Judge James C. Chalfant, Case 22STCP01670 2023-02-21 Tentative Ruling

Petitioner Nathan Jackson (“Jackson”) seeks a writ of mandate compelling Respondent Board of Civil Service Commissioners (“Board”) of the City of Los Angeles (“City”) to set aside its decision to uphold a ten-day suspension.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Jackson commenced this proceeding on May 3, 2022. The pertinent petition is the First Amended Petition (“FAP”), filed on May 5, 2022, alleging causes of action for administrative and traditional mandamus. The FAP alleges in pertinent part as follows.

Jackson was at all relevant times a permanent, full-time civilian Detention Officer with the Custody Services Division (“CSD”) of the Los Angeles Police Department (“Department” or “LAPD”). On February 26, 2018, he was absent from work due to a serious health condition.

On March 18, 2018, Jackson went to his worksite to turn in Family Medical Leave Act (“FMLA”)/California Family Rights Act (“CFRA”) paperwork for his absence and inquire when he could return to on-duty work status. He went to the Watch Commanders’ office and spoke with Sergeant (“Sgt.”) Victor Martinez (“Martinez”). Sgt. Martinez advised Jackson that, because of his extended absence, he could not return to work until he was cleared by the Injury on Duty (“IOD”)/FMLA coordinator, who was not scheduled to work until the next day. Jackson left because of this fact. Because Jackson was not reporting for duty that day, he did not sign the daily work log.

After Jackson left, Sgt. Martinez called him and ordered his immediate return to the worksite to avoid discipline. Jackson felt his medical symptoms flare up, told Martinez he could not return, and drove himself to the hospital for evaluation and treatment. His physician determined that he could not work that day and gave him a work status letter to that effect.

After Jackson returned home, Sgt. Martinez and Sgt. Nicholas Balzano (“Balzano”) banged on his door. When Jackson opened it, Sgt. Martinez ordered Jackson to return to the worksite with them in the back of their patrol car. Jackson gave Sgt. Martinez the work status letter. After Sgt. Martinez made a phone call, he rescinded the order for Jackson to return to work. Sgt. Martinez took the work status letter excusing Jackson from work on March 18, 2018 and advised Jackson to submit his FMLA/CFRA paperwork to the IOD/FMLA Coordinator on his next working day.

Jackson returned to work on March 19, 2018 and filed his FMLA/CFRA paperwork with the IOD/FMLA coordinator. On April 4, 2018, the City Medical Liaison's office certified Jackson’s request for FMLA/CFRA leave and retroactively applied from January 25 through July 24, 2018.

On February 9, 2019, Jackson received his 2018 annual Employee Evaluation, which had all positive feedback and determined that Jackson met LAPD standards in all areas during the evaluation period.

On February 20, 2019, CSD Commanding Officer Captain (“Capt.”) Rolando Solano (“Solano”) issued a Notice of Proposed Discipline which alleged that Jackson’s conduct on March 18, 2018, consisted of unexcused tardiness, reporting for duty unfit for work due to the influence of drugs or alcohol, leaving an assigned work location without proper approval or appropriate reason, and insubordination for refusal to provide the doctor’s note as Sgt. Martinez directed. Jackson had a Skelly meeting with Capt. Solano the same day.

On May 6, 2019, the City served Jackson with a Notice of Discipline with a ten-day suspension, effective from May 12 to 26, 2019. The notice contained charges not on the February Notice of Proposed Discipline. The same day, Jackson filed an appeal with the Board. He served his ten-day suspension as scheduled.

On November 12, 2019, the Board’s Hearing Examiner held a hearing on the appeal. Jackson notified the Hearing Examiner that he did not stipulate to the Department’s satisfaction of Skelly due process requirements. After much discussion of due process issues, the parties stipulated that the Department failed to meet due process requirements because the second allegation on the Notice of Discipline differed from the Notice of Proposed Discipline.

On February 17, 2022, the Hearing Examiner issued a report which recommended that the Board sustain all charges against Jackson. On February 27, 2022, Jackson filed exceptions to the report. On March 10, 2022, the Board unanimously voted to find that the Department met the Skelly requirements, sustained all four charges and the ten-day suspension as discipline, and adopted the findings and conclusions in the Hearing Examiner’s report.

Jackson seeks a writ of mandate setting aside the Board’s decision and directing it to set aside the hearing officer’s report, reconsider the case, and conduct proceedings to determine the amount of back salary and all other emoulments of employment due to Jackson between May 12, 2019 and March 10, 2022 because of the failure to meet Skelly due process obligations.

On May 4, 2022, Jackson filed a notice of related case for Jackson v. City of Los Angeles, Case No. 21STCV13521.

On July 19, 2022, the parties stipulated to dismiss then-Real Party in Interest Service Employees International Union Local 721 (“SEIU”).

On October 7, 2022, as this court was dark, Department 82 (Hon. Mary Stroebel) heard and denied Jackson’s ex parte application for a stay.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a law enforcement officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Boarders, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Board, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Board, (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-18. The penalty should be upheld if there is “any reasonable basis to sustain it”. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (2019) 40 Cal.App.5th 871, 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

No payment for sick leave allowance in excess of three consecutive days shall be made until a doctor’s certificate or other satisfactory proof has been received and approved by the employee’s commanding officer. RJN Ex. D (Manual §3/711.80). If the proof is not satisfactory to the commanding officer, the employee shall be marked absent until satisfactory proof can be furnished. RJN Ex. D (Manual §3/711.80). Commanding officers, at their discretion, may require a doctor’s certificate or other proof of illness at any time. RJN Ex. D (LAPD Manual §3/711.80). If the employee or physician voluntarily releases a medical report to a supervisor to fulfill the requirements for proof of sick leave, the report shall be treated as confidential and forwarded to Medical Liaison Section. RJN Ex. D (LAPD Manual §3/711.80).

All employees who arrive at their assigned workstation after the Watch Commander or Watch Supervisor has begun roll call will be considered tardy. AR 709, RJN Ex. E (LAPD Jail Operations Manual (“Jail Manual”) §1/181). Three or more instances of tardiness in a Deployment Period or any four-week period constitutes excessive tardiness. AR 709, RJN Ex. E (Jail Manual §1/181).

All employees must document their work hours, either on a Daily Field Activities Report or a sign-in log. AR 710, RJN Ex. F (Jail Manual §1/193). The employee must complete these logs by hand with the Start and End of Watch times as well as all activities outside of the assigned location. AR 710, RJN Ex. F (Jail Manual §1/193).

Per the MOU between the City and SEIU, a Notice to Correct Deficiencies (“NTCD”) may be sealed upon the request of an affected employee who has not been involved in any subsequent incidents that resulted in written corrective counseling or other management action for a period of four years from the date the most recent notice was issued or management action taken. AR 714 (MOU 4.2(C)). It is mutually understood that such notice is not a form of LAPD discipline, and a copy is not placed in the personnel folder. AR 714 (MOU 4.2(C)).

Unless an employer waives its employees’ notice obligations described herein, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. AR 711 (2 CCR §11091(a)(1)). Although the employee need not expressly assert rights under CFRA/FMLA, or even mention CFRA/FMLA to meet the notice requirement, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. AR 711 (2 CCR §11091(a)(1)).

The employer shall respond to the leave request as soon as practicable and in any event no later than five business days after receiving the employee's request. AR 712 (2 CCR §11091(a)(6)). The employer shall attempt to respond to the leave request before the date the leave is due to begin. AR 712 (2 CCR §11091(a)(6)). Once given, approval shall be deemed retroactive to the date of the first day of the leave. AR 712 (2 CCR §11091(a)(6)).

The primary goal of LAPD’s disciplinary policy is to correct employee behavior or performance. AR 520 (Policies 33.1(A)). To achieve that goal requires a mutual understanding among City management, employees, and the Civil Service Commission as to certain disciplinary criteria. AR 520 (Policies 33.1(A)).

An offense is considered a first offense on the first occasion disciplinary action is taken by the supervisor. AR 527 (Policies 33.2). An offense should be considered as a second or third offense only when it is of the same general nature (not necessarily identical) as the previous offense and the undesirable actions have been pointed out to the employee previously. AR 527 (Policies 33.2). When a previous offense has occurred, the time elapsed between that offense and the current offense should be considered in determining the corrective action. AR 527 (Policies 33.2).

Recommended discipline for the first violation of departmental rules ranges from oral warning to five-day suspension. AR 529 (Policies 33.2).

Employees must report for work as scheduled unless ill, injured, or involved in an emergency. AR 530 (Policies 33.2). Recommended minimum discipline for leaving an employee’s assigned work location without proper approval or reason is written notice for the first offense, one-day suspension for the second, and ten-day suspension for the third. AR 530 (Policies 33.2). Discharge is the maximum discipline for the first offense. AR 530 (Policies 33.2). Recommended discipline for “frequent or unexcused tardiness” ranges from oral warning to written notice for the first offense, written notice to a ten-day suspension for the second, and a ten-day suspension to discharge for the third. AR 530 (Policies 33.2).

Recommended discipline for insubordination, broadly defined as refusal to perform reasonable work assignments or cooperate with supervisors or management in the performance of duties, ranges from six-day suspension to discharge for the first offense and only includes discharge for the second. AR 530 (Policies 33.2).

Recommended discipline for the first instance of reporting for duty under the influence of drugs or alcohol which results in unfitness to work ranges from a ten-day suspension to discharge. AR 532 (Policies 33.2).

The City Charter empowers the Board to make and enforce the Civil Service Rules and to establish and maintain the civil service system in accordance with the City Charter. City Charter §541. The City Charter applies to all City employees except for elected officials and specifically identified exempt positions. City Charter §§ 1000-1001(a).

A board or officer having the power to appoint shall have the power to suspend or discharge any employee of the office or department. RJN Ex. A (City Charter §1016(a)). No person in the classified civil service shall be discharged or suspended except for cause, which shall be stated in writing by the board or officer having the power to make such discharge. Id. That board or officer shall then file the written statement of cause with the Board with certification that a copy has been served upon the person so discharged or suspended; only then does the discipline take effect. RJN Ex. A (City Charter §1016(b)).

The Board serves as an appellate body for appeals of discharges and reductions of permanent employees, subject to the Civil Service Rules. City Charter §§ 34, 35(6). Within five days of service of the written statement upon the former employee, that person shall then file a written application with the Board to require a hearing to investigate the grounds. RJN Ex. A (City Charter §1016(c)).

When a disciplined City employee applies for the Board to investigate the grounds for such removal, discharge, or suspension, the Board shall first determine the extent to which the appointing authority taking the action complied with Personnel Department Policy. RJN Ex. C (Board Rule §§ 12.1, 12.4).

Each party has the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination, and impeach any witness regardless of which party first called the individual to testify. RJN Ex. C (Board Rule §12.6). An employee who does not testify may be called and examined as if under cross-examination. RJN Ex. C (Board Rule §12.6).

