Appeal court says city of Sacramento unfairly fired tree trimmer

Contrary to the old adage, you can fight City Hall. It’s just not quick and easy.

Consider the experience of Victor Castro, a tree maintenance worker for the city of Sacramento who has been fighting his dismissal for seven years.

Last week, Castro won a round when an appellate court, declaring that the city is misinterpreting its own policy on violence in the workplace, ruled that an unfair process led to his firing. He now awaits the city’s decision on whether it will try to continue the battle in the California Supreme Court.

Castro was fired in January 2007 for allegedly attacking his supervisor, Jackie Santoyo, the previous October because, without consulting him, she replaced the other member of his two-person team with a woman returning to work after an injury.

In 2008, an arbitrator found that Castro, a 17-year employee, “did not have the right to lay his hand on his supervisor, and in doing that he was wrong, but I cannot find that his intent was to violently attack (Santoyo).”

Later that year, however, the city’s Civil Service Board refused to take Castro’s intent into consideration when it rejected the arbitrator’s proposed 30-day suspension without pay and accepted termination as appropriate.

“We conclude the board abused its discretion by not considering mitigating factors, such as the intent of Castro when the assault occurred, in determining the appropriate discipline,” a three-justice panel of the 3rd District Court of Appeal ruled last week.

In a 22-page unpublished opinion, the panel remanded the matter to the Civil Service Board for reconsideration. The justices concluded that the board’s view that the arbitrator was wrong to consider Castro’s intent “is undermined by the policy itself.”

The unanimous opinion was authored by Associate Justice Andrea Lynn Hoch. She was joined by Acting Presiding Justice Cole Blease and Associate Justice George Nicholson.

Castro’s attorney, Steven Kaiser, said in a telephone interview he has been practicing employment and labor law for more than 30 years, and he has never known of a public entity pursuing a dispute involving the termination of a lower level employee so aggressively over such a long period of time.

“I have never seen anything like this,” Kaiser said. “The city has been so obstreperous. It’s very, very sad. They have really done some damage to my client, and that’s not OK.”

In a telephone interview, Castro, 51, said he believes city officials “can’t accept the fact they erred. I have heard they will fight you to the bitter end and hope you will go away. It’s a waste of taxpayers’ money.”

He was especially critical of the proceeding before the Civil Service Board.

“I felt I was being railroaded,” he said. “The whole objective was to push me out the door. They just went through the formality. They behaved like a lynch mob that day.

“This has affected my whole family,” he added. “We are the ones who have had to do without for seven years.

“I just want to be vindicated.”

Castro said that, after long periods of unemployment, he now has a permanent job as a truck driver for Lowe’s Home Improvement.

Spokeswoman Amy Williams declined to comment on behalf of the city.

Supervising Deputy City Attorney Brett Witter said no decision has been made on whether to seek review at the state Supreme Court.

Santoyo, 52, who still works for the city, could not be reached.

According to the appellate opinion, she recalls that Castro entered her office, “came up on her left side and grabbed her very hard at her neck and said, ‘What the f---?’ ”

He departed the office, returned 20 minutes later, and Santoyo assured him his new partner would be able to do the work. At this point, Castro seemed “not upset, but he was like bummed.”

Another tree maintenance worker in the office essentially confirmed Santoyo’s version.

Castro’s version, as reflected in the appellate opinion, is that he slapped the back of Santoyo’s chair and asked why she replaced his partner. As he was reaching toward Santoyo, “she jerked back into me and I made contact with her shoulder or whatever. I can’t be exact, because it was literally like a two-second incident. She had moved back into me.”

He said in the interview, “I did not grab her and I did not use profanity and I did not mean to harm her.”

In the days following the incident Santoyo said she was “OK,” and she and Castro continued their usual friendly interaction, bantering about a football game and agreeing to share notes in preparing for a horticulture test. She later explained she did not immediately report the incident because she believed “the injury would resolve itself.”

But, seven days after the incident Santoyo decided to see a physician because the pain “kept getting worse.” She went to her boss and described what had happened.

Castro was placed on leave and the city initiated an investigation. After an administrative hearing, he was fired for violating the city’s workplace violence policy.

“I was shocked,” said Castro in the interview. “I believe the city must have put pressure on her. We were friends, even during that week afterward.”

Since his termination, the matter has found its way through four levels of review:

• The arbitrator concluded Castro “was not discharged for just cause.”

• The Civil Service Board rebuffed that conclusion and found “good cause for termination.”

• Sacramento Superior Court Judge Michael P. Kenny ruled in 2011 the board’s decision amounted to an abuse of discretion, explaining that its rejection of the arbitrator’s recommended punishment “is premised on an erroneous interpretation of the city’s workplace violence policy as being one of ‘zero tolerance.’ ” The policy provides for progressive discipline up to and including termination, “thereby allowing for the consideration of mitigating factors, such as the intent of the allegedly offending employee.”

• The 3rd District adopted Kenny’s reasoning and affirmed his decision.