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McSwain v. State Personnel Board1/31/2002
hich is characterized by dizziness and ringing in the ears. McSwain had not requested a letter for his employer or any accommodation in 1992.
There was also testimony about McSwain's drinking problem. In the spring or summer of 1992, Lawrence and Blood went to the administrative officer as they thought McSwain might have a drinking problem. They tried unsuccessfully to get McSwain to self-refer to an employee assistance program. McSwain saw no need. After the restroom incident, McSwain went to an employee assistance program and to alcohol and drug abuse counseling. He learned that binge drinking could be an alcohol abuse problem.
On the issue of the appropriate discipline, Lonnie Long, the chief of the southern field division, testified the consensus of the field division chiefs was that sleeping on the job was a serious matter and termination an appropriate action. The operator was required to take prompt action to correct abnormal conditions before life or equipment was threatened. On cross-examination by McSwain's attorney, Lawrence testified Scoles had been absent from the plant without prior approval. The first three incidents resulted in a verbal reprimand; the fourth time Scoles received a written reprimand. The initial draft of the notice of adverse action against McSwain called for a one-year reduction in pay of five percent.
The ALJ found no evidence that McSwain was sleeping, but that he did leave his post, failed to complete work, and failed to respond to alarms. The ALJ found McSwain engaged in discourteous treatment and other failure of good behavior in the pants dropping and mooning incidents, sending the bloody toenail, and his lewd remarks about Blood's wife. McSwain inexcusably neglected his duty in the restroom incident. The ALJ found McSwain's bizarre misbehavior could be due to his alcoholism and modified the dismissal to a suspension with reinstatement conditioned upon ongoing participation in a rehabilitation program.
The Board rejected the ALJ's decision and determined to decide the case itself. The Board requested briefing on what evidence established the misconduct was attributable to alcoholism and what the appropriate penalty should be.
The Board found cause for discipline based on inexcusable neglect of duty in the restroom incident and inappropriate behavior and discourteous treatment in the mooning and pants dropping incidents, the bloody toenail incident, and the sexual remarks. It rejected the alcoholism defense, finding no evidence McSwain's misconduct was attributable to alcoholism. The Board found dismissal was appropriate. It concluded that secreting himself in the women's restroom and failing to respond to the alarm was serious misconduct and when coupled with his repetitive juvenile and rude antics, McSwain did not deserve to wear the badge of a state employee.
McSwain petitioned for a peremptory writ of mandate, contending the Board's decision was not supported by the evidence. The court denied the petition, finding there was sufficient evidence to warrant dismissal. It accepted the Board's conclusion that dismissal could be appropriate for a one-time serious incident in a sensitive position.
DISCUSSION
I.
McSwain's opening brief is a rambling diatribe. He criticizes the fairness of both the investigation and the hearing and reargues the evidence to bolster his position. Based on his view of the evidence, he contends the evidence does not support the Board's findings. He contends the Department failed to conduct a thorough and neutral investigation. Both contentions are based on his assertion that Lawrence and Blood were biased against him and their testimony
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