The hearing need not be conducted according to technical rules relating to evidence and witnesses. RJN Ex. C (Board Rule §12.7). Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. RJN Ex. C (Board Rule §12.7).

Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. RJN Ex. C (Board Rule §12.7). The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions, and irrelevant and unduly repetitious evidence may be excluded. RJN Ex. C (Board Rule §12.7).

The hearing examiner shall determine the agency’s compliance with Personnel Department Policy, adequacy of the evidence submitted in support of the charges, and the sufficiency of the grounds for removal, discharge, or suspension. RJN Ex. C (Board Rule §12.12).

It is not necessary for the Board to make separate findings on each charge, and it may sustain or not sustain any and all charges. RJN Ex. C (Board Rule §12.17). For any sustained charges, the Board may sustain the discharge or suspension or, alternatively, initiate action to determine if the appointing authority would consent to a lesser discipline. Id.

If the Board finds that the grounds stated for the discharge or suspension were insufficient or were not sustained, it shall order the board or officer who made the discharge to reinstate or restore to duty the person. RJN Ex. A (City Charter §1016(d)). The person will also receive compensation from the City the same as if he or she had not been discharged or suspended. RJN Ex. A (City Charter §1016(e)).

When the Board denies reinstatement or restoration to duty after such application, the person may file a written claim for compensation and a demand for reinstatement. RJN Ex. B (City Charter §1017). The person must file the claim and demand within 90 days from the date of the decision of the Board following a hearing, or if no hearing is applied for, from the date on which it is claimed that the person was first illegally, wrongfully, or invalidly demoted, laid off, suspended, or discharged. Id. The demand for reinstatement must be filed with the Board and the claim for compensation must be filed with the City Clerk. Id. Failure to file a demand for reinstatement with proof of filing with the Board within the time specified shall be a bar to any action to compel reinstatement. Id. Proof of filing of the claim for compensation with the City Clerk within the time and manner specified shall be a condition precedent to recover of wages or salary. Id.

Service of notice in accordance with the City Charter may be made by handing a copy to the person or by sending a copy by certified mail to the person's last known residence if, after due diligence, the person cannot be found. City Charter §1018.

On June 19, 2009, Jackson joined LAPD as a Detention Officer. AR 776. A Detention Officer manages the intake of arrestees including booking, fingerprinting, and maintaining custody and control of arrested persons at LAPD custody facilities. Throughout 2011 and 2012, Jackson was diagnosed with attention deficit/hyperactivity disorder, insomnia, and anxiety. AR 715. In 2013, Capt. David Lindsay (“Lindsay”) provided a memorandum that documented an accommodation whereby Jackson could arrive up to 30 minutes late for his shift, provided that he make every effort to arrive on time and make up time lost. AR 715.

An employee comment card shows that on September 29, 2012, Jackson was 45 minutes late for his watch and his assignment as kitroom officer. AR 570. Another comment card shows that Jackson failed to report for duty on August 16, 2016. AR 571. He did not explain until the next day that he misread his schedule and thought he had the day off. AR 571.

In September 2016, Lieutenant (“Lt.”) Joe Hernandez (“Hernandez”) revoked the accommodation in Capt. Lindsay’s memo and informed Jackson that he must arrive on time to work every day. AR 715.

On March 13, 2017, Lt. Hernandez issued a NTCD to Jackson for his failure to appear for a senior detention officer test on March 11 and return to his work location afterwards. AR 572-73, 716. Jackson contended that he was on a medically approved leave from work between March 11-13. AR 716. Although he did not call in to report his absence on March 11, he faxed a doctor’s note to management. AR 716.

In an April 21, 2017 letter, the City’s Employee Relations Board asserted that Lt. Hernandez’s actions violated the Employee Relations Ordinance (“ERO”), which protects from discrimination medical conditions which would amount to a disability under California law. AR 717. The absence of any rationale for revoking Capt. Lindsay’s memo was concerning. AR 717. The NTCD also suggested animosity to Jackson’s medical status because Lt. Hernandez had a memo stating why Jackson could not report to work yet issued a disciplinary document anyway. AR 717.

Jackson’s employee evaluations from 2014 through 2019 showed that he met expected standards. AR 721-34. The evaluation report from December 19, 2017 to December 18, 2018 includes the period at issue in this action. AR 723-24. It shows that Jackson met the standard for Work Habits, which is whether the employee consistently complies with assigned work schedule, maintains productivity during scheduled work hours, follows safety rules and other instructions, and plans and performs work in a well-organized manner that maximizes use of time and materials. AR 724.

In 2021, multiple supervisors wrote positive recommendations to support Jackson’s application to CSUN’s graduate program. AR 735-39.

On March 27, 2018, Sgt. Martinez signed a complaint against Jackson. AR 547-51. CSD Sgt. Peter Galan (“Galan”) investigated. AR 553-61. On November 19, 2018, Sgt. Galan interviewed Sgt. Martinez about the events of March 18, 2018. AR 694-705. Martinez stated that Jackson was not at roll call that morning, and it had been noted on the log that he had called in sick. AR 699.

At 7:35 a.m. that morning, Jackson arrived in a disheveled state and wearing casual clothes instead of his duty clothes. AR 699-700. He apologized for being late and said he did not know the marathon was going on and it closed down the streets. AR 700. Sgt. Martinez had directed Jackson on March 10, 2018 to provide a doctor’s note for his recent absences. AR 700. The time book scheduled Jackson to be back from sick leave before March 18, and Sgt. Martinez assumed that he had come back before that day. AR 700. He asked Jackson if he had provided the doctor’s note as ordered. AR 700. Jackson said he did not have one. AR 700. Martinez said that he had ordered him to bring one on March 10 and Jackson had acknowledged that he would bring one. AR 700. Jackson again said that he had not brought one in. AR 700.

Jackson was irritable and confrontational at first, then became quiet and mumbled as he turned to try and leave the office. AR 701. He appeared to be under the influence with glazed eyes, dialated pupils, fidgeting, disheveled, and lethargic. AR 701.

By then Sgt. Balzano was present and heard something about Jackson having a doctor’s note. AR 701. Martinez asked Jackson again if he had a note, and Jackson said it was in his bag and walked out to get it. AR 701. Sgt. Martinez later learned that Jackson had left the facility without approval or permission. AR 701.

At 7:50 a.m., Martinez notified Lt. Hernandez of what happened. AR 702-03. Lt. Hernandez instructed Martinez to find Jackson and order him to remain at the facility while he contacted Internal Affairs. AR 702. At 9:50 a.m., Sgts. Martinez and Balzano performed a welfare check at Jackson’s house. AR 703. They questioned him and asked why he left the facility without approval. AR 703. Martinez reminded Jackson that Balzano heard Jackson say he had a doctor’s note and was going to bring it. AR 703.

Jackson produced a doctor’s note that had been issued at 9:10 a.m. that morning, not the one he was instructed to bring for his earlier absences. AR 704. Jackson remained disrespectful, abrasive, and uncooperative during this conversation. AR 704. When informed that he had said he had a doctor’s note in his bag for his previous absences, Jackson refused to provide one. AR 704. He never mentioned that he was taking FMLA time, either on March 10 or March 18, 2018. AR 705.

Because Jackson had produced a note that showed he should not be on duty that day, LAPD no longer ordered him to report to work. AR 705. Sgts. Martinez and Balzano reiterated that Jackson needed to produce a doctor’s note for his previous absences. AR 705. Jackson replied that he would produce those on his next working day and make any necessary arrangements if medical requirements or restrictions prevented him from returning to work. AR 705.

A work status report dated March 18, 2018 at 9:10 a.m. from Anna Cheh, MD (“Cheh”) placed Jackson off work for that day. AR 568.[2]

On or about March 19, 2018, an LAPD supervisor certified in a Non-Occupational Sick, Revisit, or Injury Report that showed that Jackson was off sick leave from work from February 26 to March 18, 2018, inclusive. AR 564, 628. Dr. Cheh’s note was attached to the report. AR 564, 628. Jackson was charged 132 sick hours, or 12 hours per each of the 11 sick days, plus ten regular days off or holidays. AR 564. Jackson returned to work on March 19, 2018. AR 564.

LAPD’s Daily Worksheet Portrait for March 18, 2018, generated three days later on March 21, 2018, shows that Jackson was out sick for 12 hours for a shift that began at 6:30 a.m. and ended at 7:00 p.m., a total of 12.5 hours. AR 659.

Jackson’s payroll information shows that for the pay period from March 18 to March 31, 2018, he expended 12 hours of his 100% sick time. AR 707-08.

Jackson filed an Employee Request for Family or Medical Leave under the FMLA. AR 574-79. Jackson’s signature on the form is dated January 25, 2018, Dr. Phu Gia Phan’s signature is dated January 30, 2018, and the supervisors’ signatures are dated March 23, 2018 and April 4, 2018. AR 575.

On April 4, 2018, the Medical Liaisons Office issued a response to the FMLA request that identified the period of requested leave as January 25 to July 24, 2018. AR 580, 584. It acknowledged that the leave was for a serious health condition that made Jackson unable to perform the essential functions of his job. AR 580. The Medical Liaisons Office found that the leave qualified as FMLA or CFRA leave,[3] and the City would count it against Jackson’s annual Family/Medical Leave entitlement. AR 582.

On or about February 20, 2019, CSD Commanding Officer Capt. Solano served Jackson with a Letter of Transmittal adjudicating a complaint against Jackson (“Notice of Proposed Discipline”). AR 542-43. The Notice of Proposed Discipline alleged that on March 18, 2018, Jackson (1) reported late to his duty assignment, (2) while on duty, reported to work unfit for duty, (3) while on duty, left his post without authorization, and (4) while on duty, was insubordinate for refusal to provide a doctor’s note to Martinez as directed. AR 542.

The Notice of Proposed Discipline stated that there was a pattern of conduct based on the facts that (a) Jackson received a comment card for reporting late to duty on September 29, 2012, (b) received a comment card for failing to report for duty and notify the Department of his absence on August 24, 2016, (c) received a NTCD for failing to report to his work location and leaving without notifying a supervisor on March 21, 2017, (d) reported late for duty on April 18, 2018 (open investigation),[4] (e) reported late for duty on June 26, 2018 (open investigation), and (f) arrived to work late, was insubordinate, and abandoned his post pending on September 3, 2018 (open investigation). AR 543.

The investigator’s notes attached to the Notice of Proposed Discipline emphasized that although Jackson was approved for FMLA leave from January 25 to July 24, 2018, he submitted the request after the dates of the allegation. AR 560. He signed the application on January 25, his doctor signed the form on January 30, his supervisor Jose Torres received and signed the form on March 23, and the Commanding Officer signed it on April 4, 2018. AR 560.

