Gonzalez v. State Personnel Bd.

• Decision Date: 21 March 1995
• Docket Number: No. C016541,C016541
• Citation: 33 Cal.App.4th 422,39 Cal.Rptr.2d 282
• Parties: , 98 Ed. Law Rep. 304, 4 A.D. Cases 337, 9 A.D.D. 106 Arnoldo GONZALEZ, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant, CALIFORNIA DEPARTMENT OF EDUCATION, Real Party in Interest and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 282

39 Cal.Rptr.2d 282

33 Cal.App.4th 422, 98 Ed. Law Rep. 304, 4 A.D. Cases 337,

9 A.D.D. 106

Arnoldo GONZALEZ, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant CALIFORNIA DEPARTMENT OF EDUCATION, Real Party in Interest and Appellant.

No. C016541.

Court of Appeal, Third District, California.

March 21, 1995.

Joseph R. Symkowick, Gen. Counsel, and JoAnne Lowe, Deputy Gen. Counsel, for appellant and real party in interest.

Christopher W. Waddell, K. William Curtis, Nalda Keller, and Dolly A. Jones, Sacramento, amicus curiae, for appellant and real party in interest.

Barbara E. Brecher, Sacramento, for plaintiff and respondent.

PUGLIA, Presiding Justice.

The California Department of Education (CDE) is required by state and federal disability statutes to make reasonable accommodation for the known physical or mental limitations of its employees who have a disability. This appeal concerns whether real party in interest, CDE, unlawfully discriminated against plaintiff, its employee, by terminating him for misconduct caused by a disability, to wit, alcoholism, without first affording "reasonable accommodation" for plaintiff's alcoholism. Plaintiff's termination was upheld by defendant State Personnel Board (Board).

In an administrative mandamus proceeding, the superior court concluded alcoholism is a disability under state law and that state law forbids termination for misconduct related to alcoholism without first reasonably accommodating the employee's disability; the court further concluded that reasonable accommodation of alcoholism requires, at minimum, an opportunity for in-patient treatment. Since CDE had made no such accommodation, the superior court dismissed several charges of misconduct which the Board had sustained. The court found these charges were related to plaintiff's alcoholism, and directed the Board to reconsider plaintiff's termination in light of other charged misconduct, but only if it first found the other misconduct was not caused by plaintiff's alcoholism. The superior court found plaintiff fell within an exception to, and therefore did not qualify for protection under, the cognate federal disability statute. CDE appeals from the judgment. ¹

We shall hold CDE did not unlawfully discriminate against plaintiff by terminating him for misconduct related to his alcoholism without first undertaking reasonably to accommodate his "disability," because plaintiff's misconduct disqualified him from the protection of both the state and federal disability statutes, rendering it unnecessary reasonably to accommodate his disability as a precondition to termination. We shall therefore reverse.

I

We have not been provided a transcript of the administrative hearing, but the relevant facts are recited in the findings of the administrative law judge and are undisputed. Plaintiff was employed by CDE as a bilingual/migrant education consultant, responsible for developing and promoting services in the areas of bilingual and migrant education, and consulting thereon with local administrators, teachers, and others. Plaintiff's work required that he travel throughout the state on a regular basis.

On May 24, 1988, plaintiff was served a notice of adverse action imposing a 30-day suspension from work. The notice stated as the basis for this discipline that between 1985 and 1988, there had been several episodes when plaintiff reported to work intoxicated, was unable to perform his duties, was absent without leave, and used abusive language on the job. CDE informed plaintiff it considered these incidents related to his long-term alcohol abuse and recommended he seek treatment. Plaintiff was warned continued misconduct would result in termination.

Plaintiff appealed his suspension and, on August 31, 1988, reached a settlement with CDE which reduced the suspension to seven days on the condition plaintiff "enroll in and complete an alcohol abuse treatment program."

Plaintiff attended an out-patient alcohol abuse treatment program at Kaiser Hospital on July 28, August 17, and November 10, 1988. On November 10, plaintiff began attending weekly alcohol group meetings. Nevertheless, plaintiff continued to abuse alcohol and did not submit proof to CDE that he completed Kaiser's out-patient treatment program.

On February 25, 1989, the Department of Motor Vehicles suspended plaintiff's driver's license due to alcohol-induced lapses of consciousness. On March 6, plaintiff checked out a state vehicle in order to drive to San Benito County the following day to attend a migrant education compliance review. Before leaving Sacramento, plaintiff was notified by mail his driver's license had been suspended. He did not so inform CDE.

