Coleman v. DEPARTMENT OF PERSONNEL ADMININISTRATION

BROUSSARD, J., Concurring and Dissenting.

I concur in the majority opinion’s conclusion that Government Code section 19996.2, subdivision (a)—the state employee absent-without-leave (hereafter AWOL) provision—violates procedural due process insofar as it authorizes the state to “automatically” terminate the employment of a permanent employee who the employer believes has been absent without leave for five consecutive days, without first notifying the employee or giving him or her the opportunity to respond to the allegations of unauthorized absence.

I cannot agree, however, with the opinion’s further conclusion that “[o]nce the state has provided notice and an opportunity to respond, neither the federal nor the state Constitution requires anything more.” (See maj. opn., ante, p. 1123.) In particular, I disagree with the opinion’s conclusion that neither the federal nor the state Constitution requires the state to provide any form of posttermination hearing at which the state employer bears the burden of proving that the permanent employee was in fact absent without leave for five consecutive days and thus was properly subject to termination under the AWOL statute.

*1127 In reaching the conclusion that no posttermination hearing is required in this context, the majority opinion withholds from public employees who are dismissed under the AWOL statute a basic procedural protection that is guaranteed to all public employees under the controlling decisions of both the United States Supreme Court (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532 [ 84 L.Ed.2d 494 , 105 S.Ct. 1487 ] [hereafter Loudermill]) and this court (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [ 124 Cal.Rptr. 14 , 539 P.2d 774 ] [hereafter Shelly]). Although the majority opinion bases its refusal to apply the full range of protections afforded by Loudermill and Shelly on the ground that a termination of employment under the AWOL provision is distinguishable in some respects from a termination of employment for other alleged employee misconduct, the distinctions on which the opinion relies do not, in my view, justify depriving employees whose livelihood is being terminated by the state of the minimum procedural protections guaranteed by the due process clause under Loudermill and Shelly. Accordingly, I dissent from the opinion insofar as it denies such employees this most basic procedural right.

I

Before reaching the question of the specific scope of the process that is constitutionally due a permanent employee whose employment is terminated under the AWOL statute, I must note a number of reservations that I have with the opinion’s analysis of the threshold question of whether procedural due process protections are applicable in the AWOL context at all. Although I agree with the opinion’s ultimate conclusion that the procedural due process guaranty is applicable here, the opinion’s analysis of this threshold question is, in my view, flawed in several respects and may mislead future courts as to the proper application of procedural due process principles in other contexts.

The majority opinion properly begins its analysis by recognizing that under the controlling decisions of both the United States Supreme Court and this court, the permanent public employee in this case clearly had a constitutionally protected property interest in his continued employment. (See, e.g., Loudermill, supra, 470 U.S. 532, 538-541 [ 84 L.Ed.2d 494, 501, 503 ]; Skelly, supra, 15 Cal.3d 194, 204-207 .) In Loudermill , the United States Supreme Court made clear that when a state acts to deprive such an employee of this constitutionally protected interest, procedural due process principles require the state to afford the employee certain minimal procedural safeguards to protect the employee from losing his or her livelihood because of the employer’s inaccurate or incomplete knowledge of the facts on which the proposed termination is based.

*1128 After acknowledging the constitutionally protected nature of the employee’s interest in continued employment, however, the opinion suggests that the Loudermill, supra, 470 U.S. 532 , and Skelly, supra, 15 Cal.3d 194 , decisions may not apply with full force here because in this case the termination of the employee’s right to continued employment was the result of the employee’s own conduct of being absent from work without leave, i.e., because the AWOL statute provides for automatic termination of the employee’s property right in employment “upon the occurrence of conditions within the exclusive control of the holder of that interest . . . .” (See maj. opn., ante, p. 1115, italics added.) Indeed, although the point is not entirely clear, the opinion appears to suggest that because the AWOL statute expressly provides for the automatic termination or “lapse” of employment on the basis of conduct within the employee’s own control, there is a serious question whether there is sufficient “state action” to bring the procedural due process principle into play at all. (See maj. opn., ante, pp. 1112-1113.)

