Sleeping on the Job Warrants Firing of City Worker

Monday, March 5, 2007

Page 1

Sleeping on the Job Warrants Firing of City Worker—C.A.

By KENNETH OFGANG, Staff Writer

A Los Angeles city employee who slept on a hammock underneath his truck during working hours was properly fired, this district’s Court of Appeal has ruled.

Div. Two Thursday reversed Los Angeles Superior Court Judge Dzintra Janavs order that the Board of Civil Service Commissioners reconsider the dismissal of Kenneth Flippin and remanded for the entry of judgment in favor of the city.

Janavs had ruled that dismissal was an excessive penalty in light of Flippin’s record, but the appellate panel said that the judge, having upheld the board’s findings of misconduct, was obligated to accept its penalty determination in the absence of a manifest abuse of discretion.

The sleeping incident occurred in April 2003. John Sharp, a DWP manager who reviewed incident reports and personnel records, which showed that Flippin had been suspended twice in 16 years with the department, recommended that he be terminated for insubordination—making an obscene gesture and refusing to remove the hammock from his truck when ordered to do so—sleeping on the job, and engaging in misconduct that seriously reflected on city employees because it occurred in public view at a jobsite.

Noting that DWP rules permit an employee to be dismissed for any of those offenses, without regard to prior discipline, Sharp recommended that Flippin be fired. DWP’s assistant general manager adopted that recommendation and notified Flippin of the proposed discipline.

Flippin, through a union representative, offered to retire in lieu of dismissal, and Sharp approved the acceptance of the offer. But before the agreement could be finalized, Flippin withdrew the offer, saying he only made it because he was under the misimpression that being fired would have an adverse impact on his retirement benefits.

DWP then fired Flippin, who took an administrative appeal.

At his hearing, a DWP supervisor and a dispatcher that they responded to a jobsite after a customer complained that a driver was sleeping. They said they found Flippin asleep in the hammock and that when they woke him up, he made an obscene gesture and called one of them a snake when he was told to remove the hammock from the truck.

Flippin testified that he was resting, but not sleeping; that he kept a hammock in his truck for several years and was never told he could not do so; and that it was common procedure for drivers to rest or sleep in their vehicles while waiting for crews to arrive. The hearing examiner found that Flippin had engaged in misconduct, but that the penalty was excessive, and recommended a lengthy suspension instead.

Both sides objected to the hearing examiner’s report, and the board heard argument, following which it agreed with the department that Flippin should be fired.

Justice Victoria Chavez, writing for the Court of Appeal, rejected Flippin’s argument that he was denied due process because he was not given a pre-termination hearing. Flippin waived his right to such a hearing when he offered to retire, even though he later rescinded the offer, she said.

Chavez went on to say that the trial judge correctly found that Flippin had engaged in misconduct for which the applicable rules authorized termination. “Having concluded that the charges sustained by the Board against respondent were true, the trial court was required to uphold the penalty imposed if there was any reasonable basis for doing so,” she explained.

This was not, the justice wrote, an “exceptional case” in which reasonable minds could not disagree with regard to the penalty, so the trial judge should have upheld the board’s decision.

The case is Flippin v. Los Angeles City Board of Civil Service Commissioners (Los Angeles City Department of Water and Power), 07 S.O.S. 1081.