The Civilian Penalty Guide listed the discipline for the first instance of insubordination as six-day suspension to discharge, the first instance of reporting for duty under the influence of drugs or alcohol as ten-day suspension to discharge, the first instance of leaving assigned work location without proper approval as written notice to discharge, and the second instance of frequent or unexcused tardiness as written notice to ten-day suspension. AR 544-45. Because Jackson had demonstrated a pattern of escalating behavior, Capt. Solono sustained the recommended penalty of a ten-day suspension. AR 542, 545.[5]

At the same time he was served with the Notice of Proposed Discipline, Jackson was served with the Skelly packet. AR 518-88. During the Skelly interview that day, he received notice that he had until March 20, 2019 to provide an oral or written response to the proposed findings. AR 588. Jackson acknowledged receipt of all materials and that he had been informed of his right to representation. AR 588. He indicated that he intended to submit a response. AR 588.

A Penalty Recommendation form on February 25, 2019 showing that Capt. Solano and two other supervisors recommended a ten-day suspension as discipline. AR 518. On March 7, 2019, Administrative Investigation Division Capt. Valencia Thomas sent an intradepartmental memo to the Support Services Group. AR 592. The memo noted that the second allegation against Jackson should state that he failed to wear his official LAPD-approved uniform while on duty on March 18, 2018, the third allegation should state that Jackson left his worksite without approval while on duty on March 18, 2018, and the fourth allegation should state that Jackson failed to provide a doctor's note as directed while on duty on March 18, 2018. AR 592. Capt. Thomas requested that the Support Services Group ensure that Jackson was notified of the change. AR 592.

On March 25, 2019, CSD sent Jackson a memo stating that, although he had until March 20 to provide a Skelly response, he had not submitted a response. AR 590.

On or about May 6, 2019, LAPD served on Jackson with a Notice of Discipline imposing a ten-day suspension to be served from May 12 to 26, 2019. AR 515. The suspension was based on the Chief of Police’s decision to sustain the allegations that on March 18, 2018, while on duty, Jackson (1) reported late to his duty assignment, (2) failed to wear his official LAPD-approved uniform while on duty, (3) left his post without approval, and (4) failed to provide a doctor’s note as directed. AR 515-16. Later that day, Jackson filed an appeal with the Board. AR 678.

On November 12, 2019, Hearing Examiner Christopher Cameron (“Cameron”) heard the appeal. AR 1. Before any testimony, Cameron asked if the parties stipulated to the satisfaction of Skelly due process requirements, and Jackson’s counsel said he would not. AR 2, 7. Cameron confirmed that Jackson’s position was that the charges in the February 2019 Notice of Proposed Discipline did not match those in the May 2019 Notice of Discipline. AR 18. Cameron obtained a copy of both notices and observed that the first and third counts were identical, the second seemed to be clearly different, and the fourth count might be different. AR 19-20. He stated that he needed to think about the issue. AR 19-20. He asked the parties if he had stated the matter correctly, and they confirmed. AR 20.

Capt. Solano has worked for LAPD for 30 years and has been CSD’s Commanding Officer for three years. AR 21-22. As a Captain III, he adjudicates personnel complaints, including complaints against civilian employee. AR 22-23. He adjudicated the complaint against Jackson. AR 24.

The general adjudication process is that, once an investigation is complete, a person in charge of the complaint at the division level will review it for all necessary components. AR 40. Solano determines if there is enough evidence to sustain the charges and what the appropriate discipline is based on the civilian penalty guide. AR 84. He then reviews it with his officer-in-command of the unit and makes a disciplinary recommendation. AR 40. The recommendation goes up the chain of command to the Support Services Group, then the Administrative Services Bureau, then the Chief of Police as the final decisionmaker. AR 41.

Jackson was continuously off sick from work between February 26 and March 10, 2018, without any work modification or status change. AR 53.

As part of the adjudication process, Solano conducts a Skelly interview. AR 24-25. Jackson was served with the Notice of Proposed Discipline on February 20, 2019 as part of the Skelly process. AR 25-26. Although Jackson’s signature has a date of February 20, 2018, this is incorrect. AR 26. Solano’s signature has the correct date of February 20, 2019. AR 26-27.

At the Skelly hearing that day, Solano served Jackson with a complaint adjudication form that specified a recommended penalty of a ten-day suspension. AR 27-28. The complaint adjudication form told Jackson to see the Notice of Proposed Discipline for details. AR 29.

Jackson received the complaint investigation report during the Skelly process and had an opportunity to respond by March 20, 2019. AR 33-34. Solano could not recall if Jackson did so. AR 34. Capt. Gary Newton, who assisted Solono in personnel matters, sent a notice to Jackson on March 25, 2019 that CSD did not receive a timely response. AR 34-35.

On March 7, 2019, Solano received notice that the Chief of Police had decided to change the wording of some of the allegations. AR 35-36. The Notice of Discipline, which was served on Jackson on May 6, 2019, reflects the allegations in the interdepartmental memo rather than the Notice of Proposed Discipline. AR 36-38. Solano could not recall if Jackson asked about the specific counts or why they varied from the original wording. AR 38.

The Notice of Proposed Discipline accurately reflects Solano’s rationale for his adjudication of Jackson’s case and the Chief of Police concurred with the penalty. AR 58-59. In making his recommendation, he reviewed Jackson’s personnel file, including comment cards, commendations, NTCDs, and complaint history. AR 59. The previous comment cards and NTCDs showed that this was at least a second offense for tardiness, if not a third. AR 65-67. For a second offense, the disciplinary recommendation is written notice to a ten-day suspension. AR 67. At some point, a prior commanding officer granted an accommodation that Jackson could arrive up to 30 minutes late from work, but future officers could rescind that accommodation, and one did. AR 67-68.

As to the second count as amended, the Manual, which applies to all Department employees, lists the required footwear as black shoes or boots with a smooth finish. AR 69, 72. Tennis or athletic shoes do not qualify. AR 72. Each employee assigned to uniformed duty must appear for roll call dressed in a proper uniform with Department-approved body armor and an authorized police equipment belt. AR 74.

Jackson was in a uniformed assignment, but on March 18, 2018 he was wearing white tennis shoes. AR 74-75. He also had on a dirty white T-shirt which did not meet the standard for personnel appearance. AR 75. In a custody environment, unformed employees must have a clean uniform. AR 76. This is important because inmates read the staff’s body language. AR 76. Jackson’s failure to arrive at work on time and in proper uniform reflected a general failure to perform work assignments adequately or promptly. AR 76. The Manual lists the discipline for this second count as a warning to a five-day suspension for a first offense. AR 75.

The third count, leaving the worksite without approval, was a second offense because there had been an earlier offense on March 21, 2017. AR 77-78. A second offense merits discipline between a one-day suspension to discharge. AR 78.

Although the fourth count’s wording varied between the Notice of Proposed Discipline and the Notice of Discipline, they were substantially the same and would have led Solano to consult the same section of disciplinary guidelines. AR 79-80. The charge of insubordination and the charge of failure to provide a medical note as directed by a supervisor were the same; the supervisor asked for a note and Jackson did not provide one, which was insubordination. AR 103. This was Jackson’s second offense for insubordination. AR 80. A second offense merits punishment from a six-day suspension to discharge, and a third would merit discharge. AR 80-81. Solano relied on his understanding that FMLA leave cannot be retroactively applied. AR 96.

Solano recommended a ten-day suspension based on all of the allegations. AR 83. The Chief of Police concurred with Solano’s recommended penalty. AR 58-59.

Sgt. Balzano was the Assistant Watch Commander at the Metropolitan Detention Center (“MDC”) on March 18, 2018. AR 127-28. In that role, his duty was to ensure compliance with LAPD rules and regulations, manage both sworn and civilian staff, and ensure the safety of inmates. AR 127.

An employee must be on duty to get paid. AR 157. Roll call was at 6:30 a.m. every morning and the employees pass around the sign-in sheet to sign. AR 138.

Jackson arrived over an hour after roll call on March 18, 2018. AR 138. At that point, the Watch Commander would have collected the sign-in sheet and have it in his office. AR 138-39. Jackson would have had to go to the office and request the sign-in sheet to sign in. AR 139. Balzano has never refused an employee from signing in. AR 139-40. He did not know if Jackson signed in that day, although it is technically possible for someone to work a shift without signing in. AR 138-39.

Balzano heard the conversation at the Watch Commander’s office between Jackson and Martinez after he (Balzano) was called into the office by Martinez over the radio. AR 129. When he arrived, Jackson was standing in the office and Balzano came into an ongoing conversation between them. AR 129-30.

After the conversation, Martinez explained to Balzano why he was called in to the office. AR 130. Jackson had requested to sign in for work that day. AR 130. Martinez wanted Balzano present because he (Martinez) was uncomfortable having the conversation alone with Jackson because he had been gone from work for an extended period. AR 130.

Balzano was present for the last few minutes of the conversation. AR 130-31. Balzano heard Martinez trying to inquire about Jackson’s duty status and whether he had documents that showed his status. AR 129. Jackson did not say he was sick, Martinez did not tell him he could go home or not work, and Jackson did not ask for permission to go home sick. AR 131-32. At the very end, Jackson mumbled under his breath that he either had a doctor’s note or was getting one. AR 134-35.

Martinez said something about Jackson inquiring with the IOD Coordinator. AR 151. The IOD Coordinator manages both workers’ compensation and FMLA issues. AR 172. Balzano is not sure why Martinez told Jackson that he needed to talk to the IOD Coordinator to confirm his duty status before reporting to work. AR 150. Jackson had been off work for several weeks prior to March 18 and Balzano assumed that Martinez was not comfortable with Jackson reporting to work without any documentation for his extended absence. AR 150. The IOD Coordinator was not at the MDC. March 18, 2018 was a Sunday, and the IOD Coordinator does not work on Sundays. AR 150-51. Martinez was still trying to figure the situation out. AR 151. If Jackson had not abruptly left, Martinez likely would have asked Jackson to step outside to let Martinez and Balzano discuss options. AR 151. No one told Jackson to stay put while Balzano and Martinez discussed the situation. AR 171.

Lt. Hernandez directed Martinez and Balzano to perform a welfare check on Jackson. AR 135, 153. They did so and Balzano saw Jackson at his own home at about 10:00 a.m. AR 135-36. When they arrived, Jackson seemed visibly upset and agitated but remained cooperative. AR 135. They asked him questions about what had happened and if he was okay. AR 135, 157. They were going to place him on duty and direct him to come back to work. AR 157. Jackson provided a doctor’s note dated March 18 at 9:10 or 9:15 a.m. excusing him from work for the day. AR 136. Jackson became upset again and asked if they were going to make him come back to work even though he had the doctor’s note. AR 158. At that point, Balzano and Martinez backed off and called their boss for instructions. AR 158. Based on the note, they were told to leave Jackson be and return to work. AR 158.

