist) and FEH Administrator I. Further
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that DFEH did not act in good faith in making these appointments and violated the merit
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principle. (AR, p.872.) It directed the SPB's Compliance Review Division to conduct another
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more extensive audit of DFEH personnel practicesfromJanuary 1, 2009 to the date of the Order,
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January 23, 2014. (AR, p. 873.) It ordered the findings of this second audit to be submitted to
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the executive officer so she could determine if any adverse actions should be taken against any
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individual as may be recommended. (AR, p. 873.)
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On March 26, 2014, DFEH's appeal was denied by SPB.
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On April 24, 2012, Petitioner filed this Writ for Administrative Mandamus seeking to
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command the SPB to set aside its order to void her promotions and to reconsider its finding that
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DFEH acted with less than good faith because the facts do not support this finding.
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III. The Applicable Law
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A. The Merit Principle
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In Pacific Leml Foundation v. Brown (1981) 29 Cal.3d 168, the Califomia Supreme
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Court's Justice Tobriner described the historical context for the "merit principle" as it applied to
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Califomia civil service employment. He wrote:

...m 1934, the people adopted Article XXIV of the state Constitution... The ballot
argument stated: "The purpose of this constitutional amendment is to promote
efficiency and economy in state govemment. The sole aim of the act is to prohibit
assignments and promotion in state service, except on the basis of merit, efficiency
and fitness ascertained by competitive examination. Appointments of inefficient
employees for political reasons are thereby prohibited, thus eliminating the 'spoils
system' from state employment. {Id. at 182)
The principle that appointments and promotions in state service will be made solely on the basis
of merit established the 'merit principle" as a matter of constitutional law. {Id. at 183-184.) This
is the source and definition of the "merit principle" that endures today as article VII of the
Califomia Constitution. This is the "merit principle" that SPB found that DFEH violated when it
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appointed Petitioner to the FEH Consultant III and FEH Administrator I positions.
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B. Fundamental Vested Right and CCP 1094.5 Right To Due Process

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In Skellv v. State Personnel Board (1981) 15 Cal.3d 194, Cahfornia Supreme Court held
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The Califomia Act endows state employees who attain permanent status with a
substantially identical property interest [as found by the U.S. Supreme Court in
Board of Resents v. Roth (1972) 408 U.S. 564]. Such employees may not be
dismissed or subjected to other disciplinary measures unless facts exist constituting
'cause' for such discipline as defined in sections 19572 and 19573 [of the
Govemment Code which provides that with] the absence of sufficient cause, the
permanent employee has a statutory right to continued employment free of these
punitive measure. ( 19500.) This statutory right constitutes'a legitimate claim of
entitlement' to a govemment benefit within the meaning of Roth. Therefore, the
state must comply with procedural due process requirements before it may deprive
its permanent employee of this property interest by punitive action. {Id. at 207208.)
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Code of Civil Procedure 1094.5 provides that a writ of administrative mandamus may be
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issued for the purpose of inquiring into the validity of any final administrative order or decision
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made as the result of a proceeding in which by law is required to be given, evidence is required to
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be taken, and discretion in the determination of facts is vested in the inferior tribunal. (CCP
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1094.5(a).)
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The inquiry in such a case shall extend to tiie questions whether the respondent has
proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether thre
was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has
not proceeded in the manner required by law, the order or decision is not supported by the findings,
or the findings are not supported by the evidence. (CCP 1094.5(b).)

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Petitioner is a permanent state employee deprived of 2 promotions through no fault ofher
own. This constitutes a legitimate claim to the entitlement of a govemment benefit to provide hei
with due process to ensure SPB did not exceed its jurisdiction, that she received a fair trial presided
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over by a neutral fact finder, and that SPB did not abuse its discretion when the findings do not
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support the order and the findings are not supported by the facts. (CCP 1094.5.)
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C. Independent Judgment Standard of Review
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In Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4* 1166, the
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Court found that

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Because demotions and layoffs affect an employee's "fundamental vested right" in

employment, a trial court exercises its independent judgment in reviewing an
agency's findings of fact, [citations] Under the mdependent judgment test, the trial
court may weigh the credibility of witnesses in determining whether the findings of
the agency are supported by the weight, or preponderance, of the evidence,
[citations] {Id at 1173-1174.)
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In this case, the SHO made nofindingsof fact regarding the witnesses' credibility and he
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disregarded the witnesses' testimony that did not support his fmdings or contradicted them
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without making a finding that explained why the witness was not credible. This omission makes
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his recommended order appear to be unsupported by the facts and evidence. The SHO
did
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consider some of the documentary evidence, but made findings of fact that were contrary to what
the documents stated. This uneven and inexplicable treatment of the facts do not support the
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SHO'sfindingsto prove he abused his discretion because his findings of fact are not supported
by the evidence.
D. California Code of Regulations, title 2, 266 Correction of Appointments
The Califomia Code of Regulations, titie 2, 266 states that
5
6
7
When the executive officer determines that an appointment is unlawful, the