En route to San Benito County, plaintiff began experiencing what was later diagnosed as an "alcoholic hallucinosis episode" during which he believed, falsely, that two other persons were with him in the state vehicle and were arguing. Plaintiff abandoned the vehicle on Interstate 5 in Fresno County, leaving the keys in the ignition. The next morning, March 7, he was picked up by the Fresno County Sheriff's Department and taken to Valley Medical Center where he was evaluated and released. The vehicle was later discovered and returned to Sacramento at a cost to CDE of $623.43.

Plaintiff did not notify CDE of his whereabouts on March 7 and, it goes without saying, did not attend the compliance review in San Benito County. Plaintiff returned to Sacramento on March 8 and reported to work. He was immediately placed on administrative leave. Plaintiff was directed to call his office each morning and afternoon while on leave and to prepare and deliver to his superiors by March 13 a written report of the incident. Plaintiff failed to call in as directed and he did not deliver the required incident report until two days after the March 13 deadline.

Plaintiff was terminated on March 29, 1989. At that time, he still did not acknowledge his alcoholism. A notice of adverse action listed the following misconduct as the basis for termination: (1) driving a state vehicle without a valid license; (2) abandoning a state vehicle and failing to give notice; (3) failing to attend a scheduled compliance review; (4) being absent without leave and failing to notify CDE on March 7 and 8; (5) failing to call in on March 9, 10, 13 and 14; and (6) failing to comply with the earlier settlement agreement by attending outpatient treatment.

Plaintiff appealed his termination to the Board. An administrative law judge (ALJ) took evidence and rendered a proposed decision finding true the first five of the six grounds for termination set forth in the notice of adverse action. As to the sixth ground, failure to comply with the settlement agreement, no finding was made as CDE had indicated it did not intend to rely upon that ground. The ALJ found plaintiff's alcohol abuse directly responsible for his abandonment of the vehicle, but only indirectly responsible for the other charged misconduct. The ALJ also found CDE made "serious and sustained attempts to reasonably accommodate" plaintiff's alcoholism but plaintiff resisted all such efforts. Finally, the ALJ concluded "[t]he circumstances surrounding the misconduct and the likelihood of recurrence were of such a nature as to support dismissal." The Board adopted the ALJ's proposed decision.

Plaintiff commenced the underlying administrative mandamus proceeding pursuant to Code of Civil Procedure section 1094.5. The petition alleged the findings of the Board are not supported by the record, the decision upholding termination is not supported by the findings, and the penalty of dismissal is excessive. Plaintiff further complained the Board did not proceed in the manner provided by law, alleging it upheld his termination despite CDE's failure to afford reasonable accommodation as required by both state and federal law.

The superior court issued a peremptory writ of mandamus. The court found inapplicable the federal Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.; federal Rehabilitation Act). Although the federal Rehabilitation Act requires reasonable accommodation for alcoholism, it expressly excepts from that requirement alcoholic employees whose current use of alcohol renders them unable to perform the duties of the job or who pose a threat to property or to the safety of others. The superior court made a finding plaintiff fell within that exception.

The superior court concluded alcoholism is a disability under state law to which the employer must make reasonable accommodation. The court rejected the argument of CDE that state law contains an exception similar to that in the federal Rehabilitation Act. The superior court adapted to state law certain specific criteria of reasonable accommodation to alcoholism which have been judicially engrafted upon the federal Rehabilitation Act. (See Rodgers v. Lehman (4th Cir.1989) 869 F.2d 253, 258; Fuller v. Frank (9th Cir.1990) 916 F.2d. 558, 561-562.) Applying those criteria, the superior court held CDE was required to afford plaintiff an opportunity for in-patient treatment before it could lawfully terminate him for alcoholism-related misconduct unless CDE could demonstrate such accommodation would present an undue hardship. The superior court found plaintiff's abandonment of the vehicle and failure to notify CDE of his whereabouts were misconduct related to plaintiff's alcoholism and dismissed these charges. The Board was directed to determine whether facilitating in-patient treatment would pose an undue hardship on CDE and, if not, to determine the appropriate penalty for any misconduct not related to plaintiff's alcoholism.

II

Review of disciplinary action by an appointing authority is directed in the first instance to the Board. The Board acts as an adjudicatory body, weighing the evidence to determine the facts and exercising discretion to ascertain whether the charges sustained are...