If a supervisor asks an employee to bring a doctor’s note on a specific date, the expectation is that the employee will do so on that day. AR 162. At no point at his residence on March 18 did Jackson claim that he was on FMLA leave. AR 162.

The hearing resumed on December 20, 2021 before Hearing Examiner Thomas Friedman (“Friedman”). AR 201-02. In advance of the hearing, Jackson submitted exhibits. AR 601-05. At the hearing, the Department objected to Jackson’s exhibits on relevance grounds. AR 228. There was no express ruling on the objection. See id.

On March 10, 2018, Sgt. Martinez was the supervisor assigned to the Watch Commander staff at the MDC. AR 208. Watch Commander Sgt. Stovell (“Stovell”) mentioned that Jackson was not at work. AR 208. Jackson’s absences were a combination of sick days and days off. AR 208. Stovell was concerned about Jackson’s absences and said that someone needed to check on his welfare. AR 208.

Martinez and another employee went to Jackson’s house for the welfare check. AR 209. When asked about his absences, Jackson attributed them to illness. AR 209. Martinez ordered him to provide a medical note for his absences upon his return. AR 209. Jackson acknowledged that he understood. AR 209. As Martinez was about to leave, Jackson’s physical condition and they way he presented himself caused Martinez to ask if he needed an ambulance. AR 209-10. Jackson refused, but the order for Jackson to bring a note on his next workday stood. AR 209.

Martinez returned to the MDC and told Sgt. Stovell that he gave Jackson an order for a medical note. AR 209-10. The order was based on Manual section 3711.70, which requires all civilian employees to bring a doctor’s note after an absence longer than four days. AR 210.

On March 18, 2018, Martinez was the Watch Commander and Balzano was his Assistant Watch Commander. AR 211. Jackson was on the lineup for that day but was not present at 6:00 a.m. roll call. AR 212.

At approximately 7:35 a.m., while Martinez was meeting with other officers, Jackson presented himself in the Watch Commander’s office in an attempt to start his shift. AR 212. He was not in full duty uniform. AR 213. He was in some athletic shirt instead of uniform and did not present himself in a way that is appropriate for the workplace. AR 213-14. There was some concern that Jackson was under the influence of medication or other substance. AR 213. He speech was slurred, his hands or person was shaking, and his eye movements were an issue. AR 213. He was not presentable for work. AR 213.

Martinez asked Jackson if he had met with the Watch Commander, the IOD Coordinator, or any member of the staff to present his medical note. AR 212. He also asked Jackson if he was cleared for duty, and if there was any disposition of the order Martinez had given him the last time they met. AR 212. Jackson responded that he did not meet with the Watch Commander or the IOD Coordinator, and that he had a doctor’s note in his car. AR 213-14. He made other statements that were mumbled and unintelligible. AR 214. Martinez could not figure out what he was trying to say, which was concerning. AR 215.

At that point, Jackson attempted to continue his day, but Martinez needed to deal with these issues and called Balzano back into the office to be present. AR 213. At that point, Jackson had left the office and officers began to look for him through the building and radio to see if anyone had seen him. AR 213, 215. When Martinez issued a facility-wide broadcast, the front desk told him that Jackson walked out of the building. AR 215. Martinez never approved his departure. AR 218. A jail is a secure facility, so not knowing where someone in Jackson’s condition and with his current appearance raised concerns. AR 215-16.

Jackson did not mention FMLA. AR 216. Once he left the building, Martinez asked off-duty staff to let him know if Jackson was on FMLA leave because that would affect what happened next. AR 216. Martinez called an off-duty lieutenant and reviewed the timekeeping books and found no record that Jackson was on FMLA leave. AR 218.

Martinez notified Lt. Hernandez about what happened. AR 218. At this point, the staff was concerned about Jackson’s health and well-being. AR 220. He was left several voicemails with instructions to return to the facility, provide a doctor’s note, and say where he was. AR 220.

Martinez went to check on Jackson and found him at home. AR 220. The note Jackson provided was only for that day’s absence, not his earlier absences. AR 222. The concern became whether he was physically all right or had any issues that they needed to know about or help him address. AR 222. The conversation was short. Since he had a doctor’s note for that day, Martinez asked if he wanted to take a sick day and Jackson agreed. AR 222. Martinez ordered Jackson again to present a doctor’s note for the previous days. AR 222. Martinez left without answers to any of the concerns he held. AR 222. Martinez did not recall if Jackson said anything about FMLA leave. AR 223.

Jackson reported for duty the next day without any mention that he was sick. AR 222-23.

Jackson was familiar with a Department policy requiring him to bring a doctor’s note after four days of being sick, if he is not IOD. AR 258. When Martinez performed a welfare check on March 10, 2018, Jackson told him that he was sick and promised to bring a doctor’s note when he returned to work. AR 258.

Jackson’s medical condition does not allow him to give 30 days’ notice of the need for medical leave. AR 260. If Jackson had the paperwork he needed on March 10, it would not have been practical to advise Martinez that he had an FMLA leave request in the works. AR 260. Jackson assumed that Martinez understood that when he said he has a doctor’s note, a FMLA leave covered that. He did not think he needed to refer to the FMLA by name. AR 260.

On March 18, 2018, Jackson was fine until the confrontation with Martinez at the facility. AR 270. After Jackson left the worksite, he felt his condition flare up and went to the doctor, who advised him to take the day off. AR 270. Jackson never showed his FMLA paperwork to Martinez because Martinez had no authority for FMLA leave. AR 270. Jackson told Martinez about it without using the “buzzword” FMLA, but Martinez told him to talk to the IOD Coordinator, who also is the FMLA coordinator, and she was off that day. AR 270-71. It made no sense to give Martinez the FMLA paperwork. AR 271.

Before March 10, 2018, Jackson did receive a comment card for failure to return to his workstation form a test everyone took at a high school. AR 278. But the MOU says that NTCDs are not considered disciplinary. AR 278. Jackson received Comment cards for 45-minute tardiness on September 9, 2012 and for failure to show at roll call on August 16, 2016. AR 279.

On December 22, 2021, Jackson filed a post-hearing brief. AR 458-89. He asserted that he did not sign in on March 18, 2018 because he was not on duty, which is when a sign-in is required by Jail Manual section 1/193. AR 475. Even if he was tardy on March 18, 2018, his history did not demonstrate excessive tardiness. AR 482. Under Jail Manual section 1/181, there must be at least three instances within a deployment period or four-week period and three tardy incidents may necessitate an NTCD. AR 482. LAPD tried to establish a pattern of tardiness based on NTCDs and comment cards, but MOUs and Department rules make it clear that NTCDs and comment cards are not disciplinary in nature. AR 483-84. He also is currently disputing the validity of one of the NTCDs. AR 484.

The attempt to treat tardiness on April 18 and 19, 2018 as the first offense and tardiness on March 18, 2018 as the second offense violates the principles and purpose of progressive discipline. AR 485-86. Finally, if he was tardy in March 2018, his performance evaluation for that year would not have positive comments and a score of “Meets Standard” for Work Habits. AR 488.

On February 20, 2019, Capt. Solano ordered Jackson to undergo a psychiatric evaluation at LAPD’s Behavioral Science Services. AR 489. This was part of an attempt to have Jackson declared medically unfit for duty due to the alleged misconduct. AR 489. Behavioral Science’s report shows that Jackson was not medically unfit and took issue with Capt. Solono’s order for an emergency evaluation for an incident almost a year earlier. AR 489.

On January 4, 2022, the Department filed its post-hearing brief. AR 447-57. The Department asserted that Jackson did not express concern about the reworded allegations when he signed the Notice of Discipline. AR 448. Even if this presents a Skelly concern because Jackson was denied the right to respond, he received a full and fair hearing before the Hearing Examiner that cured this defect and made it moot. AR 449. Among other arguments, the brief cited Manual section 614.90, which states that shoes shall be center-laced style with plain tip toes and black with a smooth finish in support the second allegation. AR 452. Jackson was wearing dirty blue and white tennis shoes, which was not appropriate if he was asking to sign into work on the timesheet and report for duty. AR 452. The penalty for a first offense of this rule is oral warning to five days of suspension. AR 452.

On February 10, 2022, Hearing Examiner Friedman issued his report. AR 398-404. The four counts were that on March 18, 2018, while on duty, Jackson (1) reported late to his duty assignment, (2) failed to wear an official LAPD approved uniform, (3) left the work site without approval, and (4) failed to provide a doctor’s note when directed. AR 399.

Although Jackson had no prior discipline, he had prior NTCDs for tardiness. AR 399.

The Hearing Examiner concluded that the Department fully met the provisions of Skelly. AR 400. The parties stipulated to admission of all physical evidence. AR 400.

Capt. Solano testified that he personally served Jackson with the Skelly package on February 20, 2019. AR 400. Jackson had a history for reporting fate for his shift. AR 400. Based on his review of the charges in totality, Solano felt that a ten-day suspension was reasonable and appropriate and complied with LAPD disciplinary guidelines. AR 400. His demeanor and the logic behind his testimony added to his credibility. AR 400.

Sgt. Balzano testified that he was the Assistant Watch Commander on March 18, 2018 when Jackson reported to work 90 minutes late, without the proper uniform, and without the required doctor’s note. AR 400. Jackson was disheveled, in uniform shirt and pants but with tennis shoes and a dirty white undershirt showing. AR 400. Balzano met Jackson to determine if Jackson was medically fit to return to duty and had the required note. AR 400. Jackson left the worksite without permission and without responding to the inquiries. AR 400. When Balzano realized this, he made a welfare check at Jackson’s house, where Jackson was very upset and agitated. AR 400. Although Jackson was to return for work with a doctor’s note for earlier absences and take a drug test, Jackson did not return to work that day. AR 401. Balzano’s demeanor and the logic behind his testimony added to his credibility. AR 401.

Sgt. Martinez testified that, as the supervisor, he went with Balzano for a welfare check on Jackson. AR 401. During that check, Jackson was ordered to provide a doctor’s note for absences from January to February 2018. AR 401.

On March 18, 2018, Jackson arrived 90 minutes late, without the proper uniform, and without the required doctor’s note. AR 401. Based on Martinez’s expertise from drug recognition courses, Jackson appeared under the influence because of his lacking communication skills, shaking hands, and other signs. AR 401. These signs contributed to the decision to perform a welfare check. AR 401. Jackson did not have permission to leave the jail, but he did so. AR 401.

Martinez further testified that Jackson never mentioned FMLA leave to him prior to April 2018. AR 401. The doctor’s note that Jackson eventually presented was not for the period of January and February 2018 as requested. AR 401. Martinez’s demeanor and the logic behind his testimony added to his credibility. AR 401.