executive officer shall determme the good faith of the appointing power and the
employee under Section 8 and shall take corrective action up to and including
voiding the appointment, provided that
8
9
10
11
12
(a) No corrective action shall be taken on any appointment which has been in effect
for one year or longer if both the appointing power and the employee acted in
good faith; and
(b) The executive officer determines that the rights of another employee are
significantly endangered by the retention of the appointment in question.
E.
California Code of Regulations, title 2, 8 Good Faith Facts
13
Califomia Code of Regulations, title 2, 8 states that

14
15
16
17
18
19
20
21
22
23
24
(a) In order to make an appointment in "good faith", an appointing power and all
officers or employees to whom an appointing power delegates appointment
authority must:
(1) Intend to observe the spirit and intent of the law; and
(2) Make a reasonable and serious attempt to determme how the law should be
applied; and
(3) Assure that positions are properly classified; and
(4) Assure that appointees have appropriate civil service appropriate eligibility;
and
(5) Intend to employ the appointee in the class, tenure and location to which
appointed under the conditions reflected in the appointment document; and
(6) Make a reasonable and serious attempt to provide the relevant reference
materials, training, and supervision necessary to avoid any mistakes of law
or fact to the persons responsible for the pertinent personnel transactions;
and
(7) Act in a maimer that does not improperly diminish therightsand privileges
of other persons affected by the appointment, including other eligible.
25
In this case, the SHO made the conclusory finding of fact that "DFEH acted in other than
26
27
good faith in the appointment of Endsley to both the FEH Consultant III (Specialist) and FEH
28
Administrator I. Specifically, DFEH's conduct demonstrates a failure to" (AR, p.893) do (1),
(2), (4), (6) and (7) reciting verbatim the 8 factors wdthout any other explanation or reference to
the facts supporting this finding. (AR, p.893.) The SHO does not state how or when DFEH
failed to do good faith factors (1)(2)(4)(6) or (7).
These are the authorities Petitioner contends apply to her facts. She knows the
constitutionally mandated "merit principle" was intended, used, and fulfilled by her promotions
6
7
as proven by her performance evaluations as authorized by Pacific Leml Foundation decision.
She was a permanent civil servant with a vestedftmdamentalrightto due process to contest her
demotions authorized by the Skellv and Duncan decisions. CCP 1094.5 provides her with
10
statutory authority for this Writ of Administrative Mandamus proceeding. The independent
11
12
judgment standard of review applies to find that SPB abused its discretion because the SHO's
13
recommended order andfindingsof facts are not supported by the witaesses' testimony or the
14
documentary evidence considered by the SHO.
15
Lastly CRC 266 applies to correct any mistakes or misunderstandings caused by
16
Petitioner's promotion. More than one year had gone by when Petitioner passed probation on
17
18
Febmary 2, 2013, for her promotion to the FEH Consultant III. Voiding her promotion can only
19
be done if the SHO's finding of fact that DFEH lacked good faith is supported by the facts. In
20
this case, the facts developed at the informal hearing are that a good faith mistake occurred when
21
Petitioner's OPF and recruitment files did not contain her college transcripts, but were in the
22
compliance documents produced to SPB by DHEH as part of its audit. This mistake can be
23
24
25
26
corrected by the proper application of CRC 266.

This filing mistake does notriseto support the SHO's "less than good faitii" finding. If
the writ is granted as to the good faith mling and remanded to the SPB to reconsider its order,
27
Petitioner's promotion would not be void and would be self-correcting pursuant to CRC 266.
28
IV. SHO's Proposed Decision
1
2
SPB adopted the SHO'sfindingsof fact, detennination of issues and Proposed Decision
in Petitioner's Case No. 13-1216N at its January 23, 2014, meeting. (AR, p. 971.) In this
decision SHO Silva made 2 sets of findings of fact. The first set is his MQ analysis based upon
Petitioner's education and experience to find that she was not eligible to take the Special
6
7
Investigators Examination to qualify for her appointments to FEH Consultant 111 and FEH
Administrator I. The second set is his "less than good faithfindings"for the appointing authority
based upon selected witness testimony and disregarding other witness testimony that did not
10
support this finding. A review of the underlying facts shows that the facts do not support these
11
findings so that the findings do not support SHO Silva's decision that the appointing authorities
12
13
exercised "less than good faith". Moreover, the SHO did not make any credibility findings so we
14
do not know why he believed one witness, Chris Thomas, but did not believe Kim Farrell, Robin
15
Icelow, Tyra Gilmer, and Angelina Endsley. Without this finding, the SHO's findings of fact do
16
not support of his decision so that an abuse of discretion pursuant to CCP 1094.5 and the
17
independent judgment standard of review should be found.

