Las Vegas POA

Employer Cannot Alter Finalized Discipline Given Firefighters

Written on 11/06/2020
Will Aitchison

Justin Chaplin, James Michels, and Frank Schonig are firefighters with the California Department of Forestry and Fire Protection. In April 2014, they and four other candidates applied to be interviewed for three fire captain positions that had become available. Before the interviews, a battalion chief surreptitiously texted information to Chaplin, Michels and Schonig about the interview, including questions and desired responses. Without reporting that they had received this information, the three proceeded with the interview and performed well. Chaplin and Schonig were appointed to be limited-term fire captains, and Michels was appointed to be a permanent fire captain.

An investigation was launched against the battalion chief after he was accused of murdering his girlfriend and engaging in wrongdoing at the Academy. During this investigation, Chaplin, Michels and Schonig admitted that they had received the text messages about the interviews.

In January 2015, the Department served disciplinary notices, known as notices of adverse action, on the three firefighters. Chaplin and Schonig were notified that their appointments as limited-term fire captains would end, and Michels was notified that he failed his probationary period. They were also notified that their pay would be reduced by five percent for 12 months. This discipline was upheld in February after each of the men was given a hearing. The three firefighters did not appeal their discipline in a timely manner, but Schonig later sought and received a good-cause exception to the deadline. His appeal was therefore allowed to proceed.

Within weeks of their discipline being upheld, two of the three firefighters were given new interviews and were again promoted. Schonig became a permanent fire captain and Chaplin became a limited-term fire captain at a different unit from his previous appointment. In early May, the Sacramento Bee published an article with comments by the director of the Department about Schonig and Chaplin’s “boomerang promotions.” The article reported that the firefighters’ “re-promotions caught the director off-guard,” and that he was “unhappy that both men so quickly regained the rank he stripped from them.” According to the article, the director would like to “bust them down again.”

Shortly after the article was published, the Department notified Chaplin and Michels that the disciplinary action taken against them was “withdrawn,” and they were placed on administrative leave. It also notified Schonig, who was still in the process of appealing his original discipline, that his discipline was being rescinded and he would also be placed on administrative leave. The Department then notified the three that they would be sanctioned more severely by being demoted to the position of Fire Fighter II.

When the California State Personnel Board upheld the demotions, the firefighters challenged the decision in the California Court of Appeals.

The Court held that “we agree with the firefighters that once a disciplinary action becomes final, the employer is prohibited from withdrawing it and initiating a new adverse action. The plain language of the controlling state statute could not be clearer. An appointing power’s discipline is final where no appeal is taken within 30 calendar days. It may be true, as the Board notes, that the statute does not specifically ‘limit the employer’s right to withdraw the action, reimburse the employee for any lost back pay and benefits, and impose a new action within the applicable statute of limitations.’ But nothing can be read into the absence of such a limitation.

“Furthermore, even if we were to assume that an employer may set aside a final adverse action upon a showing of good cause, and that the Department preserved its right to do so here, we disagree with the Department’s claim that it ‘had more than sufficient good cause to withdraw and revise the adverse actions’ against the firefighters. The Department argues that it revised the original adverse actions to include additional facts, causes of action, and evidence, and it claims that the original actions were ‘too lenient given the dishonesty inherent in the appellants’ misconduct.’ This argument fails to prove good cause; it mostly just describes what actions the agency took after it withdrew the previous notices.

“We also disagree with the Department that our interpretation of the state statute will ‘lead to absurd results.’ The agency claims that if employers are barred from withdrawing an adverse action after it becomes final, employers will be unable to withdraw a final adverse action ‘even if the employer discovers new facts warranting revision of the disciplinary action.’ But there is nothing ‘absurd’ about expecting an employer to conduct a thorough investigation about alleged misbehavior before an adverse action becomes final. And our conclusion says nothing about an employer’s ability to discipline an employee for new facts that constitute their own wrongdoing.

“Our analysis is different, however, for Schonig, who appealed the first notice of adverse action to the Board. His discipline thus was not final when the Department served him with the new notice of adverse action. Under the state statute at any time before an employee’s appeal is submitted to the board or its authorized representative for decision, the appointing power may with the consent of the board or its authorized representative serve on the employee and file with the board an amended or supplemental notice of adverse action.”

Chaplin v. State Personnel Board, 2020 WL 5651281 (Cal. Ct. App. 2020).

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