In my view, the opinion’s suggestion in this regard reflects a misunderstanding of past procedural due process decisions. In all of the employment cases in which the procedural due process principle has been applied, the employer could have maintained that it was the employee’s own conduct— for example, the employee’s theft of the employer’s property or the employee’s fraudulent statements on a job application—that resulted in the termination of employment. None of the cases discussed the question in these terms, however, because they all recognized that the protections of the due process clause are triggered when the state decides to terminate the employee's employment on the basis of its belief that the employee has committed conduct that calls for termination under the governing statutes or rules. It is the state’s act in terminating the employment, not the suspected conduct of the employee, that constitutes the state action that brings the procedural due process protections into play. In this setting, the procedural due process protections are intended in large part to ensure that the state employer is acting on accurate information when it undertakes to deprive an employee of a constitutionally protected interest on the basis of alleged or suspected voluntary conduct of the employee.

The opinion’s confusion in this regard may stem in part from the fact that the AWOL statute characterizes the employee’s conduct as giving rise to an “automatic resignation” from employment. It is true that when a permanent employee voluntarily resigns from his or her employment, procedural due process principles do not come into play. (See Stone v. University of Maryland Medical System (4th Cir. 1988) 855 F.2d 167 , 172-178 & fn. 7.) But the fact that the state need not engage in unnecessary and meaningless procedures when an employee voluntarily decides to resign does not mean *1129 that the state can dispense with the required constitutional procedures simply by declaring, by statute or otherwise, that certain conduct of an employee will be “deemed” to constitute an “automatic resignation” from state employment. As noted, procedural due process protections are intended to afford an employee the opportunity to respond to charges that he or she has committed an act which the employer believes justifies termination; a state may not deprive an employee of this fundamental procedural protection through the use of a legal fiction like “automatic” or “constructive” resignation. (See, e.g., Patterson v. Portch (7th Cir. 1988) 853 F.2d 1399, 1406-1407 ; Stone v. University of Maryland Medical System, supra, 855 F.2d 167 , 173.)

In a related vein, I think the opinion is also mistaken in its analysis of the United States Supreme Court decisions in Texaco, Inc. v. Short (1982) 454 U.S. 516 [ 70 L.Ed.2d 738 , 102 S.Ct. 781 ] (hereafter Texaco) and United States v. Locke (1985) 471 U.S. 84 [ 85 L.Ed.2d 64 , 105 S.Ct. 1785 ] (hereafter Locke), and in its suggestion that those decisions lend even superficial support to the state’s claim that the AWOL provision at issue in this case does not violate procedural due process principles. The opinion suggests that because Texaco and Locke “upheld the constitutionality of statutes providing for the automatic extinguishment of a vested property right upon satisfaction of certain statutory conditions” (see maj. opn., ante, p. 1115), and because the AWOL statute at issue here put the employee on notice that his or her right to continued employment was conditioned on his or her not being absent without leave for five consecutive days, Texaco and Locke lend support to the proposition that the employee has no procedural due process right to notice and a hearing when the state proposes to invoke the AWOL statute to terminate his or her employment.

The flaw in the opinion’s analysis on this point lies in its failure to distinguish between two wholly distinct aspects of the AWOL statute—the substantive rule embodied in the statute (a five-day absence without leave is grounds for termination) and the procedural aspect of the provision (when an employee is suspected of violating the AWOL provision, he or she shall be deemed to have “automatically resigned” and his or her employment may be terminated without notice or any opportunity to be heard).

As a substantive matter, the AWOL statute establishes the rule that a five-day absence without leave is, in itself, a basis on which an employee’s employment may be terminated. Because this substantive rule is embodied in the statute, employees are on notice of the rule and have no basis for claiming a lack of fair notice if the employer relies on the statute to support termination without giving the employee any additional individualized no *1130 tice of the existence of the rule. In this respect, the Texaco and Locke decisions (see Texaco, supra, 454 U.S. 516, 531-538 [ 70 L.Ed.2d 738, 752-757 ]; Locke, supra, 471 U.S. 84, 108-110 [ 85 L.Ed.2d 64, 84-86 ]), among many others, demonstrate that application of the five-day AWOL rule to an employee without individualized notice of the existence of the rule does not deprive the employee of fair notice. (See 2 Rotunda et al., Treatise on Constitutional Law (1986) § 17.8, p. 261.)

