The reason(s) for the adverse action can be one or more of the 24 causes for discipline set forth in California Government Code section 19572. These 24 causes for discipline include incompetency, insubordination, misuse of state property, and dishonesty, among other things. Your Notice of Adverse Action will identify why an adverse action is being taken against you (i.e., which of the 24 causes for discipline apply to you).
If you appeal your Notice of Adverse Action, you (or your attorney) will have the opportunity to argue before an Administrative Law Judge (“ALJ”) as to why the adverse action against you should be revoked and/or why the penalty should be modified. The ALJ “will review the evidence that is presented to determine whether: (1) the department proved the factual acts or omissions as alleged in the notice of adverse action; (2) if so, whether those acts or omissions constitute legal cause for discipline; and (3) whether the penalty that the department imposed is just and proper for the proven misconduct.” (Appeals Resource Guide, Prepared by the State Personnel Board Appeals Division, May 2019, at 12.)
If you have been served with a Notice of Adverse Action that identifies “insubordination” as one of the causes for discipline, here are some things that you should know:
1. To support an insubordination charge, an employer must demonstrate that you engaged in “mutinous, disrespectful, or contumacious conduct under circumstances where [you have] intentionally or willfully disobeyed an order or instruction that a supervisor is entitled to give and have obeyed.” (K.S. v. California Dept. of Corrections and Rehabilitation, Case No. 17-0511, Board Decision and Order (Precedential), No. 17-02, November 2, 2017, at 18.)
2. “Generally, a finding of insubordination is appropriate when an employee fails to submit to authority by ignoring or disobeying a direct order the supervisor is entitled to give and entitled to have obeyed.” (In the Matter of the Appeal by Jose Fortunato, Case No. 28098, Board Decision (Precedential), No. 93-34, November 2 to 3, 1993, at 4.)
3. For a finding of insubordination, the fact finder must find that the “failure to comply with the direct order was intentional and willful conduct.” (In the Matter of the Appeal by David Anthony Cole, Case No. 33530, Board Decision (Precedential), No. 94-27, September 7, 1994, at 13 (emphasis added).) In turn, “the [elements of intent or willfulness] imply that the person knows what he is doing and intends to do what he is doing.” (Id (citation and quotation marks omitted).)
4. A single incident may be sufficient to constitute insubordination. (In the Matter of the Appeal by Richard Stanton, Case No. 33938, Board Decision (Precedential), No. 95-02, January 4, 1995, at 9.)
5. “Insubordination” has been found in the following instances: (a) when a correctional officer borrowed money from a subordinate employee even though the correctional officer had been instructed previously not to borrow money from subordinate employees; (b) when a medical professional ignored a direct order from a sergeant to attend immediately to a sick inmate; (c) when a deputy labor commissioner acted in a belligerent and hostile manner in response to his supervisor’s directive that he conduct a hearing; (d) when a bookbinder failed to follow his supervisor’s order to return to work and failed to follow the procedures for calling in sick and for verifying illness; (e) when a correctional officer failed to submit to a sobriety test even though he had been ordered to do so; (f) when a CHP officer refused to cooperate during an administrative investigation; (g) when a field representative purposely communicated confidential information after he had been specifically ordered not to release the information; and (h) when a tree maintenance leadworker initially refused to obey his supervisor’s order to obtain a medical certificate from the DMV.
If you are a state civil service employee who has been served with a Notice of Adverse Action and are contemplating filing an appeal with the SPB Appeals Division, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Walnut Creek, San Ramon, and Concord.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.