Pending - Other Pending
Other - Writ Of Mandamus
JAMES C. CHALFANT
CITY OF LOS ANGELES A MUNICIPAL CORPORATION
MOORE MICHEL CHIEF OF POLICE OF THE CITY OF LOS ANGELES
YACOUBIAN GREGORY GASPAR
PARK HOON SUK
11/18/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: CONTINUANCE OF HEARING ON PETITION FOR WRIT O...)
9/21/2020: Motion re: - MOTION RE: FOR PEREMPTORY WRIT OF MANDATE
9/21/2020: Request for Judicial Notice
9/21/2020: Memorandum of Points & Authorities
10/19/2020: Opposition - OPPOSITION RESPONDENTS' OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES
11/2/2020: Reply - REPLY TO RESPONDENTS' OPPOSITION
11/2/2020: Notice of Lodging - NOTICE OF LODGING OF INTENT TO LODGE ADMINISTRATIVE RECORD AND TRIAL NOTEBOOK
11/3/2020: Objection - OBJECTION RESPONDENTS OBJECTIONS TO AND MOTION TO STRIKE PORTIONS OF PETITIONERS REPLY BRIEF
11/5/2020: Notice of Lodging - NOTICE OF LODGING PETITIONERS NOTICE OF INTENT TO LODGE SECOND USB DRIVE FOR INCLUSION IN LODGED TRIAL NOTOOK.
11/5/2020: Response - RESPONSE PETITIONERS RESPONSE TO RESPONDENTS OBJECTIONS TO AND MOTION TO STRIKE PORTIONS OF PETITIONERS REPLY BRIEF
7/9/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)
7/2/2020: Notice of Intent to Appear by Telephone
7/2/2020: Notice of Intent to Appear by Telephone
4/14/2020: Notice Re: Continuance of Hearing and Order
2/20/2020: Proof of Service by Substituted Service
2/20/2020: Proof of Personal Service
1/21/2020: Notice of Case Assignment - Unlimited Civil Case
1/21/2020: Petition for Writ of Mandate
Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Petition for Writ of Mandate - Not Held - Vacated by CourtRead MoreRead Less
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DocketMinute Order ( (Court Order Re: Continuance of Hearing on Petition for Writ o...)); Filed by ClerkRead MoreRead Less
DocketNotice of Lodging (PETITIONER?S NOTICE OF INTENT TO LODGE SECOND USB DRIVE FOR INCLUSION IN LODGED TRIAL NOTOOK.); Filed by Brandon Dorsey (Petitioner)Read MoreRead Less
DocketResponse (PETITIONER?S RESPONSE TO RESPONDENTS? OBJECTIONS TO AND MOTION TO STRIKE PORTIONS OF PETITIONER?S REPLY BRIEF); Filed by Brandon Dorsey (Petitioner)Read MoreRead Less
DocketObjection (RESPONDENT?S OBJECTIONS TO AND MOTION TO STRIKE PORTIONS OF PETITIONER?S REPLY BRIEF); Filed by City of Los Angeles, a municipal corporation (Defendant); Michel Moore, , Chief of Police of the City of Los Angeles (Defendant)Read MoreRead Less
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DocketMotion re: (for Peremptory Writ of Mandate); Filed by Brandon Dorsey (Petitioner)Read MoreRead Less
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DocketNotice of Intent to Appear by Telephone; Filed by Brandon Dorsey (Petitioner)Read MoreRead Less
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Case Number: *******0275 Hearing Date: December 01, 2020 Dept: 85
Brandon Dorsey v. City of Los Angeles, et al.,
Tentative decision on petition for writ of mandate: denied
Petitioner Brandon Dorsey (“Dorsey”) seeks a writ of mandate directing Respondents City of Los Angeles and Michel Moore, Chief of Police of the City of Los Angeles (“Chief Moore”), (collectively, “City”) to set aside its decision removing Dorsey from his position as a police officer with the Los Angeles Police Department (“LAPD” or “Department”).
The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.
A. Statement of the Case
Petitioner Dorsey commenced this proceeding on January 21, 2020, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.
Dorsey was a sworn LAPD police officer with the rank of Police Officer II. On April 19, 2012, Dorsey received a “sick letter” requiring him to provide medical documentation when calling in sick. In May 2012, Dorsey transferred to Jail Division and his attendance improved. In January 2016, when Dorsey was at West LA Station, he received a second sick letter which was allowed to expire and its requirements were never enforced.
When Captain Brian Wendling (“Wendling”) arrived at West LA Station on May 17, 2017, Dorsey was served with a third sick letter which required him to provide proof from a health care provider for any unscheduled absences resulting from illness or the illness of a family member requiring his care. The provisions of this letter were not strictly enforced.
Dorsey has a sister with Down Syndrome and a five-year-old level of functioning who lives with his mother. Dorsey's mother was repeatedly a victim of domestic violence and also suffered from substance abuse. Dorsey's mother would frequently call him and tell him he had to take care of his sister because she was somehow incapacitated or even incarcerated for domestic violence. There was no one else who could take care of his sister. Dorsey informed his supervisors that the doctors would not be able to give him a sick note regarding his sister because he was not her legal caregiver.
In July 2017, a personnel complaint was initiated against him for not bringing a note when he called in sick for the day. The Chief of Police suspended him for 15 days.