18
19
20
21
A.
First Set of Findings - The SHO's MQ Analysis

1.
MQ Analysis for the Special Investigator Classification - Education
The SHO examined the Pattem II MQs for the Special Investigator Classification that
22
Petitioner needed to complete 2 years of college with a major in criminal justice, law
23
24
enforcement, criminology, police science, administration of justice, business, or public
25
administration. (AR, p. 880.) He determined that Petitioner needed 60 units to satisfy the 2
26
years of college requirement. He found only 42 units in her University of Phoenix Criminal
27
Justice program, so her transcript lacked 18 units to satisfy the education MQ.
28
(AR, p. 881.)
This finding of fact was not supported by the evidence or logic. The SHO completely
1
2
disregarded Petitioner's AA degree in paralegal studies from MTI because it "revolves around
the substantive and procedural study of law and not criminal justice." (AR, p.881.) The SHO
apparently did not believe a criminal justice major did not involve the study of law.
This
finding of fact is illogical. The SHO also did not consider the other appropriate majors or classes
6
7
in business administration or public administration that could satisfy this MQ.

The evidence does not support this finding because Petitioner's paralegal MTI transcript
8
9
proves Petitioner earned 105.5 credits for her AA Degree which satisfied the 2 year college
10
requirement. Moreover, the transcript described classes that she completed in 2006 and 2007,
11
12
13
several years before she took the Special Investigator Examination on December 30, 2011 that
applied to the study of criminal law. (AR, p.540.)
14
15
Petitioner's education at MTI fit her Criminal Justice major with classes in the American
Justice System, 4 credits, grade of A; Legal Procedures, 6 credits, grade of A; (AR, p.596.);
16
Paralegalism, Ethics, and Investigation, 3 credits, grade of A-; Criminal Law, 4 credits, grade A-;
17
18
and Advanced Legal Writing Practicum, 4 credits, grade of B+. (AR, p.595.) These classes gave
19
Petitioner 21 additional college credits that satisfied the SHO's MQ educational analysis to find
20
she qualified for the education component ofthe Special Investigator examination. The MTI
21
college transcript does not support the SHO's finding that her AA degree in her paralegal course
22
of study was disqualified. His decision to ignore this evidence and only use the transcript from
23
24
the University of Phoenix is proof that he prejudicially abused his discretion in violation of CCP
25
1094.5(b) and (c) because this finding is not supported by the evidence.
26
///
27
///
28
2. MQ Analysis for the Special Investigator Classification - Experience
SHO Silva next analyzed the experience MQ for the Special Investigator Examination.
He conceded that Petitioner's experience as a Legal Analyst was similar to the FEH Consultant
II position and comparable to the duties for the Special Investigator Assistant to satisfy the MQ.
However he reduced her credit by 45% because the Legal Analyst Duty Statement attributed that
6
7
percentage to her investigative work. The SHO discounted her 4 years, 3 months, and 22 days of
paralegal experience in state service and the private sector by 45%. This left her with only 8
months and 1/3 of one day of qualifying experience. The SHO then made the finding that
10
Petitioner's experience failed to meet the MQs for entrance into the Special Investigator
11
examination by 3 months, 29 and 2/3 days. (AR, p.883.)

