 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
McSwain v. State Personnel Board1/31/2002
cidents involving McSwain. In the pants-dropping incident, Scoles was in the control room while McSwain was at a cleaning station. Scoles heard a tap on the large window and turned to see McSwain waving. Scoles waved and when he looked again he saw McSwain "had his genitals pressed against the window" in the form of a joke. McSwain laughed. McSwain later told Lawrence about the incident.
Another time Scoles teased McSwain about his negative attitude, saying he had not had any lately. In response, McSwain mooned Scoles and another employee. Scoles told McSwain it was the "scariest" thing he ever saw.
A few days after the restroom incident, McSwain called to say he would be late for work. When he arrived, he had a bloody toenail and asked to go to the hospital to have it taken care of. McSwain got a doctor's note that he would be off work for one week. Someone called Lawrence and told him McSwain had reported as a volunteer firefighter while off work. Lawrence confirmed this with the fire chief, called McSwain's doctor, and McSwain was released to return to work. Lawrence told McSwain to give him everything about the toenail; in addition to his excuse and doctor's certificate, McSwain sent him the bloody toenail wrapped in gauze.
On several occasions, McSwain made sexually explicit remarks about Blood's wife, who also worked at the Department. He told Scoles several times he had "fucked" her before she married Blood. He told Allen that "when he sucked on her breasts she creamed her jeans and how she soaked the front of her pants, she liked to do it doggy-style." Allen also overheard a phone conversation in which McSwain said he had had sex with Blood's wife and would be willing to meet her in a motel to do it again. After he was served with the notice of adverse action, McSwain told Compton it was personal between him and Blood because he "was fucking" Blood's wife before Blood dated her.
In January 1993, McSwain was served with a notice of adverse action, informing him he was dismissed from his position effective January 29, 1993, for inexcusable neglect of duty and willful disobedience (Gov. Code, § 19572, subds. (d) and (o)), based on his sleeping in the women's restroom.
McSwain's union sent the Department a letter pointing out a recent precedential decision by the Board that found sleeping on duty insufficient to justify termination where there was no documented progressive discipline.
The Department sent an amended notice of adverse action. The action was based on inexcusable neglect of duty, insubordination, dishonesty, inexcusable absence without leave, discourteous treatment, willful disobedience, failure of good behavior, and unlawful retaliation (Gov. Code, § 19572, subds. (d), (e), (f), (j), (m), (o), (t), (x)). The dismissal was based on several acts, including the pants-dropping incident, the mooning incident, the bloody toenail incident, and the crude and vulgar remarks about a co-worker, Blood's wife.
At a hearing before an administrative law judge (ALJ), there was considerable testimony that it was not unusual for an operator to fall asleep on the job. McSwain testified on the morning of the restroom incident he went to take readings. On the fifth floor he got dizzy and sat down in the lobby. He was still dizzy, so he went to the couch in the women's restroom to lie down. He alternated between lying down and sitting up. He was on medication for chronic hypertension; management knew about that as he had had an attack at work and had to go to the hospital.
McSwain's physician, John Mevi, testified McSwain had hypertension and labryinthitis. In 1993, McSwain was diagnosed with Meniere's syndrome, w
Page 1 2 3 4 5 6 California Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|