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McSwain v. State Personnel Board1/31/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
John McSwain was terminated from his position as a hydroelectric power operator for the Department of Water Resources (the Department) based on an incident in which he left his duty and secreted himself in the women's restroom and various incidents of discourteous behavior. The termination was upheld by the State Personnel Board (the Board). McSwain appeals from the judgment denying his petition for a writ of mandate to overturn the Board's decision. He contends the Department failed to conduct a fair investigation; the Board's findings were not supported by substantial evidence; the Department failed to follow the Americans with Disabilities Act; and the penalty of dismissal was excessive. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
McSwain had worked for the Department since December 1980; by 1986 he attained the position of hydroelectric plant operator at the San Luis plant. The operator operates the equipment in the plant, such as the pumps, generators, and aqueduct control facilities. Working on a schedule to ensure timely deliveries of water and generation, the operator coordinates with the project operations center in Sacramento. He also coordinates his work with that of plant mechanics, electricians, and technicians. The operator is responsible for switching in both high voltage areas and low voltage areas. He periodically patrols the plant looking for abnormal conditions and corrects such conditions or initiates corrective action. The operator is responsible for answering alarms, taking unit readings, and starting and stopping the units. The position is designated a sensitive position; the operator must be available at all times and has a higher degree of responsibility to respond to emergencies.
The San Luis plant has seven floors. The ground level is the fifth floor and the control room is on the fourth floor. The women's restroom is on the fifth floor; outside the restroom is a lobby with a telephone next to the main entrance. Each shift is staffed with an operator and a senior operator.
On December 3-4, 1992, McSwain was working the night shift, until 7 a.m., with senior operator Kenneth Allen. McSwain left the control room from 1 a.m. until 4 a.m. and again shortly after 5 a.m. He did not tell Allen where he was going. At 6:45 a.m., Thomas Giraldin arrived to relieve Allen; Tamara Compton was already there to relieve McSwain. McSwain could not be found.
While they were looking for McSwain, alarm bells went off; the alarms were due to maintenance. When McSwain did not respond, John Lawrence, the chief operator, asked Giraldin to ring the signal bell for McSwain. The signal bell rang twice. There was still no response from McSwain, so Giraldin asked Edna Sparks, a control technician, to check the women's restroom. Sparks entered the restroom and McSwain rose from a couch. He said, "Guess you caught me," and mentioned he forgot to set his wrist alarm. McSwain looked groggy. Lawrence and James Blood, the plant superintendent, accompanied McSwain into an office to discuss the matter. McSwain said he was tired as he had been working long hours. He did not mention any medication he was taking.
The daily log for that day showed that McSwain had not recorded transformer temperatures or inspected the switchyard.
Several months earlier, Garry Scoles, a senior operator, witnessed two in
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