 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
McSwain v. State Personnel Board1/31/2002
urther contends that if he did make reference to his prior sexual relationship with Blood's wife, such comments are protected by the First Amendment to the United States Constitution. The determination whether an employer may discipline a public employee for speech requires "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (Pickering v. Board of Education (1968) 391 U.S. 563, 568 [20 L.Ed.2d 811, 817].)
Relying on Department of Corrections v. State Personnel Bd. (1997) 59 Cal.App.4th 131, McSwain contends he had a right to express matters of public concern. In Department of Corrections, this court found a white correctional officer's outburst that he "was tired of this Hispanic shit" to a female Hispanic officer was a protected comment about affirmative action; discipline could only be based on the manner in which it was delivered, with profane language and by grabbing her by the collar and shaking her, not on its content. (Id. at pp. 146-151.) McSwain contends he was concerned about nepotism, claiming he lost a promotion so Blood's wife could be given a job. His remarks, quoted above in the factual background, cannot be construed as a comment on nepotism; they are vulgar and inappropriate for the workplace. The Board did not err in finding them cause for discipline.
II.
McSwain contends the Department could not fire him based on his disability and the Department knew of his disability because he had an anxiety attack that required hospitalization. He contends it was an abuse of discretion to reject the medical evidence that he suffered from medical conditions that caused dizziness; the Department waived any right to discipline him for an episode of dizziness because it failed to seek a medical examination under Government Code section 19253.5; and the Department and the Board failed to consider his rights under the Americans with Disabilities Act (42 U.S.C. ยง 12101 et seq.).
As with many of McSwain's contentions, this one is premised on his version of events, not the factual findings of the Board. While McSwain testified he sought out the couch in the women's restroom because he was dizzy, the Board rejected a medical excuse for the restroom incident. The Board found -- and the evidence supports -- that McSwain did not report his dizziness when found, but instead said he was caught and that he forgot to set his alarm. Further, the Board found that even if McSwain was not feeling well, he had the responsibility to notify someone about his condition. There was a telephone in the lobby where he claimed to first become dizzy. McSwain testified he did not think it was necessary to notify Allen. The Board found this position "difficult to believe."
Further, it was undisputed that at no time before he was dismissed did McSwain request any reasonable accommodation for his medical condition. The record simply does not support McSwain's contention that he was dismissed because of a disability.
III.
McSwain contends the penalty of dismissal was excessive. He argues others were only reprimanded for abandoning their positions, there were no complaints about his lewd behavior, and he did not receive any progressive discipline.
"Generally speaking, ` n a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.' [Citations.]" (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217.) "Neither an appellate cou
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.
|
|