12
13
14
15
This analysis does not take into consideration Petitioner's actual experience documented
by her 3 exemplary Report of Perfomiance for Probationary Employee which described the work
she actually performed. (AR, p.489-502; AR, p.551.) This evidence does not support the SHO's
16
finding that only 45% ofher work experience should have been counted. This evidence proves
17
18
that Petitioner's work production was quantified with actual cases opened, negotiated, settled and
19
closed at well above the 45% job performance experience acknowledged by the SHO.
20
21
Petitioner's actual work perfomiance was consistent with the work she was applying for
as a FEH Consultant III and Administrator 1. She was the human equivalent to the constitutional
22
"merit principle" for a civil servant employee that was efficient,fit,economical, and not
23
24
politically part of a "spoils system." The SHO's finding that Petitioner should only be credited
25
for 45% ofher work contradicts the documents, the facts and the appraisals ofher supervisors
26
that were percipient witnesses to Petitioner's actual job performance. The SHO's 45% analysis
27
28
1
2
is an egregious abuse of discretion that is contradicted by the facts and does not support a finding
that Petitioner's admittance to the Special Investigator's examination was unlawfiil.
2.
MQ Analysis for the FEH Consultant III (Specialist) - Experience
Pattem I for the FEH Consultant III (Specialist) Classification experience MQ states in
plain language that it requires "one year of experience in the Califomia state service performing
6
7
the duties of a Fair Employment and Housing Consultant II." The SHO tersely stated that "At
the time of application, Endsley had never been appointed to the classification of FEH
Consultation (sic) II. Therefore, Endsley does not meet the criteria under pattem 1." (AR,
10
p.883.) This is a misreading of the MQ.
11
At the time Petitioner applied for the FEH Consultant 111 position on January 11, 2011,
12
13
the Duty Statements for Legal Analyst and FEH Consultant II were substantially identical for
14
100% of the job duties. If Petitioner was performing the Legal Analyst position, she was also
15
perfomiing the FEH Consultant II position. DFEH APA Robin Icelow recognized the exact
16
requirement of this MQ and confirmed that Petitioner met the MQs to be eligible on the Special
17
18
Investigator list to Tim Muscat, Chief of Enforcement. (AR, p.547.) Ms. Icelow testified at the
19
infonnal hearing that she did a lot of research to complete the MQ review before she confirmed
20
eligibility. She viewed "of a" language differently from "comparable to" in the MQ. (AR, p.
21
672.)
22
In this very rare instance the duty statements were identical so "performing the duties of
23
24
a" FEH Consultant II for a Legal Analyst should have been considered, but this was not done by
25
SHO Silva which caused great prejudice to Petitioner. This is another example of the SHO's
26
abuse of discretion by making a finding of fact that is not supported by the evidence. When he
27
eliminated the Pattem I MQ so quickly, he disregarded the evidence of the 2 identical job duty
28
Petitioner's Opening Brief - H
Statements, the 3 performance evaluations by Petitioner's District Administrator and Chief of
Enforcement, the testimony of the APA that actually did the MQ analysis and came to an
opposition conclusion, and the actual language of the
MQ.
The APA that did the initial MQ analysis was Robin Icelow. She testified at the hearing
that she carefully and diligently adhered to the plain language of the MQ and came to the
6
7
8
9
opposite conclusion than the SHO.
(AR, p.663, 664, 672.)
The SHO used his 45% formula for his finding of fact that Petitioner did not and could
not satisfy the experience component for the FEH Consultant III MQ.
He also used his same
10
finding that Petitioner's paralegal outside experience was "non-qualifying". (AR, p.884.) He
11
12
made the same finding of fact that her "qualifying" experience was 3 months and 29 2/3 short
13
based upon his 45% formula. These findings prove that the duplicative and overlapping duty
14
statements for the Legal Analyst position assigned to Petitioner and the FEH Consultant II duty
15
statement do not support the SHO's findings of fact. These 2 important pieces of evidence, the
16
identical duty statements for Legal Analyst and Consultant 11, should have been considered, or at
17
18
the very least distinguished by the SHO.
Since they were not, this evidence does not support the
19
SHO'sfindingsfor fact that Petitioner did not satisfy the MQs for the FEH Consultant III
20
promotion to make them unlawful.
21
3. MQ Analysis for FEH Consultant III (Specialist) - Education
22
To satisfy the education MQ, SHO Silva made a finding of fact that Petitioner "would
23
24
need 8 years of work experience perfomiing duties equal to that of a FEH Consultant II with at
25
least one year of experience in California state service in a class with a level of responsibility
26
equal to a FEH Consultant 11." (AR, p. 885.) He used his 45% formula and his view that
27
Petitioner's private sector paralegal work was non-qualifying for a finding of fact that Petitioner
28
1
2
did not meet the MQ education requirement under pattem II based upon on the year-for-year
basis substitution. (AR, p. 885.)
3
4
This finding is not supported by the facts because the identical duty statements for the
Legal Analyst and FEH Consultant 11 position were not taken into consideration by the SHO.
If
this evidence had been taken into consideration, as it was by the APA Robin Icelow assigned to
6
7
do the MQ analysis for Pethioner, she would have qualified under pattem I. The SHO's opposite
conclusion is not supported by the evidence and does not support his decision that Petitioner's
promotion to FEH Consultant III was unlawful. This is another example ofthe SHO's abuse of
10
discretion to justify the granting of Petitioner's Writ.
11
4. MQ Analysis for FEH Administrator I Appointment - Experience
12
The SHO finding of fact for this analysis is based upon rule that if qualifying experience
13
14
15
is gained as a result of an unlawful appointment, it cannot be used to satisfy the MQs to be

eligible for a promotion. (AR, p.887.) SHO Silva made another finding of fact that "Endsley
16
does not meet the MQs as asserted in pattern III" fbr the FEH Administer 1 appointment. (AR, p.
17
18
887.)
19
least one of those years in the state service performing the duties of a class with a level of
20
responsibility, not less than that of SSM 1." (AR, p. 889.) Based upon this analysis the SHO
21
He also reiterated that Petitioner "would need 8 years of applicable experience with at
found that Petitioner did not satisfy the MQs for qualifying experience so her promotion to the
22
FEH Administer I appointment was unlawful.

