HomeMy WebLinkAboutMinutes Civil Service Board - 11/21/2014 MINUTES
569th C"IVII. SERVICE: BOARD HEARING
1201. LEOPARD ST.,C'I"N HALL
BASEMENT TRAINING ROOM
November 21,2014
BOARD MEMBERS PRESENT: CI"I"y STAFF PRESENT:
Susanne Bonilla, Chairperson Yasmine Chapman, FIR Director
Guy Nickleson, Member Janet Kellogg, Asst. City Attorney
Paul Grivich, Member Mark E7eKoch, Asst. City Attorney
"Tina. I3clock, IIR Analyst
Kimberly Jozwiak, Director Municipal Court
Chairperson Bonilla called the 569th Civil Service Board hearing to order at 9:10 a.m. Chairperson
Bonilla read agenda Item #1, 42. Board passes on Item #1, approving minutes, until next hearing as they
were not ready for this meeting.
ITEM #1 Review and approve the minutes ofthe 568th Civil Service Board heating held on
November 4, 2014.
ITEM # 2 Review and consider the appeal filed by Michael Cantu, Deputy City Marshal,
with Municipal Court, on his termination.
Chairperson moves to Item #2, 'Termination Appeal. Witnesses are sworn in after Janet Kellogg invokes
the rule.
Mark DeKoch makes opening statement fo►„ the City. Shows exhibit on the City's leave policy. Mark
explains that Cantu was denied leave for operational needs. Then, he takes time off anyway and the
Doctor records show that he was not seen on the date in question. lie ends up taking off' through
Memorial Day weekend, when he was denied. lie filled out. sick leave on 19"' didn't turn in doctor's
excuse the morning of`the 20t0i; he sent an email very late in day on 20'x' and then he takes the time ofd'
and doesn t come back until the following Tuesday. We have doctor's records that show Mr. Cantu was
not seen on the 2W'. Nothing regarding the sick leave excuse from the doctor's office. There is
considerable question as to the doctor's records. This is not.the first time for this issue, this is the second
time he's been before this board for this same behavior.
Chris Cale makes his opening statement: His client: had extremely HBP, an(] says that lie told his
supervisor Ile had extremely HBI' and needed days off per his doctor. Cale asks Prow the City got the
records, and plans to Tile a complaint about FML,A.
Gale calls witness: Doctor Sifuentes. Gavle asks about his rnedical school and credentials and if` he
knows Mr. Cantu'? A: yes, he's my patient since April for I IBI', stress related to work, gave him coeds for
insomnia and anxiety. 0: In May, slid he see you for stress`? A: yes. Q: Advice'? A: relax and decrease
stress. Q: tell him to take time off'? A: Don't remember. (.gale shows the doctor's excuse; doctor says his
staff stamps it. Q: Did you fill out those days? A: no my staff does. Dr. says he carne to me on the 26'x'
and told me he took oil'some clays. 0: Did lie require taking time off`? A: I would believe so. Q: flow
did City Secure the records? A: al'idavit or subpoena. Q: Did you provide a 'fU11 copy of his record? A:
don't know. Q: What would be more accurate, records or the note? A: records Q: If there is nothing on
the record, how can we explain that? No note on the 20"'7 A: I cant explain that. It's possible that the
patient came, in and got an excuse 11A couldn't:see him. I just don't remember.
Mark crosses witness. Shows hind business record affidavit. Gale objects that this has become part of
public record. Ile wants to make sure that his records are not made public. Mark says lie has no
objection to giving them back to the doctor or to Mr. Cantu. Mark asks doctor to review records to see if
Mr. Cantu visited his office on May 20""? A: no. Q: Look at page 5/30/14, Your records indicate the last
visit. A: yes. Q: According to your records, the last time you saw hint was 5/6/14, correct'? A� yes, that's
correct. Q: You can't say there was in fact an oil-ice visit on 5/20? A: no I cannot. Q: Can you testify that
You saw him on 5/20/14? A: no I did not. Q: What was his illness allegedly f`or being off on those dates?
A: I'd be guessing if I stated. Q: you have no personal knowledge of` him coming at all on 5/20? A:
correct. Q: you cannot testify that lie had an issue that lie needed to be oft from work on 5/20-5/26, can
YOU? A: I do remember that he came in on 5/30 and asked to be excused, not sure ifthat pertains. Q: 'Fen
days after the event:, he talks to you for the Iirst time for being off'on 5/20-5/26? A: correct.
Gale crosses: Q: is it possible that lie carne in to see the nurse on 5/20? A: yes, my staff could have seen
him. Q: my client sent the note to the city on the 20"' and then would you agree that it would be
impossible that the note would have been created on 5/30? A: correct.
Mark: Q: Doctor, whey do you keep records? A: documentation purposes. Q: if'someone comes into your
office to see the nurse, wouldn't it be documented? A: rio, not unless it's abnormal. Q: if you're saying
that lie had to be oft due to his 1I111), alien his blood pressure would have had to be abnormal, correct? A:
yes. Flas doctor to react the termination elate of`May 30"'. Q: it should have been in your records then,
right? A: it's in the medical records, I have it. Q: when did you find it, and why wasn't it in the records?
A: I don't know. Q: the records clearly indicate that he was not seen on the 20""? Can you testify that lie
was under your care f'or I IL31' on 5/20? A: yes. Q: how, if Ire wasn't seen on the 20""? A: born what Mr.
Cantu told me on the 30"'. Suzanne Bonilla asks: other than the actual blood pressure, what are in the
notes`? A: addendum says it reads anibian and he reads the nines for the chairman.
Witness excused.
Mark calls Sherri Eldridge, and asks to state her narne, title, etc. Q: Custodian of exhibits 12-19, 25, 26
and 28. A: yes. Asks them to be admitted into evidence. Gale objects, says 12 is ok, but objects to
relevance to the hearing. I le objects to 16, 18, 19 and 28. Mark says lie needs to show the board that the
City has done progressive discipline. Takes out 16 and 28 withdrawn. Suzanne Bonilla tells Gale that
they normally take progressive discipline into consideration. Ms. Eldridge is excused.
Mark calls Kimberly .Iozwiaak, asks name, title, etc. I lands her exhibits #20-23, and 27, and asks if she
recognizes theme? A: yes. Q: do You see Cxhibit 20? A: yes, requests for leave on 5/19 for Cantu. Q:
Submitted to you':? A: yes. Q: Was it granted? A: no. Please review #14, policy manual, and 413
acknowledgement of`receipt of the policy manual. Q: why did you deny leave'? A: operational needs. We
only had two marshals and that would leave only one for the entire court. Q: Would that be a hindrance?
A: yes no one to handle incidents. Q: What was his response? A: I'll just use sick leave then. Please
review exhibit 22, request fiir leave on 5/19. Q: received oil the 19""? A: no. Are these the same days lie
asked for vacation'? A: yes Q: Did lie tell you ort the 19"' lie had a medical problem and needed to take
time offs' A: no. Ex 21-email from Cantu to Kimberly at 4:53 pm, 5/20. Q: What do you do at end of
day? A: walk around and lock up the court. Q: did You sec: the email on 5/20? A: No. Please read the
entail, witness reads. Q: Did you have a conversation with Bern about this? A: no, only when it was denied
and lie said he'd turn in sick leave. Q: Was lie scheduled to work on the 20th? A: yes, lie came in at
10:50-7:03. Q: Did you receive his notice request for sick leave at 10:59 that morning'? A: no. Q: over the
lunch hour? A: no fie did not. Please review exhibit: 26, email that lie sent to you. He's telling you he's
taking sick leave fior extended holiday'? A: yes. Q: Could he have brought that to you`? A: yes. Q: Did he`?
A: no. Q: Do you agree he could be terminated for violation of policy? A: yes. Please read the last
sentence of Exhibit 12: witness reads. Q: Did he take off'without authorization? A: yes. Q: Did lie ever
get exhibits 22 and 23 to you on the 20`x'? A: no. Q: Did you get it after lie failed to show up on the 21 ''7
A: yes. Q: appropriate to give it to a co-worker`? A: no. Q: Is the person he gave it to his supervisor`? A:
no. Q: Is that person able to grant leave'? A: no. Q: who can grant leave? A: me. Q: What dates did E)I-.
say he could take off in the note' A: 20-26. Q: Did he work on the 20""° A: yes. Q: If he had gone to the
doctor on the 20"' he probably would have taken off, right.? A: right, Cam): Did he tell you that day that he
had 1-1131' and he needed offs? A: no. Q: Would operational needs be modified because of his request? A:
no. Q: Did he put the court in a bind? A: yes, there was not enough coverage by the marshals. Shoy,ks
witness exhibit: 15, asks to tell board what this is? A: Memo from previous interim director of municipal
court, which shows a pattern of hist minute leave-letter Of counseling. Mark asks her to review exhibit 18,
letter to the board from previous director which was suspension-upheld but reduced. Asks her to read
Exhibit 19, letter of reprimand (read out loud) from 016013 for taking unauthorized leave. Q: Were there a
nurnber of incidences in this reprimand for unauthorized leave? A: yes. Please read exhibit 9-letter to the
board for two day suspension. Q: Does this show a progression from 2012, counseling, suspension,
reprimand, suspension, from previous directors as well? A: yes.
Mark passes witness to Gale:
Q: Ever talk to Dr. Sifuentes? A: no. Q: If someone needed time off for an operation, would you grant it`?
A: yes, of course. Q: When Rodriguez took off"the month prior, it left Cantu alone? A: No. The judges
took their papers themselves, since there was time to get covet-age. Objection to an exhibit that wasn't
allowed, but Gale reads anyway. Q: Rodriguez was permitted sick leave request. Mark objects, says
irrelevant to the issues at hand, and that(.;'ante is the one that violated policies. Suzanne Bonilla says it's
outside the scope of this hearing. Q: Have they ever been left alone? A: yes, and judges had to cover. Q:
Did you ever ask Cantu about the leave`? A: no Q: Elver ask why`? A: no. Q: ever had a conversation about
him having fIBP and he needed time off`? A: no. Q: did you think it was a fake? A: I have no idea.. Q: Do
you accept that it came from the doctor'? A: no idea. Q: Do you think it's valid? A: yes. Mark objects to
the relevancy ofthe note. She did it on failure to f'ollow policies and not on the note. Q: you didn't have
a concern about the validity of the note'? A: no. Suzanne Bonilla states that objection is overruled. Q: to
your knowledge, is it valid'? Objection from Mark. Q: At the time you received it, did you feel it was
valid? A: it wasn't considered. Q: the sole reason it wasn't granted is because it wasn't turned in
immediately'? A: no, he circumvented an(] manipulated the situation Q: If he had come in to you and gave
it to You at 10:00 Would you have granted it? A: I don't know. Objection-calls for speculation-sustained.
Mark said it's irrelevant; he failed to turn it in t.iniely. lie manipulated the system, that's the reason for
the termination. Objection sustained by board.
Gale asks witness how did lie manipulate? A: he took off unauthorized, Q: what other ways'? A: once lie
was denied lie used sick leave. Ile stated it and walked away. fie called me out of a meeting, I denied it,
lie said he'd use sick leave, and then he walked away. (;ale asks about the meeting, what kind of meeting,
grills witness about the meeting. Mark gays the meeting is irrelevant to the issues of how Cantu
manipulated the system. Objection sustained.
Break from 10:47-10:56
Gale to witness: Q: I low long was the meeting (Suzanne asked this)? A: 8-5 or 6. Suzanne reminds Gale
where we left off`. Q: on that day, did you talk to him about leave? A: no. Q: when you came out of the
meeting, did you talk to him about him submitting sick leave'? A: no. Q: make sense that it would be a
sick leave form? Q: did you talk to Cantu that day bel'"ore you left? A: no. Q: Call hire or contact him or
talk to him? A: no. Q: did you go to talk to him about it the next day''? A: no. Mark objects, stating the
policy is that the employee gives it to the supervisor, not the other way around. She wouldn't need to hunt
him down. Suzanne overrules. Q: 'file tinic lie told you that he would file for sick leave, it wasn't
proper? A: no. Q: F;ver discuss with hirn after? A: no. Q: When he told you he would use sick leave,
what did lie say'? A: just that he'd use sick leave. Q: Is there a video of this conversation? A: maybe. Q:
did my client request a copy? A: maybe Q: was there a video? A: maybe, not sure, videos only last for 14
days, and that's all the DVR would hold. Objection to relevancy. Sustained. Q: when did you receive
sick leave request? A: 21". Deputy Rodriguez dropped it off t:o the manrgencnt asst. desk in front of illy
office. Q: what did you do'? A: denied the request. Q: do YOU have mailbox A: yes. Q: when you leave at
5:00, is it locked? A: yes.
Pass witness, City rests.
Cale calls Michael Cantu as witness. Asks state name, etc. Q: you're here for sick leave abuse? A: yes.
Q: In the month of" May, were you seeing the Doctor`? A: yes. For severe 11131'. Q: Attributed by...A:
work related stress. Q: What work issues? A: treated unfairly. Q: In what ways? A: written rip f`or
unknown reasons, suspended, other issues like having to write down every six minutes. Mark objects to
issues being irrelevant. Q: other issues, YOU were stressed`? A: yes. Q: What did you do? A: spoke with
Kimberly Jozwiak, and gave her the doctor's excuse and told her I needed tine oft. Q: So, two weeks
prior you told her'? A: yes. Q: what did she tell you? Objection. Suzanne says to recall Ms. Jozwiak. Q:
Did you discuss this with Kimberly Jozwiak'? A: yes. Q: why did it become important oil 5/19? A: blood
pressure was abnormally high. Q: Om 19"' did YOU discuss this with Kimberly? A: yes. Q: Where? A: oil
the third floor. Q: Was there a meeting with IT all day? A: yes, I bumped into her in the hall and
informed lrer. Q: What did she say? A: turn in the form and she would approve later. Q: Any concern
that it wouldn't be granted? A: no Q: Did YOU have a conversation with her about not using vacation
leave'? A: yes, oil the 20"'. Q: At some point, did you send an crnail to her? A: yes. Q: were you aware of.
a concern taking sick leave'? A: no. Q: how many times were you the only marshal? A: Couldrn't count
how many, numerous times. Q: is it ►nccessary to get judges to help rout? A: yes. Q: was there complaints
from the judges that work wasn't getting done? A: no Q: what time slid Rodriguez turn in the forms? A:
before 5:00. Q: YOU worked until 7:03? A: yes. Q: Could you have submitted it yourself'? A: no, the door
was locked. Q: Any indication that you couldn't take leave'? A: no. 0: During the time you were off; did
anyone call you? A: no. Q: were you adviser) oil the 27"' YOU were put oil administrative leave for
contemplation of termination? A: yes.
Mark crosses witness: asks witness to read exhibit 15-read what it is. Witness reads court merino from Jay
Reining to Cantu oil 7/11/12, letter of'counseling. Mark asks him to read the second paragraph, which
starts "last minute leave"; witness reads. Q. this is a similar problem with Kimberly, but sane issue with
the previous supervisor, correct'? Gale objects. hoard tells Cantu to answer the question. Q: is it the sarnne
issue? A: I have an issue with it. 'there's no policy violation on the document. Suzanne tells him to
answer; he says yes, the same. Q: in fact you have been told before there was a problem with you turning
in last minute usage of'' leave. Objection. Mark has hirn read the first paragraph which refers to sick
Have. Q. Fle s referring to sick leave'? A: yes. Q. So, in 2012 you had counseling from your supervisor
about making last minute requests for sick leave'? A: yes Q: is that your signature'? A: yes. Please look
at 13: read to yourself. Q: did you sign A: yes Q: Did you agree with it? A: yes. Please look at page G of
example 14, on attendance. Read the first sentence out IOUd please. Q: Oil 5/21 were you officially
excused`? A: yes. Q: Now? A: I turned in a request on the 20"'. Q: Did you give it to Kimberly? A: no. I
turned it in as instructed. Mark asks him to turn to page 25 out loud, witness does so. Q: you gave
testimony that you gave it to Rodriguez to turn it in oil the 21'`. A: correct Q: Does that meet with the
policy manual that you were to comply with? (:)bjection ftorn Gale, Q: YOU stated that you gave it to
Rodriguez to turn in oil the 21". does that meet with tine manual? (Objection. Suzanne tells, witness to
answer the question. A: Cantu asks to repeat the question. Q: Was Rodriguez your supervisor at the time
A: acting supervisor. Q: Why did you give it to Rodriguez to give it to Kimberly the next day? A: tie
offered to take it because Kimberly was busy and I gave them to him around 5:00. Q: Was that
reasonable? A: yes, I feel it.was reasonable. Q: anything unclear about the policy you just read? A: no. Q:
Is it your testimony that you 'talked to her on the 20""'? A: Yes, the 19`x' and the 20t1'. Look at exhibit 22-
sick leave request on the 19''. Q: if you talked to her on the 20`' you had your leave request at that time,
YOU came in with it to work. You had already gone to the doctor. Would have had the opportunity to turn
in those documents early in the day`? A: She didn't ask for therm. She told me to turn them in when I had
the chance. I didn't have them with me when I came in, they may have been in my ear. Q: Do you have
proof that Kimberly okayed Your vacation request:? A: no. Q: you realize that there is proof that it was
denied'? A: I didn't get therm. She told me I don't think I can do vacation, put down sick leave. Q: What
day was that`? A: 20`x' not the 19`x'. 1 said I turned them both in, printed them out on the same day, waited
for tier instruction aS t:o which One to use. Q: When did you go to doctor`? A: 20`x'. Q: but you filled out.
the request on the 19`x' before YOU went to the doctor. 0: If You're not hiding anything, then why turn it
into Kimberly at 4:53? A: I did what she told me to do. Q: She said don't worry about policy, jr►st give it
to nie whenever'? Why? Objection, Q: What was Your blood pressure on the 19`x' that you self took? A:
don't recall but pretty high. Q: what is abnormal? A: whatever it stages on medical history. It was high.
Q: what was the number? A: it doesn't tell me the number, it tells rme abnormal. I don't recall. Q: Did
YOU see the doctor on the 19""� A: no, didn't see. the doctor. Q: did they give you treatment'? A: no. Q:
was it high? A: yes. Q: what was it'? A: I don't know...it was abnormal. Q: at the doctor's office, what
was it? A: don't know, but it was abnormally high. (sale objects to relevancy. Mark says it's very
relevant to issues at hand. Mark tells the board that if kris blood pressure was too high, lie wouldn't.have
gone to work on the 20`►'. q'he number is very important. Gale objects. Marks asks: How many
employees worked on 20-23? A: 3. Rodriguez, trainee Arias, myself. Q: 2 peace officer, but if you took
off, how many? A: 2 Q: is it reasonable then that the policy is implemented to get coverage'?
Objection/sustained.
Gale crosses: Q: did you submit,a leave request May 2"`r that:was approved`? A: yes.
Gale rests.
Break until 12:15
Resumed at 12:12
City calls Kimberly Jozwiak back to stand. Mark asks: Did YOU have any mmeetings with Cantu? A: no. Q:
Did you have any FMLA requests from Cantu? A: no.
Gale crosses:
Q: Does F'MLA require to submit something for FML,A? A: no. Q: if there was a meeting in which he
6`� A requested meeting Ix7thCLilrf`tware company air sufficient(,rrt request?And ifAou need : what were yor► doing on May
? g p" y Q: y to speak with an employee? A:
they need to come to me. Q: nCVer' requested time oft'? A: no. Q: ever tell you he needed time off for
sick? A: no. Q: How to you know he didn't talk to you during your meetings? A: all the other employees
cane to me for operational needs. Ile was the only one who interrupted for something other- than
operational needs. Objection to relevancy. fvustained. Q: HBP would be reason for hMLA in general? A:
not sure, I'd have to read it again, I don't have a medical degree. It's possible but I can't answer that.
Closing arguments for both sides. City stages that Mr. Cantu continues to violate the policy. He didn't
comply with it, gone through priors since 2012. The timing of the documents, he submitted and it was
denied on the 19`x' he tilled out sick leave on the 19`x' didn't turn it in on the 20`x° sent her an email seven
minutes till the end of the day, and gave it to someone else to turn in, He Could have turned it in at any
tirne. If You believe his testimony, lie had opportunity to turn it in to her to meet the policy requirements.
We ask YOU to uphold the termination. lie reminds the board that. he's claiming retaliation, and if that's
so,then it's retaliation from every supervisor since 2012.
Gale closes saying that everyone signs the manual. I le points to leave policy and states it doesn't show
when it is granted or how. There is no impetus for lure to submit the request ASAP. lie has evidence
that he saw his doctor. Ile says his client talked abort it with Kimberly on the 19"'. So, lie submits the
sick time. fle had no idea that his vacation was rejected. Kimberly does admit he came and talked with
her. Says supervisor should have called him back in if C:"ante walked away from her and said "I'll take
sick leave then." Ile (lid exactly what he was requested to do. fle thought it was already granted. This is
retaliation, it's excessive and lie asks Bir a lesser sanction, reinstatement and to overturn the termination.
Please reconsider, the evidence is sufficient to show there was a proper medical need. You'll save the
City a lot of money. Mark responds: reasonable notice-his testimony is that he started talking about this
on the 6"' but lie certainly knew about it on the 19"'. This is something that is planned ahead, he worked
the 20°' not critical. He planned ahead and didn't give reasonable notice. He manipulated it so that
Kimberly wouldn't be able to respond. We provided documents, written down, evidence, that lie put in a
vacation request that was denied for operational needs. He never gave her the opportunity to deny the
sick leave request. Don't think for a second that lie didn't know what he was doing, or know the
procedure to Billow. If it was critical for his health or that he was too sick, then lie wouldn't have worked
the 20"' Ile went to the doctor for one reason only, to get.an excuse. He manipulated, and we know that
lie does this because he was addressed for this very issue in 2012. lie did it before, he knows this, and he
signed off that he knows. It's been addressed before with him, it's been all ongoing issue. He did not
comply with the policy on something he knew about. lie tells a diffierent story than the documents show.
If you believe the documents, even the testimony, lie violated the policy and lie knew lie could be
terminated.
12:36 PM Closed Session
12:40 Board resumes
Board decision: Termination is upheld, all in favor.
Adjourned.
n� uuwxwmmmmm�
Susanne Bonilla, Chairperson uy...fi�ic l<lesa n, Member
Civil Service Board Civil Service Board
,
Paul Grivich, Member Yea rairac F:3. C.h41,1, Secrc nary
Civil Service Board Civil Service Board