Jackson testified that he was on sick leave for seven days from February 26 to March 10, 2018, and knew that he would need a doctor’s note upon return. AR 401. Jackson also knew that Martinez has ordered him to provide one. AR 401. Jackson admitted that he did not inform anyone about his application for FMLA leave until he submitted it on April 23, 2018. AR 401.

Jackson admitted that he was late to roll call on March 18, 2018, but that was because he was there to file papers and not to work. AR 401. He was in civilian clothing and never received instructions not to leave the building. AR 401. Jackson did not file the papers that day as planned. AR 401. Jackson testified that FMLA leave should be retroactive even as he did not file the paperwork until 30 days after the incident. AR 402.

Jackson claimed he did not receive proper notice under Skelly until service of the Notice of Discipline. AR 402.

The Hearing Examiner found that Jackson’s demeanor and the logic behind his testimony suggested a degree of non-credibility. AR 401. He also found most of the testimony unrelated to the violations and suspension at issue. AR 402.

The Hearing Examiner recommended that the Board uphold all four counts against Jackson. AR 403. As to the first, although Jackson denies that he appeared 90 minutes after roll call for work, two LAPD officers testified that he was dressed in an assemblance of a uniform. AR 403. He clearly reported to work. AR 403.

As to the second, Martinez and Balzano testified that Jackson wore disheveled clothing and non-conforming footwear, and Jackson’s excuse was not credible. AR 403.

As to the third, given that Jackson reported for work, he needed permission to leave the worksite before his shift ended. AR 403. He did not have this permission. AR 403. Instead, he left the building without permission. AR 403.

As to the fourth, Jackson admitted that he needed a doctor’s note after his prolonged absence and that Martinez had ordered him to provide one. AR 403. Although Jackson testified that he thought his FMLA leave superseded this requirement, he did not file the FMLA paperwork for 30 more days, which looks like an afterthought. AR 403.

Most of Jackson’s arguments and testimony concerned events well after March 18, 2018 and were red herrings. AR 403.

Based on the upheld claims, the ten-day suspension as discipline is in line with LAPD disciplinary policy and the severity of the actions at issue. AR 403-04.

The Hearing Examiner recommended that the Board find that the allegations against Jackson were true, that the Department complied with Skelly requirements, that the Department complied with disciplinary procedures and process in its personnel manuals, and that the evidence satisfied the Department’s burden and substantiates all four allegations. AR 404. The Board should sustain the four counts against Jackson and the ten-day suspension, effective May 12, 2018. AR 404.

On February 17, 2022, the Board gave notice that it would consider the Hearing Examiner’s report on March 10, 2022. AR 405.

On February 27, 2022, Jackson filed Exceptions to the Hearing Examiner’s report. AR 426-46. Among other things, Jackson reiterated his argument that NTCDs and comment cards do not qualify as discipline. AR 428. Hearing Examiner Friedman also did not list which of Jackson’s exhibits were admitted at the December 20, 2021 hearing. AR 429-30. Friedman also did not discuss whether the parties stipulated to compliance with Skelly, and instead determined that Skelly was met without any substantive discussion of it. AR 430-31.

At the meeting, the Board confirmed that it received and reviewed all of Jackson’s exhibits. AR 336. The Board voted unanimously to find that the Department met all Skelly due process provisions (AR 362-63), uphold the four charges (AR 363-66), and sustain the ten-day suspension (AR 366-67). The Board memorialized its decision in a notice to Jackson on March 14, 2022. AR 396.

On April 6, 2022, Jackson filed a Demand for Reinstatement from Suspension per City Charter section 1017. AR 372, 394. On April 15, 2022, Personnel Department General Manger Dana Brown recommended that the Board deny the demand. AR 371. The Board adopted the recommendation on April 28, 2022. AR 370.

Petitioner Jackson contends that (a) Hearing Examiner Friedman’s findings[6] are not supported by the weight of the evidence and (b) he failed to proceed in the manner required by law.

All employees who arrive at their assigned workstation after the Watch Commander or Watch Supervisor has begun roll call will be considered tardy. AR 709, RJN Ex. E (Jail Manual §1/181). All employees must document their work hours, either on a Daily Field Activities Report (“DFAR”) or a sign-in log. AR 710, RJN Ex. F (Jail Manual §1/193). The employee must complete these logs by hand with the Start and End of Watch times as well as all activities outside of the assigned location. AR 710, RJN Ex. F (Jail Manual §1/193).

The principal issue in this case is whether Jackson reported for duty on March 18. Jackson arrived for his scheduled shift one-and-a-half hours late. He contends that he was not reporting for duty but rather showed up to his worksite to submit FMLA paperwork. Pet. Op. Br. at 1-2.

Jackson argues that the Board’s finding of guilt on Count 1 is not supported by the evidence because it is based on the unfounded assertion that he arrived late to his duty assignment on March 18, 2018. Sgt. Balzano testified that employees must be paid working hours to be considered on duty. AR 156-57. The Jail Manual requires all employees reporting for duty to sign the daily sign in log with their own hand. AR 710. When an LAPD employee returns to duty from a non-work-related illness or injury, the employee's supervisor is required to complete the Non-Occupational Sick or Injury Report (Form 01.30.00) and document the employee’s return to duty date. AR 564. Pet. Op. Br. at 10-11.

There is compelling evidence that Jackson was reporting for duty on March 18, 2018.

First, Jackson was in uniform, albeit without the correct shoes and with a dirty t-shirt showing. As the City argues, the fact that he was wearing everything except his work boots indicates an intent to work his shift and not simply speak with someone regarding his FMLA.

Second, Sgt. Martinez testified that Jackson showed up at approximately 7:35 a.m. in an attempt to start his shift. AR 212. Jackson never said anything about FMLA leave. AR 216. In his interview, Martinez said that Jackson apologized for being late and said he did not know the marathon was going on and it closed down the streets. AR 700. The Hearing Examiner found Martinez to be credible based in part on his demeanor, which this court cannot observe in reviewing a transcript. AR 401.

Third, Jackson did not appear at the MDC on March 18 with any FMLA paperwork or even a doctor’s note. If he was there for the purpose of submitting FMLA paperwork, he would have had it in hand. The fact that Jackson some days later submitted FMLA paperwork, with his signature dated in January does not undermine this fact.

Fourth, Jackson said he had a doctor’s note in the car. AR 213-14. Yet, he clearly did not. When he could not produce the required doctor’s note, he left the worksite without permission and went to his physician to secure a note excusing him for the day. The Hearing Examiner found Jackson partly not credible based in part on his demeanor; the claim that he had a doctor’s note in his car would be an issue where Jackson lacked credibility. AR 401.

Fifth, Martinez and Balzano told Jackson at his home that they were going to place him on duty and direct him to come back to work. AR 157. This upset Jackson because he now had a doctor’s note for that day, and they rescinded this direction after talking with a superior. AR 158. From these facts, it is clear that Martinez and Balzano both believed that Jackson had reported to work that day and left without permission.

In sum, the weight of the evidence supports the finding that Jackson arrived one-and-a-half hours late for his scheduled shift on March 18, 2018.

Jackson contends that his position is supported by the fact that he was paid 12 hours of sick leave hours for March 18, 2018, which are not on-duty working hours. AR 564, 707–08. Balzano testified that Jackson did not sign the duty log on March 18, 2018 (AR 138-40) and he and Martinez were not “comfortable with Jackson reporting to work that specific day” because he first needed to be medically cleared by the IOD Coordinator, who was not working that Sunday. AR 150. The “NON-OCCUPATIONAL SICK, REVISIT, OR INJURY REPORT” corroborates that Jackson was on sick leave beginning on February 26, 2018, with a return to duty date of March 19, 2018. AR 564. Pet. Op. Br. at 11.

Jackson has cobbled together an unfair conclusion based on after-the-fact documents. Balzano testified that Jackson arrived over an hour after roll call on March 18, 2018. AR 138. Jackson did not say he was sick. AR 131-32. Balzano was not sure why Martinez told Jackson that he needed to talk to the IOD Coordinator to confirm his duty status before reporting to work. AR 150. However, Balzano did not testify that he and Martinez were not comfortable with Jackson reporting to work without being medically cleared by the IOD Coordinator. Rather, they were trying to figure out Jackson’s status so that he could report to work that day.

Martinez made this clear. He testified that, at approximately 7:35 a.m., Jackson presented himself in the Watch Commander’s Office in an attempt to start his shift. AR 212. Martinez asked Jackson if he had met with the Watch Commander, the IOD Coordinator, or any member of the staff to present the medical note Martinez previously had ordered him to provide. AR 212. He also asked Jackson if he was cleared for duty, and if there was any disposition of the order Martinez had given him the last time they met. AR 212. Jackson responded that he did not meet with either the Watch Commander or the IOD Coordinator, and that a doctor’s note was in his car. AR 213-14. Thus, both Martinez and Balzano believed that Jackson was reporting for duty and not contending that he was on sick leave.

The documents relied on by Jackson were created after-the-fact for different purposes and do not affect the conclusion that he reported for work on March 18, 2018. On approximately March 19, 2018, an LAPD supervisor certified in a Non-Occupational Sick, Revisit, or Injury Report that showed that Jackson was off sick leave from work from February 26 to March 18, 2018, inclusive. AR 564, 628. This statement was based in part, however, on Dr. Cheh’s note created at 9:15 a.m. on March 18 that was attached to the report. AR 564, 628. LAPD’s Daily Worksheet Portrait for March 18, 2018, generated three days later on March 21, 2018, shows that Jackson was out sick for 12 hours for a shift that began at 6:30 a.m. and ended at 7:00 p.m. AR 659. This also was based on the fact that Jackson was excused from duty by Dr. Cheh’s note. Finally, Jackson’s payroll information shows that he expended 12 hours of his 100% sick time for the pay period from March 18 to March 31, 2018. AR 707-08. This sick time also was based on his March 18 excuse from work in Dr. Cheh’s note.

In reply, Jackson argues that the record confirms that he had called in sick to the Watch Commander’s Office on March 18, 2018 prior to his arrival at the work site, and that he went to the Watch Commander’s Office to discuss what steps he needed to take in order to return to duty from his extended sick leave. AR151, 699. Reply at 3.

His citations do not support this position. In his interview, Sgt. Martinez only stated that Jackson was not at roll call that morning. AR 699. While he also said that “it was noted on the log that he had called in sick”, that notation was made only after Martinez and Balzano went to Jackson’s home and were shown a doctor’s note dated that day with a 9:15 a.m. time well after Jackson spoke to them in the Watch Commander’s office. The Daily Worksheet Portrait for March 18, 2018, generated three days later on March 21, 2018, shows that Jackson was out sick for 12 hours for a shift that began at 6:30 a.m. and ended at 7:00 p.m. AR 659. A log created after his doctor’s note was accepted does not aid Jackson’s position.