23
24
The evidence supports a finding that Petitioner met the MQs for her first promotion to the
25
FEH Consultant III poshion. If this promotion was lawful, the second promotion to FEH
26
Administer 1 would also be lawful because the MQs it would be qualifying experience.
27
28
5. Summary of Findings of Fact Unsupported By Evidence
1
2
3
4
In sum, the SHO used basically the same 4 arguments to find that Petitioner's promotions
were unlawful because she did not meet the MQs.
1.
They were:
Petitioner's MTI Paralegal AA degree did not satisfy the 2 year college education
requirement because she was 18 credits short in her criminal justice program at the
6
7
time she applied for the Special Investigator exam based only upon her University of
Phoenix transcript. This finding of fact is unsupported by the facts in evidence
because her MTI transcript proved that Petitioner had 105.5 credits in 2007 which
10
was more than the 60 credits she needed when she applied for the Special Investigator
11
exam on December 30, 2011.
The evidence also proved that Petitioner's MTI college
12
13
transcript described 21 credits that applied to her criminal justice major so the SHO's
14
finding of fact that she was short 18 units to satisfy the MQ for education was not
15
supported by the evidence.
16
2. Petitioner's work experience as a Legal Analyst should be discounted to 45% because

17
18
that was the percentage allocated to investigations on her duty statement. This
19
analysis reduced Petitioner's work experience to only 8 months so she failed to
20
satisfy the 1 year work experience by 4 months. This finding of fact is not supported
21
by the evidence admitted at the hearing. The duty statements for Legal Analyst and
22
FEH Consultant II described the same duties in almost identical language with
23
24
different percentages allocated to the same list of duties. The SHO did not
25
acknowledge this fact to Petitioner's prejudice. He also did not consider the 3
26
performance evaluations by Petitioner's District Administrator and Chief of
27
Enforcement that documented the work she actually perfonned. This documentation
28
proved that Petitioner perfonned the duties of a FEH Consultant II the entire time she
worked as a Legal Analyst for more than one year. This evidence does not support
the SHO's findings of fact that Plaintiffs MQ for experience was not met.
3. Petitioner needed 8 years of work experience in a comparable position and at least 1
year in a FEH Consultant II position to gain the necessary work experience to be

6
7
eligible for the FEH Consultant III position. The SHO provides no evidence or
explanation for this finding of fact. He does not explain how he arrived at this
mathematical calculation for the 8 year requirement nor is it apparent by reviewing
10
the applicable evidence. This finding of fact ignores the easy pattem 1 MQ that
11
12
13
14
15
Petitioner met with her experience in the FEH Consultant III position which she
perfomied for over one year at the time SPB demoted her.
4. Finally, the SHO invokes Califomia Code of Regulations, tit. 2, 9 to disqualify any
experience gained by an unlawful appointment to satisfy a MQ. He made a finding
16
of fact that the unlawful appointment to the FEH Consultant III position made it
17
18
impossible fbr Petitioner to satisfy the MQs for the FEH Administrator 1 appointment
19
so it was unlawfiil. (AR, p.887.)
20
21
B. Second Set of Findings - Less Than Good Faith By Appointing Authority