Neither Texaco, supra, 454 U.S. 516 , nor Locke, supra, 471 U.S. 84 , however, provides any support for the very different claim that the procedural aspect of the AWOL provision is constitutional, i.e., that if the employer believes that an employee has been absent without leave for five consecutive days, the employer may deem the employee to have “automatically resigned” and may terminate his or her employment without affording the employee any opportunity to contest the accuracy of the charge. Although Texaco and Locke both upheld the validity of a substantive rule requiring a property owner to register a mining claim in order to preserve mineral rights, neither decision suggested that if the property owner challenged the assertion that it had failed to properly register the mining claim or to take other steps to preserve its rights, the government could constitutionally deny the property owner notice and a hearing on that contested question. Indeed, in Texaco, the court pointed out that under the statutory scheme at issue the property owner would have a full opportunity to litigate the issue in a judicial quiet title proceeding before it would be conclusively determined that its mineral interest had reverted to the surface owner (see Texaco, supra, 454 U.S. 516, 533-534 [ 70 L.Ed.2d 738, 753-754 ]); in Locke , the court was careful to point out that the legislation at issue expressly preserved the property owner’s right to a hearing on its alleged noncompliance with the statute (see Locke, supra, 471 U.S. 84, 109, fn. 17 [ 85 L.Ed.2d 64, 85 ]).

Not only do Texaco, supra, 454 U.S. 516 , and Locke, supra, 471 U.S. 84 , provide no support for the state’s procedural due process contention, but the United States Supreme Court decision in Loudermill—decided just two weeks prior to Locke—makes it absolutely clear that a state cannot limit an employee’s procedural due process rights by conditioning the property right with restrictive procedural limitations. (See Loudermill, supra, 470 U.S. 532, 540-541 [ 84 L.Ed.2d 494, 502-503 ].) The AWOL statute at issue here embodies just such an impermissible condition, purporting to define an employee’s property right in a manner which deprives an employee accused of being AWOL of any procedural protections whatsoever; under Louder-mill, the statute’s authorization of an “automatic” termination cannot properly affect the scope of the employee’s procedural due process rights. Thus, *1131 contrary to the opinion’s implication (see maj. opn., ante, p. 1117), there is no inherent tension between Loudermill and Texaco or Locke , and Texaco and Locke provide no support for the state’s defense of the procedural adequacy of the AWOL statute.

Despite its mistaken interpretation of Texaco, supra, 454 U.S. 516 , and Locke, supra, 471 U.S. 84 , the opinion ultimately reaches the correct conclusion that the state’s termination of an employee under the AWOL statute is subject to procedural due process restrictions. In reaching this conclusion, the opinion relies on two factors: (1) the fact that the AWOL statute is not “self-executing” in the sense that the state retains the discretion not to terminate an employee even if he or she has been absent without leave for five consecutive days (see maj. opn., ante, pp. 1117-1118), and (2) the fact that the state can invoke the statute only after undertaking the adjudicatory task of determining whether the facts establish that the employee was absent for five consecutive working days and, if so, whether the absence was without leave (see maj. opn., ante, p. 1118). While the fact that the employer retains discretion not to terminate an employee, even where termination would be authorized under the statute, unquestionably increases the importance and significance of the employee’s due process protections, in my view it is misleading to suggest that the applicability of procedural due process principles is dependent on the existence of such discretion. Even if a statute compelled the state to fire an employee who committed a specified form of misconduct, the employee would still be entitled to procedural due process protections to assure the reliability of the state’s claim that such misconduct actually occurred.

