Case Summaries
March, 2007

Termination For Sleeping During
Working Hours Upheld

FLIPPIN v. LOS ANGELES CITY BOARD OF CIVIL SERVICE COMM’S,
148 Cal.App. 4th  272 (2007)
                       
The Los Angeles Department of Water and Power (DWP) terminated Kenneth Flippin from his employment as a truck driver after he was found sleeping in a hammock beneath a DWP truck on a public street during work hours. Flippin appealed the DWP’s decision, and a majority of the Los Angeles City Board of Civil Service Commissioners (Board) sustained the termination after sustaining the DWP’s charges that Flippin was sleeping while on duty in public view, was insubordinate to his superiors when confronted about the misconduct, and had engaged in misconduct seriously reflecting on the City of Los Angeles and its employees. The Board  unanimously concluded that before discharging respondent, the DWP had satisfied the due process, Skelly vs. State Personnel Board, requirements.

Flippin petitioned for administrative mandamus to compel the Board to reinstate his employment, claiming that the DWP denied him his due process right to an impartial Skelly hearing officer; that there was insufficient evidence to support the DWP’s charges against him; and that the penalty of discharge was unwarranted. The trial court sustained the Board’s determination that Flippin waived his right to a Skelly hearing and that no Skelly violation occurred, and sustained the Board’s findings concerning the charges of misconduct against respondent. The trial court however concluded that the penalty imposed for Flippin’s offenses was excessive, and ordered the Board to set aside the portion of its decision sustaining Flippin’s discharge and to reconvene for a reconsideration of the penalty. The DWP appealed the trial court’s decision. Flippin cross-appealed the trial court’s determination that no Skelly violation occurred.

The California Court of Appeal, Second District (Division Two) concluded that substantial evidence supported the trial court’s determination that Flippin waived his right to a Skelly hearing, and affirmed that ruling. The Appellate Court further concluded that under the circumstances presented on appeal Flippin was not denied his due process right to an impartial Skelly hearing officer. The Appellate Court also concluded that the  trial court erred in setting aside the penalty of termination imposed by the Board, and reversed the judgment.