The SHO used selective witness testimony to make findings of fact that DFEH used less
22
than good faith in promoting Petitioner so that the violated the "merit principle" for civil service
23
24
employment. This finding is not supported by the witness testimony.
25
Five (5) unswom witnesses testified at the infomial hearing. The SHO used the
26
testimony of only 3 witnesses to support his finding of "less than good faith". From the
27
28
1
2
3
4
testimony of 3 witnesses, the SHO made critical thefindingsof fact that is not supported by the
transcript of their testimony.
1. Kim Farrell
Kim Farrell's reply e-mail to SBP's Alton Ford triggered this investigation. Her
employment as the Persoimel Officer for DFEH began in April of 2013.
She did not work at
6
7
DFEH when Petitioner's promotions were processed. She did not participate in any discussions
or decisions about Petitioner's personnel matters. She did not work on any tasks associated with
the SPB's audit of DFEH's persomiel practices before she replied to Alton Ford's e-mail. (AR,
10
p.778-789.) She testified that the reason she speculated that Petitioner may not have met the
11
12
MQs for her promotions was because when she looked into her OPF and recruitment package.
13
Petitioner's education transcripts were not in the files. (AR, p.781) She browsed Petitioner's
14
personnel files and answered the e-mail. (AR, p.782.)
15
The SHO confirmed that Petitioner's college transcripts were in the compliance
16
17
documents produced by DFEH to SPB as part of the audit it was conducting. (AR., p.781.) Ms.
18
Farrell could not answer the SHO's questions about how the college transcripts were produced to
19
SPB, but were not in Petitioner's OPF or recruitment package. (AR, p.783.)
20
The SHO's finding of fact for Kim Farrell's testimony is "Ferrell (sic) testified that based
21
upon information currently available, Endsley did not meet the MQs for appointment to the FEH
22
23
Consultant 111 (Specialist) classification utilizing the Special Investigator list." (AR, p.892.)
24
What Kim Farrell said was "Well, when 1 look on paper, when I'm just looking at paper because
25
I wasn't here and 1 don't know what transpired. 1 didn't know how Angelina was being utilized
26
as a legal analyst. When 1 look on paper, it appears to be that way to me because 1 don't know
27
28
what was going on during that time." The SHO pressed her for more by asking her "When you
state what was going on or that it appears to be, are you saying that it still appears on a paper
1
2
review that she doesn't meet the qualifications? A. Well, yes, because the documents (college
transcripts) that I would require to be able to make a determination were not there." (AR, p.
785.)
This interchange does not support a finding of less than good faith pursuant to the
6
7
inclusive criteria found at CRC 8 which is required to make this finding. This Q & A with
Kim Farrell proves that the missing college transcripts were not lost, but were found in the
DFEH compliance production of documents to SPB. These documents were used extensively by
10
the SHO to make his MQ findings of fact that Petitioner was 18 credits short of qualifying
11
because he used the University of Phoenix transcript for this finding and did not use the MTI
12
13
transcripts for the validation of sufficient credits or course work, but did use them to disqualify
14
Petitioner's paralegal classes.
15
This evidence does not prove that Kim Farrell acted with less than good faith. In other
16
words, this proof does not prove Ms. Farrell did not intend to observe the spirit and intent of the
17
18
law, that she did not make a reasonable and serious attempt to determine how the law should be
19
applied, that she was not trying to assure that appointees had appropriate eligibility, that she did
20
not make a reasonable and serious attempt to avoid mistakes or acted in a maimer that
21
diminished the rights of people affected by the appointment. This evidence proved that filing
22
mistakes are sometime made, but in this case the docunients were found and used as they should
23
24
25
26
27
be. This evidence does not support afindingof "less than good faith".
2. Robin Icelow
The SHO's finding of fact about Robin Icelow's testimony is "After reviewing
documents presented by the DFEH at the hearing, specifically Endsley's 678, and the Duty
28
Statements for Legal Analyst and FEH Consultant II, Icelow further testified that Endsley did not
appear to meet the MQs for FEH Consultant 111 (Specialist)." (AR, p. 892.) This finding of fact
is not supported by Ms. Icelow's testimony. She testified that 'A. To really make a straight
determination right now in front of you guys in five minutes or less, it's not going to happen. Q.
Right. A. I'm going to have to do a lot more research and work. And so, therefore, I can't say
6
7
8
9
definitively that this employee would have qualified under this pattern for the MQ right now."
(AR, p.674.)
Ms. Icelow's analysis and MQ work product are also part of the record so that this
10
evidence does not support the SHO's finding that she proved that she did not act in good faith
11
12
when she did her job.
None ofher conduct, analysis or docuinents, like her e-mail confirming
13
Petitioner's eligibility forthe Special Investigator exam sent to Tim Muscat on January 17, 2012
14
(AR, p. 547) supports the SHO's finding of fact that she testified at the hearing that "Endsley did
15
not appear to meet the MQs for the FEH Consultant 111 (Specialist)." This misrepresentation of
16
Ms. Icelow's testimony is an abuse of discretion. The SHO misstates her testimony so that it
17
18
does not support the SHO's finding of fact that she used "less than good faith" and it does not
19
support the decision that Petitioner's promotions were unlawful or the product of "less than good
20
faith" on the part of Robin Icelow.
21
3.
Chris Lane Thomas
22
The SHO used Chris Thomas' testimony about a "contentious discussion" involving
23
24
herself, Robin Icelow, and Tyra Gilmer about Petitioner's promotions to support his finding that
25
DFEH used less than good faith in Petitioner's promotions. Chris Thomas testified that she was
26
not assigned to analyze Petitioner's MQs or her eligibility based upon a review ofher college
27
transcripts. She just had her opinion that the appointment to FEH Consultant III was illegal
28
because Petitioner had not provided her college transcripts. (AR, p.744.) She testified that Tyra
Gilmer had brought this omission to Monica Rea's attention and she responded that "all she had
to do was wait a whole year, once Angelina was in the position for a year and it would be
forgiven." Thomas also testified that she was the assigned APA who analyzed Petitioner's MQs
for the FEH Administrator I promotion and she detemiined Petitioner was eligible. She also
6
7
testified that she did not pursue her challenge to Petitioner's FEH Consultant III promotion
because she felt rebuffed by Tyra Gilmer, her supervisor and did not take her concems to Monica
Rea. (AR, p.893.) Apparently Chris Thomas had a bias against Monica Rea and she did not
10
want to talk about her relationship with Monica. (AR, p.762.)
11
12
Chris Thomas' testimony about her opinion and the fact that she did not work on
13
Petitioner's MQs does not support the SHO'sfindingthat DFEH used "less than good faith" in
14
Petitioner's promotions. Her actual approval of Petitioner's eligibility for the FEH
15
Administrator I MQs also contradicts her "opinion" that Petitioner's FEH Consultant 111
16
promotion was unlawfiil. The SHO did not disclose any other evidence that reconciled this
17
18
19
20
21
contradiction and did not make any credibility finding to demonstrate why he believed this
witness, but not the other 4 witnesses that contradicted hisfindingsof fact and decision.
4. Tyra Gilmer
The SHO did not include Tyra Gilmer's testimony in his finding of fact that DFEH acted
22
with "less than good faith" in making the appointments for Petitioner. What the SHO did not
23
24
report is that Tyra Gilmer did not corroborate Chris Thomas testimony about the statement
25
attributed to Monica Rea about waiting a year to correct an illegal hire. (AR, p.770.)
26
27
She also testified that Chris Thomas was not assigned to work on Petitioner's MQs so she
had not looked or analyzed the actual file or application. But she did confimied that Chris
28
Thomas expressed her opinion about Petitioner's appointment to FEH Consultant III. (AR, p.
737.)
Ms. Gilmer also testified that if Petitioner was performing Consultant 11 duties as a Legal
Analyst that would qualify her to take the FEH Consultant III exam, the Special Investigator
exam, and the staff services manager exam. (AR, p.726.) Tyra Gilmer also testified that the
duty statements were written by the managers (AR, p.724.) and the duties were evolving. (AR,
p. 728.) Her testimony directly contradicted the SHO'sfindingsof fact that Petitioner's
9
10
experience perfomiing the same duties as a FEH Consultant II did not qualify her to take the
FEH Consultant III exam.
11
Tyra Gilmer's testimony also directiy refuted the SHO's finding of fact that DFEH acted
12
13
with less than good faith in resolving the identical duty statements for Legal Analysts and Legal
14
Consultant lis. She testified that DFEH acted in good faith in their determination of Petitioner's
15
MQs.
(AR, p. 714.) She testified that she talked to her supervisor, Monica Rea and they went
16
with their interpretation of the fact that she met the MQs or she met it by the work she was
17
18
19
20
21
doing. (AR., p.729.)

