Bloomberg Law
Jan. 24, 2022, 10:02 PM

Judge’s Firing Upheld for Remarks in Sex-Harassment-Related Case

Patrick Dorrian
Patrick Dorrian

A California administrative judge failed to show he was punished too harshly when he was terminated for comments he made during a workers’ compensation appeal by an employee fired for alleged sexual harassment, a state appeals court ruled Monday.

T. Fitzgerald Smith, formerly on the California Unemployment Insurance Appeals Board, concedes he made the remarks while presiding over Enrique Sandoval’s unemployment benefits hearing, the California Court of Appeal, Fourth District, said in an unpublished ruling. The hearing concerned whether Sandoval was still entitled to benefits even though he was fired for allegedly sexually harassing a co-worker, the court said.

Sandoval’s attorney during the hearing pressed the human resources chief for Sandoval’s former employer about the appearance of the co-worker Sandoval allegedly harassed, the court said. Smith interjected to say the line of questioning was fair and asked if the co-worker “would be considered you know, an eight as opposed to a two?”

Smith also remarked that the co-worker would logically be overweight if she recently had a baby and defined modern romance in crass terms, the court said.

The California State Personnel Board didn’t abuse its discretion in rejecting Smith’s appeal of his own firing, Justice Carol D. Codrington said.

Smith said he should have received a lesser sanction because he hadn’t previously been disciplined and the CSPB had a history of disciplining employees on a progressive basis.

But the cases he cited all concerned state workers in jobs held to a lower level of accountability, Codrington said. Judicial officers and police officers are held to a higher standard, she said.

And Smith not only admitted his transgressions, he also acknowledged that his behavior failed to meet that standard and violated several judicial ethics rules, the court said.

There also was nothing requiring the CSPB to discipline employees progressively, even if an administrative law judge who reviewed Smith’s case recommended that he just be suspended for six months, Codrington said.

The ALJ also found that Smith’s offensive behavior was likely to recur because he didn’t take full responsibility for it, and instead tried to explain it, the court said.

Justices Art W. McKinster and Michael J. Raphael joined the opinion.

Brunick, McElhaney & Kennedy PC represented Smith. The California attorney general’s office represented the state.

The case is Smith v. State Pers. Bd., 2022 BL 22392, Cal. Ct. App., 4th Dist., No. E074300, unpublished 1/24/22.

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