Although I believe the opinion’s analysis is flawed in the respects just discussed, I agree completely with the opinion’s initial conclusion that procedural due process principles are applicable when the state acts to terminate a permanent employee’s employment under the authority of the AWOL statute. (See maj. opn., ante, p. 1118.) Once that threshold issue is resolved, the question becomes what minimal procedural protections are constitutionally required when the state proposes to terminate employment under this provision.

II

In resolving the question of what process is due in this context, we must again begin with the United States Supreme Court’s controlling decision in Loudermill, supra, 470 U.S. 532 . After assessing the nature and importance of the individual employee’s interest in retaining employment and the countervailing governmental interest “in the expeditious removal of unsatisfacto *1132 ry employees and the avoidance of administrative burdens” (id. at pp. 542-543 [ 84 L.Ed.2d at p. 504 ]), the Supreme Court in Loudermill held that when a state acts to terminate the employment of a permanent employee, procedural due process principles require that the state, at a minimum, provide the employee with (1) notice of the proposed termination and an informal opportunity to respond to the charges before termination, and (2) a reasonably prompt posttermination hearing. (Id. at pp. 547-548 [84 L.Ed.2d at pp. 507-508]. See generally Silver, Public Employee Discharge and Discipline (1989) §§ 17.10-17.12, pp. 17-17 to 17-29, and cases cited.)

The majority opinion concludes that an employee who faces termination under the AWOL statute enjoys the same pretermination rights of notice and of an opportunity to informally respond to the charges as an employee who faces the loss of his or her job on the basis of allegations of other forms of misconduct, and I agree completely with that conclusion. As the opinion recognizes, these pretermination protections give an employee the opportunity to bring facts to the attention of his or her supervisor of which the supervisor may not be aware—facts that may demonstrate to the supervisor that the employee has not, in fact, been absent from his or her or job without leave, or that may persuade the supervisor to exercise discretion not to invoke the harsh penalty of the AWOL statute and, perhaps, to impose some other, alternative sanction. (See, e.g., Loudermill, supra, 470 U.S. 532, 543 [ 84 L.Ed.2d 494, 504-505 ].) These pretermination protections are no less important or relevant in the AWOL context than they are with regard to other terminations.

The opinion goes on to conclude, however, that the Constitution does not require the state to accord an employee whose employment has been terminated under the AWOL statute any posttermination procedure at all. The opinion’s holding in this regard is rather surprising, since this conclusion is less protective of the constitutional rights of employees than the position taken in this case either by defendant Department of Personnel Administration in its brief before this court or by the Court of Appeal opinion, whose judgment the majority opinion affirms. Both the department and the Court of Appeal acknowledge (1) that when an employee challenges the validity of the facts on which the invocation of the AWOL statute depend, the governing procedural due process precedents require the state to provide a posttermination hearing at which the state, rather than the employee, must bear the burden of proving that the employee was, in fact, absent without leave for five consecutive working days, and (2) that if the state fails to meet its burden, it must reinstate the employee with backpay for the period of time the employee was improperly denied the opportunity to perform his or her duties. In my view, the majority opinion seriously errs in rejecting the *1133 department’s and the Court of Appeal’s positions on this point, and in concluding that the Constitution permits the state to deny an employee who is dismissed under the AWOL statute any posttermination hearing on the question of whether he or she was properly terminated.

In its decision in Loudermill, supra, 470 U.S. 532 , the United States Supreme Court expressly noted that its approval of the constitutional adequacy of the limited pretermination procedures of notice and an informal opportunity to respond rested in part on the fact that, under the state law applicable in that case, the employee was entitled to “a full post-termination hearing.” (Id. at p. 546 [ 84 L.Ed.2d at p. 506 ].) As the Loudermill court recognized, when an employee is afforded only the minimal pretermination protections of notice and an informal opportunity to respond, the pretermination procedure cannot be treated as reliably or “definitively resolv[ing] the propriety of the discharge . . . [but rather operates simply as] an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” (Id. at pp. 545-546 [ 84 L.Ed.2d at p. 506 ].) A posttermination hearing is required by due process to assure that there is a definitive resolution of the propriety of the discharge, in a setting in which the dismissing supervisor must bear the burden of proving to a neutral decision maker that the termination rests on an accurate assessment of the facts. (See, e.g., Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651, 656 [ 229 Cal.Rptr. 502 ].) As Justice Thaxton Hanson explained for the Court of Appeal in Curia v. Civil Service Com. (1981) 126 Cal.App.3d 994, 1008 [ 179 Cal.Rptr. 476 ]: “In view of the property interest involved, it appears that the employee who challenges a determination of the governmental employer that [an AWOL provision] is applicable to terminate her employment is entitled, at the very least, to place the burden of proof on the employer at a formal evidentiary hearing on the issues.” (See generally Silver, Public Employee Discharge and Discipline, supra, §§ 17.10, 17.11, at pp. 17-23 to 17-29, and cases cited.)

The majority opinion cites nothing in the Loudermill decision, supra, 470 U.S. 532 , to support its conclusion that it is constitutionally permissible for a state to deprive a permanent employee of generally applicable posttermination due process procedures when it terminates the employee for being absent without leave. Although the opinion suggests that there are a number of grounds on which an AWOL termination may be distinguished from other “for cause” terminations for purposes of assessing the need for a posttermination proceeding, in my view none of the suggested rationales withstands scrutiny.

*1134 The opinion suggests that a posttermination hearing is unnecessary because the facts giving rise to a constructive resignation under the AWOL statute involve “relatively simple determinations [that] generally can be made from personnel records,” whereas “a disciplinary discharge often involves complex facts and may require a sensitive evaluation of the nature and seriousness of the misconduct and whether it warrants the grave sanction of dismissal.” (See maj. opn., ante, p. 1121.) The numerous cases that have arisen under various AWOL provisions, however, belie the opinion’s assertion that the applicability of the AWOL statute can generally be decided from personnel records alone, and demonstrate that an employer’s decision whether or not to invoke the AWOL statute, with its “grave sanction of dismissal” (ibid.), calls for the same “sensitive evaluation of the nature and seriousness of the misconduct” (ibid.) that the opinion recognizes is appropriate in other contexts. As virtually all of the prior AWOL cases reveal, the question whether an employee’s absence was “with” or “without leave” often turns on disputed factual questions with regard to the content of conversations between employees and supervisors or with regard to established agency policies or practices. (See, e.g., Allen v. Department of Personnel Administration (1987) 193 Cal.App.3d 355, 357-359 [ 238 Cal.Rptr. 317 ]; Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 641-642 [ 216 Cal.Rptr. 274 ]; Goggin v. State Personnel Bd. (1984) 156 Cal.App.3d 96, 103-104 [ 202 Cal.Rptr. 587 ]; Zike v. State Personnel Bd. (1983) 145 Cal.App.3d 817, 820-821 [ 193 Cal.Rptr. 766 ]; Curia v. Civil Service Com., supra, 126 Cal.App.3d 994, 996-1002 .) Indeed, the present case is fairly typical in this regard: the employee here testified that he had never been informed, and did not know, that the initial leave that had been granted to him for an acknowledged illness had been terminated, while his supervisor—though acknowledging that he had never explicitly told the employee to return to work—maintained that the employee should have understood that he was required to do so.

In fact, it is evident that the Legislature recognizes that the question whether or not an employee was absent without leave may give rise to factual disputes, since the AWOL statute itself provides for a posttermination reinstatement hearing in which such factual disputes can be raised and resolved by a neutral decision maker. 1 Indeed, because the Legislature has *1135 already established the basic administrative apparatus for a posttermination hearing in AWOL matters, the principal administrative argument that is usually raised against providing a posttermination hearing is nonexistent here. Since a hearing will, in any event, be held in any case in which an employee disputes the propriety of an AWOL termination and seeks reinstatement, there is no substantial increased burden in requiring the employer, rather than the employee, to prove the validity of the termination at the hearing.