SHO Silva asked Tyra Gilmer if she felt any undue pressure or influence to make her
come to that decision. She answered "no". (AR, p. 730.) SHO excused Tyra Gilmer after her
initial testimony and then called her back after Chris Thomasfinishedher testimony. He asked
22
her again ifshe was influenced or directed by Ms. Rea to find the MQs were appropriate and
23
24
ignore the possibility of an illegal hire? Tyra Gilmer answered "No".
25
her again "There was no burden or pressure brought to bear on you to find the qualifications so
26
that they could make their hire? No. No."
(AR., p. 776.)
27
28
(AR, p. 776.) He asked
Tyra Gilmer's testimony does not support SHO Silva's finding of fact that DFEH was
guilty of acting with less than good faith when it appointed Petitioner to the FEH Consultant 111
position and the FEH Administrator 1 position. SHO made no finding of fact about any of the
witnesses' testimony, except Petitioner, Angelina Endsley. He found her testimony to be
credible and made a finding of fact that she acted in good faith in accepting her promotions.
(AR, p.894.)
It is important to note that the SHO has no testimony from the decision makers at DFEH
to prove that they acted with "less than good faith". Monica Rea, Nelson Chan, Allen Pederson,
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or Tim Muscat did not testify. The SHO did not have any evidence that Petitioner was
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inefficient, unfit, or had any political ties that would make her promotion part of the "spoils
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system". This evidence would prove DFEH violated the "merit principle" for state civil service
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and in its absence this violation cannot be proven. The "less than good faith" finding is the only
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impediment to applying the correction provided by CRC 266 to command SPB to set aside it
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decision to void Petitioner's promotions and grant this Writ. The evidence does not support the
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SHO's findings of fact and these findings of fact do not support the SPB's decision. These facts
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support a finding that the SPB proceeded in excess of its statutory jurisdiction, did not provide a
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fair trial by calling the right witnesses, and prejudicially abused its discretion because it order is
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not supported by the findings and the findings are not support by the evidence pursuant to CCP
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1094.5.
V. Conclusion
Based upon the foregoing points and authorities. Petitioner respectfully requests this
Court to grant her writ of administrative mandamus to command SPB to set aside its order to
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void her promotions to FEH Consultant III and FEH Administrator 1. Petitioner also requests the
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Court to command SPB to reconsider its finding that the appointing authority acted with less that
good faith because the SHO's findings of fact based upon the witnesses' testimony do not
support this decision.
Dated: July 29, 2014
Patricia Tsubokawa Reeves