Jackson’s citation of Sgt. Balzano’s testimony also does not aid him. Balzano merely testified that he heard Martinez trying to inquire about Jackson’s duty status and whether he had documents that showed his status. AR 129. Jackson did not say he was sick, Martinez did not tell him he could go home or not work, and Jackson did not ask for permission to go home sick. AR 131-32. Martinez said something about Jackson inquiring with the IOD Coordinator. AR 151, 172. But this statement was made after Jackson had been asked about his status and does not support a conclusion that he was there to discuss the steps necessary to return to duty in the future.

Neither citation supports a conclusion that Jackson called in sick before roll call and went to the Watch Commander’s office to find out what he needed to do to return to duty on a future date.

Finally, Jackson argues that, assuming arguendo he arrived late to his duty assignment on Mach 18, 2018, the Jail Manual states that one incident of tardiness within a four-week period does not qualify as disciplinary misconduct. AR 709. Pet. Op. Br. at 11.

The City does not respond to this point and Jackson appears correct. Three or more instances of tardiness in a Deployment Period or any four-week period constitutes excessive tardiness. AR 709, RJN Ex. E (Jail Manual §1/181). While he was tardy on March 18, it appears that he may not be disciplined for that tardiness without multiple tardiness within a four-week period. As a result, it is unclear whether the weight of the evidence supports Jackson’s guilt on Count 1.

2. Count 2: Jackson Failed to Wear His Official LAPD-Approved Uniform While on Duty

The evidence establishes that Jackson did not arrive to work on March 18, 2018 wearing his full Department-issued uniform. Sgt. Martinez testified that Jackson was not wearing his work-issued boots along with the rest of the uniform. AR 213-14. In his interview, Martinez also said Jackson was disheveled and wearing casual clothes. AR 699-700.

Jackson’s only defense to this charge is that he was not reporting for duty on March 18, but the weight of the evidence shows that he was. Accordingly, the weight of the evidence supports the finding that Jackson is guilty of Count 2.

Jackson argues that, after Martinez advised him that he needed to speak to the IOD Coordinator, he had no reason to remain at MDC, so he left. Balzano testified that Jackson needed to talk to the IOD Coordinator to confirm his duty status before reporting to work. AR 171. No one told Jackson to stay while Martinez and Balzano discussed the situation. AR 171. Therefore, Count 3’s allegation that he left the worksite without approval on March 18 did not qualify as disciplinary misconduct. Pet. Op. Br. at 1-2; Reply at 4.

This argument is untenable. Martinez testified that he asked Jackson if he had met with the Watch Commander, the IOD Coordinator, or any member of the staff to present his medical note. AR 212. He also asked Jackson if he was cleared for duty, and if there was any disposition of the order Martinez had given him the last time they met. AR 212. Jackson responded that he had not met with anyone and that he had a doctor’s note in his car. AR 213-14. Jackson attempted to continue his work day, but Martinez needed to deal with these issues and called Balzano back into the office to be present while he did so. AR 213. At that point, Jackson had left the office and officers began to look for him through the building and radio to see if anyone had seen him. AR 213, 215. When Martinez issued a facility-wide broadcast, the front desk told him that Jackson walked out of the building. AR 215. Martinez never approved Jackson’s departure. AR 218.[7]

Balzano testified that he was present for the last few minutes of the conversation. AR 130-31. Balzano heard Martinez trying to inquire about Jackson’s duty status and whether he had documents that showed his status. AR 129. Jackson did not say he was sick, Martinez did not tell him he could go home or not work, and Jackson did not ask for permission to go home sick. AR 131-32. At the very end, Jackson mumbled under his breath that he either had a doctor’s note or was getting one. AR 134-35.

Martinez said something about Jackson inquiring with the IOD Coordinator. AR 151. Balzano is not sure why Martinez told Jackson that he needed to talk to the IOD Coordinator to confirm his duty status before reporting to work. AR 150. Jackson had been off work for several weeks prior to March 18 and he assumed that Martinez was trying to determine not comfortable with Jackson reporting to work because of the extended absence without any documentation. AR 150. Martinez was still trying to figure the situation out. AR 151. If Jackson had not abruptly left, Martinez likely would have asked Jackson to step outside to let Martinez and Balzano discuss options. AR 151. Balzano admitted that no one told Jackson to stay put while Balzano and Martinez discussed the situation. AR 171.

It is obvious that Jackson, who present to be on duty, left the building without permission while Martinez was trying to figure out what to do. Both Martinez and Balzano thought Jackson was getting a doctor’s note from his car and did not know he left work. Martinez had to have officers look for him through the building, radio to see if anyone had seen him, issued a facility-wide broadcast. AR 213, 215.

As the City argues (Opp. at 12-13), Jackson’s claim that he had “no reason to remain at MDC” because he needed to speak with the IOD Coordinator who was not on site that day did not entitle him to leave. He never informed anyone in his chain of command that he did not believe he needed to stay at the worksite, and never asked to leave. There is no evidence that he was excused from work that day after attempting to report for the start of his shift. Jackson did not possess the authority to make that decision on his own or authorize himself to leave. Accordingly, the weight of the evidence supports the finding that Jackson is guilty of Count 3.

On March 10, 2018 when Sgt. Martinez performed his first welfare check, he ordered Jackson to present a medical note relating to his absences and to check in with either the Watch Commander or IOD Coordinator at MDC upon his return to work. Per Manual section 3711.70, all civilian employees are required to bring a doctor’s note after being out sick four or more days. Despite acknowledging that he understood the order and that he would bring in a doctor’s note upon his return to work, Jackson failed to provide the doctor’s note when he attempted to report on March 18, 2018. AR 209-10, 212-14 (Martinez testimony); AR 258 (Jackson testimony). Opp. at 13.

Jackson argues that, after leaving the worksite, he felt the symptoms of his serious health condition flaring up and he went to the hospital for evaluation and treatment, where his treating physician provided him with a work status letter medically placing him off work for March 18, 2018. AR 568. Pet. Op. Br. at 1-2.[8] Balzano testified that he (Jackson) provided a doctor’s note on March 18 (AR 632), “[a]nd then at that point, because now there was a doctor's note involved and saying he was sick and all these things, just kind of backed off…” AR 158. Upon receiving the doctor’s note, Martinez directed Jackson to bring medical documentation for the other dates of his absence due to illness on his next working day. AR 705. On Jackson’s next working day, March 19, 2018, he submitted his request for FMLA leave to the IOD Coordinator. AR 574–79. The FMLA leave request was approved and retroactively applied Medical Liaisons Office on April 4, 2018. AR 580-84.

Jackson contends that Count 4 was based on an unjustified conclusion that FMLA leave cannot be retroactively applied. 2 CCR section 11091 (a)(6) states in relevant part: “Once given, [FMLA] approval shall be deemed retroactive to the date of the first day of the leave.” AR 712. On April 4, 2018, Jackson’s request for FMLA leave was certified, approved, and retroactively applied by the Medical Liaison’s Office for January 25 through July 24, 2018. AR 580-84. Pet. Op. Br. at 13.

Jackson notes that the stated rationale for Count 4 in the Notice of Proposed Discipline was that, even though Jackson’s request for FMLA was approved for January 25 through July 24, 2018, FMLA could not be retroactively applied, and therefore Count 4 should be sustained. (AR 625. Capt. Solano, who signed the Notice of Proposed Discipline (AR 543), also testified that his decision to sustain Count 4 was based on his belief that FMLA could not be retroactively applied. AR 96. The Hearing Examiner’s report agreed with Capt. Solano’s rationale. AR 403. Administrative bodies can exercise adjudicatory authority only to the extent they are authorized to do so. See, e.g., Brooks v. State Personnel Bd., (1990) 222 Cal.App.3d 1068, 1072. Jackson concludes that the Department acted in excess of its authority by disregarding the City Medical Liaison’s approval and retroactive application of Jackson’s FMLA/CFRA leave. Pet. Op. Br. at 13-14; Reply at 5-6.

Jackson adds that, when an LAPD employee returns to duty from a non-work-related illness or injury, the employee's supervisor is required to complete the Return to Duty section of the Non-Occupational Sick or Injury Report, and document if the employee has provided satisfactory medical certification/doctors note for their absence. AR 564. The Department documented on a Non-Occupational Sick or Injury Report that Jackson had satisfactorily provided medical documentation/doctor’s note for his absences beginning on February 26, 2018 with a return to duty date of March 19, 2018. AR 564. According to Manual section 3/711.80, if Jackson did not provide sufficient medical documentation for his absence, he would have been considered AWOL and not have been paid for his absences due to illness. AR 479. The Department did not charge Jackson with being AWOL because he provided appropriate medical certification. He was paid for his absence using sick leave credits. AR 564, 707–08. Pet. Op. Br. at 12-13.

Unless an employer waives its employees’ notice obligations described herein, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA leave, and the anticipated timing and duration of the leave. AR 711 (2 CCR §11091(a)(1)). Although the employee need not expressly assert rights under the FMLA, or even mention the FMLA to meet the notice requirement, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. AR 711 (2 CCR §11091(a)(1)).

Jackson’s attempt to rely on FMLA leave fails. As the City points out (Opp. at 13-14), Jackson misses the point of Count 4. Jackson received and acknowledged a direct order from his supervisor, Martinez, to provide a doctor’s note when he next reported for duty. Yet, the evidence is clear that Jackson attempted to report for duty on March 18 and did not have the required doctor’s note. Jackson did not mention FMLA leave to anyone at MDC on the morning of March 18, and approval of any FMLA leave on a subsequent date is irrelevant to the inquiry whether Jackson failed to comply with a direct order. Count 4 was properly sustained. Opp. at 13-14.

Jackson’s suggestion that Martinez directed him to bring FMLA documentation for the other dates of his absence due to illness on his next working day lacks evidentiary support. Pet. Op. Br. at 1-2. The page cited by Jackson (AR 705) is from Martinez’s interview and does not support a conclusion that Jackson referred in substance to FMLA leave. In his testimony, Martinez stated that Jackson never mentioned FMLA leave at the MDC and Martinez even checked the records and with a lieutenant to see if Jackson was on FMLA leave. AR 216, 218. When he testified, Martinez could not recall if Jackson said anything about FMLA leave at Jackson’s home. AR 223. However, Martinez stated in his interview that Jackson never mentioned that he was taking FMLA time, either on March 10 or March 18, 2018. AR 705. Even Jackson testified that Martinez only told him to see the IOD Coordinator and did not use the “buzzword” FMLA. AR 271. There is no evidence that Jackson informed Martinez either at the MDC or at his home that he wanted to take FMLA leave.

Nor does Jackson retroactive FLMA leave excuse him from his violation of a supervisor’s order. The documentary evidence shows that Jackson filed an Employee Request for Family or Medical Leave under the FMLA on an unknown date after March 18. AR 574-79. Jackson’s signature on the form is dated January 25, 2018, Dr. Phu Gia Phan’s signature is dated January 30, 2018, and the supervisors’ signatures are dated March 23, 2018 and April 4, 2018. AR 575.

