Court Upholds Termination of San Jose Firefighter

A San Jose firefighter who was terminated in 2009, has lost a second appeal to the California Court of Appeals. Grant Seibert was terminated following allegations that he sent sexually suggestive emails to a 16-year old girl who visited the fire station, and for his behavior toward a female colleague.

Seibert’s notice of discipline explained the allegations as follows:

1. On or about and between November 27, 2008 and December 15, 2008, you exchanged emails with a female San Jose resident, during work hours, which became sexual in nature;

2. On or about and between November 27, 2008 and December 15, 2008, you interacted inappropriately during work hours with the same female noted above, who[m] you either knew or should have reasonably known was a minor;

3. About and between March 9, 2009 and April 6, 2009, you inappropriately touched a female coworker;

4. About and between March 9, 2009 and April 6, 2009, you made inappropriate comments to a female coworker;

5. About and between March 9, 2009 and April 6, 2009, you engaged in inappropriate conduct, including but not limited to unwelcome attention and/or leering/staring, towards a female co-worker; and

6. On or about March 18, 2009, June 4, 2009 and July 28, 2009, you were dishonest during an administrative investigation and were not forthcoming with the investigator on several occasions.

Seibert appealed his termination initially to the San Jose Civil Service Commission, who upheld his termination. He then appealed to the Santa Clara County Superior Court, who reversed the termination and ordered the commission to reconsider its decision in light of several findings, including that: “even though the December 15 emails were becoming increasingly full of innuendo and sexualization, if they had been sent to an adult, they would not be actionable violations under the then-existing policies of the City of San Jose” and that the conduct had not been shown to violate “any written City or Fire Department policy.”

That ruling was appealed to the California Court of Appeals back in 2016, and resulted in the entire matter being returned to the Civil Service Commission for reconsideration. That ruling is referred to as Seibert I. Here is a copy.

The Civil Service Commission again upheld the termination of Seibert, the Santa Clara County Superior Court affirmed, and Seibert appealed to the Court of Appeals in what is referred to as Seibert II. In upholding the commission and the trial court in the second round, the Court of Appeals revisited the facts associated with Seibert’s email exchange with the girl, identified as N.C.:

• The December 15, 2008 e-mail exchange, which followed N.C.’s second visit to the fire station and her disclosure by e-mail that she had injured her elbow during the visit, is fully set out in Seibert I.
• Seibert responded in part to that disclosure, “Too bad your [sic] not here, [sic] I would take care of you[.]”
• In an ensuing e-mail he said, “I think i [sic] would have to do a hands on [sic] evaluation.”
• After Seibert asked whether she was using the family computer and N.C. said no, Seibert said, “[S]o as a paramedic, it is my job to ‘asses’ [sic] you and try to make you feel good. . . .  A good ‘hands-on’ assesment [sic] begins at the head, and works down the body examining every inch of you to make sure you are okay . . . of course the body needs to be exposed [sic] that way I can see all injuries.”
• In another e-mail, Seibert said, “I would have to evaluate you to see how healthy you are.”
• In a further e-mail, he said, “I may have to do a very, very thorough hands on [sic] evaluation.” He subsequently said, “I have a lot of equipment I can use to ‘evaluate’ you . . . we should start by taking your temperature with a ‘thermometer’ . . . .”
• In a further e-mail, he indicated that he “would have to look at [her] lips and mouth” and neck and that his exam would “involve exposing [her] chest (for medical purposes only)” and feeling her stomach. Also, he might “need to ‘poke and probe’ in [the hip] area.”
• He “would take [her] temperature for a few minutes” and “move [her] body in different positions to see how flexible [she was].”
• In another e-mail, Seibert said, “[T]he more wet you are, the deeper I can probe to evaluate you,” and “After probing you, and taking your temperature, I may have some ‘medicine’ to give you.”
• In his final e-mail that night, Seibert stated in part, “I can start my evaluation from [sic] you in several different positions, and [I] can finish my evaluation from behind you . . . I like that : ).”
• Apparently, the e-mail exchange stopped when N.C.’s father entered the room, saw the e-mails, and became upset.

The lengthy decision details the law on a variety of pertinent disciplinary topics, including the standard of review for administrative decisions in California, abuse of discretion, res judicata, “The Doctrine of Law of the Case,” hearsay evidence, “sexual harassment” versus “sexually harassing behavior”, progressive discipline, and much more.

The bottom line:

• Even if Seibert’s e-mails of a sexual nature were welcome or invited by N.C., Seibert does not seem to fully appreciate that he barely knew her.
• Avoidance of harassing conduct requires sensitivity to the possibility that conduct based on sex or gender might be regarded as unwelcome and offensive.
• Seibert overlooks the fact that after being reassigned, he engaged in more misconduct (charge Nos. 3-5) toward L.F., a female coworker and firefighter.
• The former fire chief indicated that Seibert’s “pattern of behavior at the training center” reflected “an overall inattention” to the sexual harassment policies and contributed to the decision to terminate Seibert.
• He stated that there was “zero tolerance” for sexual harassment.
• He indicated that it was “too big of a risk to keep [Seibert] as a member of the San Jose Fire Department” given that while Seibert was being investigated for those e-mails, Seibert engaged in inappropriate behavior toward a female coworker.
• Seibert’s aggregate misconduct could properly be considered in deciding his appropriate discipline.
• We do not discern any violation of the Department’s policy on progressive discipline.
• [A]n agency has great latitude to determine the appropriate penalty for misconduct.
• Although the penalty of termination is harsh, this is not an exceptional case in which reasonable minds cannot differ.
• Seibert has not demonstrated that his termination was a manifest abuse of discretion.

Here is a copy of Seibert II: