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Traina v. City of Fontana2/20/2003
Plaintiff and appellant Nitza Traina was an employee of defendant and respondent City of Fontana (the City). She was charged with certain misconduct, given a Skelly hearing, and then terminated. Plaintiff filed an appeal, and the matter was heard by an arbitrator. The arbitrator upheld the termination. Plaintiff then filed a petition for writ of mandate (writ petition), which was denied. She now appeals from the trial court's judgment in favor of the City, denying plaintiff's writ petition.
On appeal, plaintiff's sole contention is that the City wrongfully refused her request for representation at an interview that was held prior to her termination to investigate the charged misconduct. Plaintiff claims she was entitled to representation at the investigatory interview, pursuant to Labor Code section 923. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was a Human Resources Analyst for the City. She was a confidential employee, which meant that she had access to sensitive, personnel-related information. Plaintiff was not a member of any labor union.
On April 3, 1998, an investigatory interview of plaintiff was conducted by plaintiff's supervisor, Human Resources Director Gracie Harmon, and the City's counsel, Brad Neufeld. Plaintiff requested representation by counsel, but was told that she was not entitled to counsel at the interview. Harmon and Neufeld questioned plaintiff concerning two incidents. First, on March 6, 1998, plaintiff told a co-worker that the city manager had had affairs with women in city hall while he was married. Plaintiff continued to talk about other city employees who had engaged in sexual relations with co-workers. Second, later, the same day, plaintiff speculated that an employee may have taken an extended lunch without reporting it on her time sheet. Plaintiff and a co-worker went into the suspected employee's office to look for the time sheet in question. Plaintiff looked through the employee's in-basket, and directed the other co-worker where to look for the time sheet. Later that day, plaintiff instructed another co-worker to look for the time sheet.
At the investigatory interview on April 3, 1998, plaintiff either denied that she had made the alleged statements or acted as alleged, or stated that she did not recall the conversations or her actions on March 6, 1998. Specifically, she stated that she did not recall any conversation about the city manager, about the sexual affairs of other city employees, or about an employee who took an extended lunch. She also denied attempting to obtain the employee's time sheet or witnessing anyone else trying to obtain it.
As a result of her actions and her responses during the investigation, plaintiff was charged with: "`1. iscourteous treatment of the public or other employees. [ ] 2. willful or negligent disobediance of any law, ordinance, City rules, Department regulation, or superior's lawful order. [ ] 3. Conduct unbecoming an officer or employee of the City. [ ] 4 Willful making of a false official statement. [ ] 5. Insubordination.'"
On April 28, 1998, plaintiff and her representative met with City Manager Frank Schuma to discuss her proposed termination. Plaintiff continued to deny virtually all allegations against her, despite statements from other employees that significantly differed from plaintiff's statements. In Schuma's notice of termination, he stated that his decision to terminate plaintiff's employment was based on the following: (1) plaintiff's alleged misconduct; (2) given the "overwhelming amount of credible evidence contradicting [plaintiff]," the city manager noted that plaintiff's persistent denial
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