On April 4, 2018, the Medical Liaisons Office issued a response to Jackson’s FMLA request that identified the period of requested leave as January 25 to July 24, 2018. AR 580, 584. It acknowledged that the leave was for a serious health condition that made Jackson unable to perform the essential functions of his job. AR 580. The Medical Liaisons Office found that the leave qualified as FMLA leave, and the City would count it against Jackson’s annual Family/Medical Leave entitlement. AR 582. Jackson’s payroll information shows that for the pay period from March 18 to March 31, 2018, he expended 12 hours of his 100% sick time for the FMLA leave. AR 707-08.

It is true that FMLA leave is retroactively applied. 2 CCR §11091(a)(6) (“Once given, approval shall be deemed retroactive to the date of the first day of the leave.”). AR 712. Jackson’s error lies in his assumption that the retroactive application of any leave can wipe out misconduct occurring during the leave period. It cannot. The retroactivity of FMLA leave serves a different purpose than administrative discipline. If Jackson wanted to rely on FMLA leave to obviate the need for a doctor’s note, he was required to file his leave application before March 18 or notify Martinez of his leave request when he reported for duty on March 18. See 2 CCR §11091(a)(1).

Jackson replies that this is a new legal theory presented for the first time in opposition and has been waived. Dobos v. Voluntary Plan Administrators, Inc., (2008) 166 Cal.App.4th 678, 688; NBS Imaging Systems, Inc. v. State Bd. of Control, (1997) 60 Cal.App.4th 328, 337 ("The superior court erred in granting relief based on a legal theory never presented during the administrative proceedings"). During the administrative proceeding, the Department justified Count 4 (AR 685) based upon the unfounded conclusion that FMLA/CFRA leave could not be retroactively applied. Reply at 4-5.

This is inaccurate. It is true that Capt. Solano testified that he understood that FMLA leave cannot be applied retroactively (AR 96), but it is the Hearing Examiner’s report, adopted by the Board, that is relevant. The Notice of Proposed Discipline stated that the rationale for Count 4 is that Jackson’s FMLA leave request was submitted and approved after the fact of the offense. AR 625. The Hearing Examiner’s report agreed, stating that the FMLA request was not filed until late April 2018, more than 30 days after March 18, and that it looked “like an afterthought.” This rationale is not the same as contending that the FMLA cannot be applied retroactively. Rather, the Hearing Examiner was stating that misconduct cannot be undone by an event that occurs later. That rationale is consistent with the City’s reasoning in its opposition.

Jackson also argues in reply that the Department cannot compel him to see a doctor; it can only deny authorized leave when an employee refuses to provide proof that use of sick leave was justified where a request for such proof is warranted. Reply at 10. Not so. Commanding officers, at their discretion, may require a doctor’s certificate or other proof of illness for sick leave at any time. RJN Ex. D (LAPD Manual §3/711.80). Jackson’s failure to provide a doctor’s note when directed by Martinez was a violation of Department policy. [9]

Accordingly, the weight of the evidence supports the finding that Jackson is guilty on Count 4.

Jackson argues that Hearing Examiner Friedman’s finding of Skelly compliance was an abuse of discretion as both a failure to proceed in the manner required by law and not supported by the weight of the evidence. Under Skelly, supra, 15 Cal.3d at 194, due process requires notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing. Jackson argues that the Department failed to afford him his Skelly rights. AR 684. He timely requested the opportunity to respond to the Department on February 20, 2019. The Department did not provide him the opportunity to respond to the additional charges included in the Notice of Discipline. Accordingly, the employment action was not valid until March 10, 2022, when the Board rendered its decision. Pet. Op. Br. at 14, 16-17; Reply at 8.

Jackson argues that Hearing Examiner Cameron asked during the November 12, 2019 hearing if the parties were willing to stipulate to Skelly compliance and Jackson refused. Hearing Examiner Cameron conducted a factual evaluation (AR 18-19) and determined that the Department failed to meet its pre-disciplinary due process obligations by adding a new charge/charges without providing Jackson notice and a Skelly hearing. Hearing Examiner Cameron asked the parties if they agreed with his rationale that Skelly was violated, and both parties agreed and stipulated to that fact. AR 19-20. Hearing Examiner Friedman presided over the August 4 and December 20, 2021 hearings, but the Skelly issue was never relitigated. His report also does not provide any analysis or cite any evidence in support of his finding that the Department complied with Skelly in violation of Topanga, supra, 11 Cal. 3d at 515. Pet. Op. Br. at 16.

As the City points out (Opp. at 9-10), Jackson is wrong in arguing that Skelly compliance was decided by Hearing Examiner Cameron at the first day of hearing and that both parties stipulated to this fact. After confirming the issue was based on differences in the wording of charges in the Notice of Proposed Discipline and the Notice of Discipline, Hearing Examiner Cameron’s “quick conclusion” was that Counts 1 and 3 were substantially the same, Count 2 appears clearly different, and Count 4 might be different; he needed to “think about that a little bit.” AR 20. Although he noted these differences, Hearing Examiner Cameron did not conclude that a Skelly violation occurred. Nor did the parties stipulate to such a violation. AR 20. Moreover, Hearing Examiner Friedman, not Hearing Examiner Cameron, was the decision maker on Skelly. After presiding over the first day of hearing, Hearing Examiner Cameron was replaced by Hearing Examiner Friedman, who presided over the second and third days of hearing and made the recommendation to the Board in his February 10, 2022 report.

The City further argues (Opp. at 10-10) that Hearing Examiner Friedman’s finding that the Department met its Skelly obligations is supported by the weight of the evidence. Jackson was served with the Skelly packet on February 20, 2018 at the same time that he was served with the Notice of Proposed Discipline. AR 518-88. During his Skelly interview that day, Jackson received notice that he had until March 20, 2019 to provide an oral or written response. AR 588. Jackson acknowledged receipt of all materials, that he had been informed of his right to representation, and that he intended to submit a response. AR 588. Jackson did not respond and, on March 25, 2019, CSD sent Jackson a memo stating that he had failed to submit a response by the March 20 deadline. AR 590.

By itself, this evidence would support a conclusion that Jackson failed to exercise his Skelly rights by timely responding before March 20. However, Jackson correctly points out that the City admitted in its Answer to the FAP that Jackson had a Skelly meeting with Capt. Solono on or about February 20, 2019. FAP, p. 6; Answer, p. 3. The Answer does not state that Jackson intended to respond further after the February 20 Skelly meeting. The Answer’s admission may be consistent with Jackson’s deferral of a response to a date after February 20, but there is at least a potential conflict between the evidence and the City’s admission.

More important, Jackson is correct (Reply at 7) that any failure to respond to the Notice of Discipline by March 20 does not necessarily impact the changes made as a result of the March 7, 2019 intradepartmental memo and reflected in the May 6, 2019 Notice of Discipline. Even though the intradepartmental memo stated that he should be notified (AR 592), there is no evidence that Jackson was served with the changes before he received the Notice of Discipline, or that he was given an additional opportunity to respond to them. The mere fact that he signed the Notice of Discipline on May 6 without objecting to its wording (see AR 448) is of no moment; he had no ability or obligation to object at that time. In fact, the Notice of Discipline expressly instructed Jackson that his means of contesting the discipline was to appeal. AR 684.

Thus, the question is whether there were changes between the Notice of Proposed Discipline and the Notice of Discipline. The Notice of Proposed Discipline that Jackson received from Capt. Solono on February 20, 2019 alleged that on March 18, 2018, Jackson (1) reported late to his duty assignment, (2) while on duty, reported to work unfit for duty, (3) while on duty, left his post without authorization, and (4) while on duty, was insubordinate for refusal to provide a doctor’s note to Martinez as directed. AR 542.

The Notice of Discipline served on or about May 6, 2019 stated that Jackson’s ten-day suspension was based the allegations that on March 18, 2018 he (1) reported late to his duty assignment, (2) while on duty, failed to wear his official Department-approved uniform, (3) while on duty, left his worksite without approval, and (4) while on duty, failed to provide a doctor’s note as directed. AR 515-16.

The City argues that Jackson has failed to prove that the changes are material. A party claiming a Skelly error must demonstrate that he would have achieved a better outcome. Fisher v. State Personnel Board, (2018) 25 Cal.App.5th 1, 20. Jackson cannot show that he would have received a better outcome if had received an opportunity to respond to the revised language. The changes in wording did not change the gravamen of the allegations. Regardless of how the charges are characterized, at bottom Jackson was accused of reporting late to duty, not wearing his required uniform, leaving the worksite without authorization, and failing to comply with an order to provide a doctor’s note. Accordingly, the amendments were inconsequential, the Department’s failure to provide Jackson with an opportunity to respond to the amended Counts 2-4 was harmless, and Hearing Examiner Friedman’s conclusion that Skelly was satisfied is supported by the evidence. Opp. at 10-11.

Jackson argues that the amended Count 2 carried different disciplinary guidelines, standards, and penalties than the original Count 2. The original charge of reporting to work unfit for duty includes reporting while under the influence of alcohol or controlled substances, which as the Notice of Proposed Discipline stated, carries a ten-day suspension to discharge for a first offense. AR 542. The Notice of Discipline changed Count 2 to Jackson’s failure to wear his official Department-approved uniform, which is a violation of Departmental rules and carries discipline only of an oral warning to a five-day suspension. AR 529. Jackson asserts that he was prejudiced by the change because, if he had been provided an opportunity, he could have explained that a ten-day suspension was no longer appropriate because none of remaining charges carried that level of a penalty. Reply at 7-8.

Jackson may or may not have been prejudiced. If the amended Count 2 is materially different than the original Count 2, Jackson was deprived of his opportunity to address it. Jackson’s argument that he could have argued at a second Skelly hearing for a lesser penalty than a ten-day suspension because the more serious Count 2 for reporting to work unfit for duty, which includes the use of alcohol or drugs, was not hanging over his head is a real prospect. This is particularly true since Count 1 for tardiness is not necessarily punishable. See ante.

This issue was not addressed by Hearing Examiner Friedman, who only found that “Skelly vs. Personnel Board was fully complied with” (AR 404) without any analysis in violation of Topanga, supra, 11 Cal. 3d at 515. The Hearing Examiner did not proceed in a manner required by law and the matter must be remanded for a determination whether Skelly was violated, including whether Jackson was notified and given an opportunity to address the amended Count 2 under a Skelly, and what the backpay damages should be if it was.[10]

Jackson contends that the Department failed to proceed in a manner required by law because it failed to follow its own disciplinary policies for excessive tardiness. Pet. Op. Br. at 18.