Attomey for Petitioner, Angelina Endsley
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Proof of Service
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I am employed in the County of Yolo, State of Califomia. I am over eighteen (18) years
of age and not a party to the within entitied action. My business address is P.O. Box 1407,
Davis, CA 95617-1407. On this date 1 personally served the following documents:

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PETITIONER'S OPENING BRIEF
ADMINISTRATIVE RECORD IN SUPPORT OF PETITIONER'S WRIT OF
ADMINISTRTIVE MANDATE
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VOLUME 1
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VOLUME 2
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To:
Alvin Gittisriboongul
Chief Counsel
Chian He
Senior Staff Counsel
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Califomia State Personnel Board

801 Capitol Mall
Sacramento, CA 95814
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I declare under the penalty of perjury under the laws of the State of California, that the
foregoing facts are true and correct. Executed this 29"^ day of July, 2014 at Davis, CA.
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Patricia Tsubokawa Reeves
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Endsley Petition

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Endsley Petition

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1

Patricia Tsubokawa Reeves, SBN 131213

SUPERIOR COURT OF THE STATE OF CALIFORNIA

Case No. 34-2014-80001818

State Personnel Board,

September 12, 2014

Honorable Michael P. Kenny

Petitioner's Opening Brief - 1

II. Factual Background

III. The Applicable Law

A. The Merit Principle

B. Fundamental Vested Right and CCP 1094.5

C. Independent Judgment Standard of Review

D. Califomia Code of Regulations, title 2, 266 Correction

E. Califomia Code of Regulations, title 2, 8 Good Faith Criteria

IV. SHO's Proposed Decision

A. First Set of Findings - SHO's MQ Analysis

1. MQ Analysis for the Special Investigator Classification Education

2. MQ Analysis for the Special Investigator Classification Experience

3. MQ Analysis for the FEH Consultant III (Specialist) Experience

4. MQ Analysis for the FEH Consultant III (Specialist) Education

5. MQ Analysis for the FEH Administrator I Appointment Experience

6. Summary of Findings of Fact Unsupported by Evidence

B. Second Set of Findings - Less Than Good Faith By Appointing

Chris Lane Thomas

1. Board of Re2ents v. Roth (1912) 408 U.S. 564

2. Duncan v. Department of Personnel Administration (2000)

3. Pacific Lesal Foundation v. Brown (1981) 29 Cal.3d 168

4. Skellv V. State Personnel Board (198 H 15 Cal.3d 194

4. Govemment Code 19500

5. Govemment Code 19572

6. Government Code 19573

2. Califomia Code of Regulations, title 2, 8 Good Faith Facts

3. Califomia Code of Regulations, th. 2, 9

Patricia Tsubokawa Reeves, SBN 131213

SUPERIOR COURT OF THE STATE OF CALIFORNIA

Case No. 34-2014-80001818

State Personnel Board,

September 12, 2014

Honorable Michael P. Kenny

because this fmding is not supported by the evidence.

II. Factual Background

5% Attends Department meetings. May participate in seminars and interact with

Petitioner's performance as a probationary Legal Analyst was evaluated by her District

relationship with people, learning ability, and attitude. (AR, p.489-495.)

performance as "Outstanding" in all categories. He attached another 6 page narrative to support

vacancy." (AR, p. 522)

30% Investigations: Conducts neutral fact-finding investigations into complaints

25% Settlements: Explores resolution and negotiates settlements between

20% Case Management: Maintains proper records in compliance with

20% Complaint Intakes: Interprets and explains areas of Departmental

capacities involving the development, implementation or practice of equal employment and/or

fair housing in one or a combination of the following:

As a representative of an organization engaged in promoting equal opportunity to

The DFEH qualified for type 1 requisite experience.

be substituted for the required education on a year-for-year basis.) Applicants

Experience: One year of experience in the Califomia state service performing

Chris Thomas took her place. (AR, p. 742-743.)

completed. (AR, p. 653-654.)

On Febmary 2, 2013, Petitioner successfully completed her 1 year probationary period

(Emphasis added; AR, p. 579.)

In 2013, SPB's Compliance Review Division conducted an audit of the DFEH's

Angelina was being utilized as a Legal Analyst. (AR, p. 785.)

Petitioner's college transcriptsfromMTI College (AR, p.595-597);fromSac City