In addition to relying on the alleged simplicity of the facts underlying all AWOL terminations as a basis for finding that a posttermination hearing is not required, the majority opinion also suggests that a posttermination hearing is not required in this context because a resignation under the AWOL statute, unlike a disciplinary dismissal, “carries no stigma” and “does not seriously damage an employee’s standing and associations in the community, [or] foreclose other employment opportunities.” (See maj. opn., ante, p. 1120) In my view, this rationale is untenable on two separate grounds.

First, although there may be no stigma attached to an employee’s departure from a job when the employee voluntarily resigns from his or her employment, it is unrealistic to suggest that the same is true when an employee’s employment is terminated by the employer on the grounds that the employee was absent without leave. A subsequent employer would certainly view a forced “resignation” under the AWOL statute quite differently than a voluntary resignation, and would surely place a negative connotation on the fact that the employee had left his or her prior job without giving the employer any notice of the intended departure. Thus, unlike a voluntary resignation, an “automatic resignation” pursuant to the AWOL statute both “carries a stigma” and is likely to “foreclose other employment opportunities.”

Second, even if a termination of employment is not stigmatizing, an employee is still entitled to fully adequate procedural protections when the state acts to deprive him or her of his or her property right in continued employment. The past cases that have focused on the “stigmatizing” nature of particular terminations have relied on that factor to explain that even when an employee does not have a property right in continued employment—for example, when he or she is a temporary employee—the employee may still have a right to some form of hearing under the due process clause if the termination is stigmatizing and thus impinges on the employ *1136 ee’s liberty interests. (See, e.g., Board of Regents v. Roth (1972) 408 U.S. 564, 573 [ 33 L.Ed.2d 548, 558-559 , 92 S.Ct. 2701 ].) I am aware of no case, however, that suggests that when, as here, an employee does have a property right in continued employment, the fact that a particular termination may not be sufficiently stigmatizing to constitute a deprivation of liberty as well as a deprivation of property justifies watering down the procedural rights to which the employee is entitled by virtue of the extinguishment of his or her property right. 2

Accordingly, I believe the majority opinion has erred in concluding that a state may constitutionally deprive an employee, who has been terminated under the AWOL statute, of any posttermination hearing whatsoever. As the opinion recognizes, under the controlling decisions of the United States Supreme Court and this court, employees who are accused of committing conduct much more serious than the conduct encompassed by the AWOL statute—for example, stealing public property or repeatedly being drunk on the job—are constitutionally entitled to the procedural protection of a post-termination hearing at which the employer bears the burden of proving the accuracy of the charges against the employee. In my view, there is no justification for denying a similar protection to a permanent employee who has lost a job because the state believes he or she has been absent without leave for five days.

As the majority opinion acknowledges (see maj. opn., ante, pp. 1108, 1111), however, the reinstatement procedure embodied in the AWOL statute does not itself satisfy the constitutional due process requirements of a posttermination hearing under Loudermill, supra, 470 U.S. 532 , and Skelly, supra, 15 Cal.3d 194 , because the statutorily authorized procedure (1) is directed at determining the propriety of reinstatement rather than the validity of the termination, (2) places the burden of proof on the employee, rather than on the employer, and (3) specifically bars the employee from obtaining backpay for the period prior to reinstatement *1135 even if the employee demonstrates that termination was not warranted under the AWOL statute.

In the same vein, and contrary to the majority opinion’s suggestion (see maj. opn., ante, pp. 1120-1121), the fact that an AWOL termination may not have as severe consequences as a dismissal for cause with respect to the employee’s ability to obtain a future civil service position, cannot justify the withholding of the minimum procedural protections required by Loudermill, supra, 470 U.S. 532 . As Loudermill makes clear, those protections are required by the due process clause because the state is acting to deprive the employee of a constitutionally protected property interest in continued employment in his or her current position. The fact that an employee who is terminated under the AWOL statute may enjoy the theoretical possibility of securing public employment some time in the future does not provide any basis for diminishing the scope of his or her procedural rights with regard to his or her present employment.