Employees must report for work as scheduled unless ill, injured, or involved in an emergency. AR 530 (Policies 33.2). Three or more instances of tardiness in a Deployment Period or any four-week period constitutes excessive tardiness. AR 709, RJN Ex. E (LAPD Jail Operations Manual §1/181). The recommended discipline for “frequent or unexcused tardiness” ranges from oral warning to written notice for the first offense, written notice to a ten-day suspension for the second, and a ten-day suspension to discharge for the third. AR 530 (Policies 33.2).

Jackson correctly notes (Pet. Op. Br. at 18-19) that the Department erroneously chose to designate an incident of tardiness occurring on April 18 and 19, 2018 as Jackson’s first offense. AR 742-51. For this first offense, he was punished with an admonishment. AR 751. The Department then designated the March 18, 2018 incident as Jackson’s second offense for excessive tardiness and he was given a ten-day suspension due to “escalating behavior”. AR 617. Plainly, the tardiness offense on April 18-19, 2018 occurred after the March 18, 2018 offense even though it was adjudicated earlier. See AR 742.

Jackson also notes that a MOU, “once adopted by the governing body of a public agency, becomes a binding agreement". Glendale City Employees' Assn., Inc. v. City of Glendale, (1975) 15 Cal.3d 328, 337. Under the applicable MOU, a NTCD is not considered a form of disciplinary misconduct. Per the pertinent MOU between the City and SEIU, a NTCD may be sealed upon the request of an affected employee who has not been involved in any subsequent incidents that resulted in written corrective counseling or other management action for a period of four years from the date the most recent notice was issued or management action taken. AR 714 (MOU 4.2(C)). It is mutually understood that such notice is not a form of LAPD discipline, and a copy is not placed in the personnel folder. AR 714 (MOU 4.2(C)). Similarly, a comment card is not considered disciplinary in nature. As a result, it is not grievable, and an employee may make a written response within 30 days after it is served. AR 713.

Jackson argues that he did not have a history of tardiness and Hearing Examiner Friedman improperly concluded that he had a disciplinary history based upon a prior NTCD. AR 399. However, a NTCD is not considered disciplinary. Jackson points to his evaluations from December 20, 2012 through December 18, 2018, which confirm that he “Meets Standards” in the Work Habits section, including that he “[c]onsistently complies with assigned work schedule….). AR 723-34. Pet. Op. Br. at 9-10.

The City notes that Capt. Solano reviewed the events of March 18 in conjunction with Jackson’s personnel file, commendations, previous NTCDs, and complaint history. Jackson had received prior NTCDs/comment cards for attendance issues. AR 278-79, 570-73. It was Jackson’s second offense for tardiness, and Capt. Solano determined that the appropriate penalty under the civilian guide for discipline would be a ten-day suspension. AR 530. Capt. Solano also considered Jackson’s unfitness for duty given the attire he was wearing, his decision to leave his worksite without approval, which was his second such offense, and his insubordination by failing to provide a doctor’s note. Opp. at 15.

The City concludes that Capt. Solano’s determination of a ten-day suspension was reasonable, grounded in the multitude offenses on March 18, 2018, as well as Jackson’s prior attendance issues, making his late report for duty on March 18 a repeated offense. The ten-day suspension was also within the authorized range of discipline. AR 40, 530. The propriety of an administrative penalty rests within the sound discretion of the agency and that its decision will not be disturbed unless there has been an abuse of discretion. Flippin v. Los Angeles Board of Civil Service Commissioners, (2007) 148 Cal.App.4th 272, 283. Jackson has not shown an abuse of discretion because there is both a rational basis and clear evidentiary support for the ten-day suspension. Opp. at 15.

The City misses Jackson’s point, which is that Capt. Solono and the Department improperly considered NTCDs and comment cards in violation of the MOU and improperly relied on a subsequent tardiness offense to make March 18 a second offense. He may well be wrong about whether consideration of NTCDs and comment cards for disciplinary purposes violates the MOU, but the court does not know this to be true because neither the Hearing Examiner nor the City addressed it. Jackson is certainly is correct that the March 18 tardiness is the first offense and the April 18 tardiness is the second offense, not the other way around.

Apart from whether it was a first or second offense, it is unclear whether Jackson was even guilty of tardiness. See ante. Three or more instances of tardiness in a Deployment Period or any four-week period constitutes excessive tardiness. AR 709, RJN Ex. E (Jail Manual §1/181). While Jackson was tardy on March 18, it appears that he may not be disciplined for that tardiness without multiple tardiness within a four-week period. As a result, it is unclear whether the weight of the evidence even supports Jackson’s guilt on Count 1.

It may be that the ten-day suspension is justified even without Count 1. The recommended discipline for Count 2, for not wearing a Department-issued uniform in violation of departmental rules, is an oral warning to a five-day suspension. AR 529. Pet. Op. Br. at 19. The recommended discipline for Count 3, leaving an employee’s assigned work location without proper approval is written notice for the first offense, one-day suspension for the second, and ten-day suspension for the third. AR 530 (Policies 33.2). The recommended discipline for Count 4, refusal to cooperate with supervisors or management in the performance of duties, ranges from six-day suspension to discharge for the first offense. AR 530 (Policies 33.2). Depending on the properly considered disciplinary history, these multiple violations may support the ten-day suspension. Or they may do so in combination with proper consideration of Count 1. But the court cannot say this is true as a matter of law.

The Hearing Examiner failed to proceed in the manner required by law in considering Jackson’s disciplinary history and the requirements for Count 1. [11]

The FAP is granted in part. A writ shall issue remanding the case to the Board to (a) address whether Jackson can be disciplined for Count 1 if Jail Manual §1/181 requires three or more instances of tardiness in a Deployment Period or four-week period, (b) if Jackson can be disciplined for Count 1, reconsider the penalty using Jackson’s permissible disciplinary history, and (b) determine whether Skelly was violated for the amended Count 2 and if so, whether Jackson was prejudiced by not being able to argue for a lesser penalty because there was no charge for a violation involving alcohol or drug usage, and determine any backpay award if Skelly was violated. Upon remand, the Board has discretion to take additional evidence on these issues or rely solely on the existing record.

Petitioner Jackson is ordered to prepare a proposed judgment and writ of mandate, serve them on the City’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for April 6, 2023 at 9:30 a.m.

[1] Jackson requests judicial notice of (1) City Charter sections 1016 and 1017 (RJN Exs. A-B); (2) Board Rule 12 – Disciplinary Hearings (RJN Ex. C); (3) LAPD Manual (“Manual”) Volume 3, section 711.80, Proof of Illness for Paid Sick Leave (RJN Ex. D); (4) LAPD Jail Operations Manual (“Jail Manual”), Volume 1, sections 181 and 193 (RJN Exs. E-F); (5) Memorandum of Understanding #18 (“MOU”), Article 4.2(C), Notice to Correct Deficiencies (RJN Ex. G); (6) Williams v. City of Los Angeles, (1990), 220 Cal.App.3rd 1212 (RJN Ex. H); (7) SPB Precedential Dec. Nos. 04-02 and 92-03 (RJN Exs. I-J); and (8) a template Hearing Examiner’s Report, Attachment G to the Board’s Hearing Examiner Manual (RJN Ex. K).

The requests are granted for RJN Exs. A-C. Evid. Code §452(b), (c). The requests are granted for RJN Exs. I-J under Evid. Code section 452(c). The requests are denied for RJN Exs. D-G and K as they are not official acts under Evid. Code section 452(c). There is no need to judicially notice California case law (RJN Ex. H).

[2] Jackson cites to AR 567 as evidence that, shortly after his visit to Dr. Cheh’s office, Sgt. Martinez and Balzano arrived at his house with orders to take him back to work in a patrol car until he gave them Cheh’s letter. Pet. Op. Br. at 2. AR 567 is an incident log with insufficient details to confirm this fact.

[3] For convenience, the court will refer to FMLA and/or CFRA collectively as “FMLA”.

[4] On January 24, 2019, Capt. Solano issued a Notice of Proposed Discipline sustaining the allegation that on April 18 and 19, 2018, Jackson reported late to his duty assignment. AR 749-50. The Notice of Proposed Discipline stated that Jackson’s failure was part of a pattern of conduct beginning in September 2012. AR 749. Because the recommended discipline for a first offense of this type is a warning to written notice, the recommended discipline was admonishment. AR 751.

[5] A Complaint Adjudication Form signed by the group and bureau commanding officers on February 20 and 22, 2019 concurred with CSE Commanding Officer Solono’s recommendation. AR 586.

[6] For convenience, the court will refer to Hearing Examiner Friedman’s recommended findings and not the Board’s findings.

[7] Similarly, Sgt. Martinez stated in his interview the he asked Jackson again if he had a note, and Jackson said it was in his bag and walked out to get it. AR 701. Sgt. Martinez later learned that Jackson had left the facility without approval or permission. AR 701.

[8] Jackson’s contentions about his actions after leaving MDC are unsupported by any evidence other than that he obtained the letter from Dr. Cheh at Kaiser Permanente relieving him from work on March 18, 2018. AR 568.

[9] Jackson contends that the Department failed to proceed in the manner required by law by failing to properly follow Manual section 71180 (proof of illness for paid sick leave) and by sustaining Count 1 in violation of Jail Manual section 1/181 concerning excessive tardiness. Pet. Op. Br. at 19. These issues concern the weight of the evidence, not a failure to proceed as required by law.

[10] Jackson correctly states that the remedy for a Skelly violation when a discharge or suspension is ultimately upheld on administrative appeal is backpay from the date of discipline imposed by the agency until it is upheld on administrative appeal. Barber v. State Personnel Board (1976) 18 Cal.3d 395, 402; Davis v. Los Angeles Unified Sch. Dist. Pers. Comm'n, (2007) 152 Cal.App.4th 1122, 1134. Pet. Op. Br. at 15.

[11] Jackson argues that his exhibits (AR 686–808), which were submitted over four months before the December 20, 2021 hearing (see AR 601-05), were designated as rejected exhibits by the City. Board Rule 12.6 provides that each party shall have the right to introduce exhibits. Board Rule 1.27 states that “Any relevant evidence shall be admitted…”. An administrative agency is bound by its own rules and regulations. Bonn v. California State University, Chico, (1979) 88 Cal.App.3d 985, 990. Pet. Op. Br. at 17-18.

The City’s mischaracterization of Jackson’s exhibits is not significant. Hearing Examiner Friedman read Jackson’s list of these exhibits into the record by during the December 20, 2021 hearing (AR 224, 226-28), and his report states that the parties stipulated to “the admission of all written evidence”. AR 400. Nothing in the report indicates that Jackson’s exhibits were rejected, and many were relied upon by him in his post-hearing brief (AR 458-88) and his exceptions to the Hearing Examiner’s report (AR 426-38). The exhibits were admitted, are in the Administrative Record, and have been referred to by Jackson and the court in this tentative.