On November 11, 2018, a second complaint was initiated against Dorsey. He was ordered to a Board of Rights which commenced on October 8, 2019. There were five counts against him. Dorsey was found not guilty on three counts. He was found guilty of (1) Count 2 [On or about November 3, 2018, you, while off duty, failed to abide by the requirements/conditions of your Sick Letter when you failed to provide proof from your healthcare provider explaining your necessity to be absent from work to care for a family member], and (2) Count 3 [On or about December 27, 2018, you, while off duty, failed to abide by the requirements/conditions of your Sick Letter when you failed to provide proof from your healthcare provider explaining your necessity to be absent from work to care for a family member].
On October 24,2019, Dorsey was terminated. Chief Moore signed the termination of October 31, 2019.
Dorsey contends that the City’s decision to terminate him constituted an abuse of discretion because it was not supported by the evidence and the penalty imposed was excessive. The requirement that Dorsey provide a note for when his sister was sick was an impossible and illegal order.
B. Standard of Review
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 in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (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 police 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 Commissioners, (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, a 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 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 (Ev. Code ;664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (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 Commission, (“Lake”) (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, 217-218. 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, (“Nightingale”) (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, (“Cadilla”) (1972) 26 Cal.App.3d 961.
C. The Memorandum of Understanding (“MOU”)
Notwithstanding any other provision of the MOU or the Los Angeles Administrative Code, up to four months of family or medical leave shall be provided for the purpose of childbirth, adoption, foster care of a child, or serious health condition of an immediate family member upon the request of the employee, or designation by Management in accordance with applicable federal or State law. AR 814.
When an employee requests family or medical leave, he/she must state the reason for the requested leave. When the necessity for a leave is foreseeable, the employee must provide at least 30 days’ notice. However, if the leave must begin in less than 30 days, the employee must provide as much advance notice as is practicable. AR 818.
In response to an employee’s request for family or medical leave, Management shall indicate whether or not the employee is eligible for such leave, if such leave will be counted against the employee’s annual family or medical leave entitlement, and any requirement for the employee to furnish medical certification. Management shall also notify an employee in writing if it designates leave, paid or unpaid, taken by an employee as family or medical leave-qualifying regardless of whether the employee initiates a request to take family or medical leave. AR 818.
D. Statement of Facts
From 2012 to 2017, Dorsey received three sick letters, which are a notice to an employee that his attendance is being monitored and must improve. AR 679, 685, 688. A sick letter is issued when a pattern of absenteeism is identified, i.e., when an employee repeatedly takes a sick day in conjunction with a scheduled day off. AR 95, 240, 251. A sick letter also contains a set of strict monitoring and reporting requirements designed to improve the employee’s attendance, including a requirement that the employee provide proof from a health care provider on the first day of unscheduled absence. AR 679.
In addition to the three sick letters, Dorsey’s chronic absenteeism resulted in a Notice to Correct in August 2015 (AR 701), a Comment Card in September 2015 (AR 704), and three sustained personnel complaints: (a) 2016 (ten-day suspension), (b) 2017 (five-day suspension), and 2018 (15-day suspension). AR 6-7, 261-62, 265.
Dorsey’s third sick letter, at issue in the instant case, required that he provide proof from a health care provider on the first day of unscheduled absence from work due to illness or the illness of a relative. AR 679. The proof from a health care provider must include the necessity for the absence and an expected date of return to duty. AR 679. 
2. The Charges
Dorsey was charged with five counts of misconduct in relation to his third sick letter:
Count 1: On or about September 4, 2018, Dorsey, while off duty, failed to abide by the requirements/conditions of his sick letter when Dorsey failed to provide proof from his healthcare provider explaining his necessity to be absent from work to care for a family member;
Count 2: On or about November 3, 2018, Dorsey, while off duty, failed to abide by the requirements/conditions of his sick letter when Dorsey failed to provide proof from his healthcare provider explaining his necessity to be absent from work to care for a family member;
Count 3: On or about December 27, 2018, Dorsey, while off duty, failed to abide by the requirements/conditions of his sick letter when Dorsey failed to provide proof from his healthcare provider explaining his necessity to be absent from work to care for a family member;
Count 4: On or about November 25, 2018, Dorsey, while off duty, failed to abide by the requirements/conditions of his sick letter when Dorsey failed to be evaluated by a doctor on the first day Dorsey called in sick;
Count 5: On or about January 5, 2019, Dorsey, while off duty, failed to abide by the requirements/conditions of his sick letter when Dorsey failed to be evaluated by a doctor on the first day Dorsey called in sick. AR 6-7.
2. The Hearing
The Board of Rights hear the charges on October 8, 9, and 10, 2019. AR 1, 134, 280. Pertinent testimony from the hearing is as follows.
Officer John Juarez (“Juarez”) is a West Los Angeles Complaint Coordinator with the Department. AR 23. He handles complaints from patrol officers, detectives, and Commanding Officers. AR 23. Juarez became involved in the complaint against Dorsey in May 2017. AR 23. When Captain Wendling arrived in West Los Angeles, he conducted of audit of all personnel and told Juarez that Dorsey was “missing too many days”. AR 23. Captain Wendling directed him to monitor Dorsey and “see what his attendance will be from this point on.” AR 23. Dorsey missed a number of days, so Captain Wendling directed Juarez to initiate a complaint against Dorsey. AR 24.
The complaint related to the third sick letter issued by Captain Wendling to Dorsey on May 17, 2017. AR 679-80. The letter directed Dorsey to provide a doctor’s note any time he called in sick. AR 26. If Dorsey needed to take the day off to care for his sister, he was required to provide a doctor’s note explaining the need for him to be away from work to care for her. AR 26.
Juarez investigated two personnel complaints against Dorsey, the second of which (18-003120) was the subject of the Board of Rights hearing. AR 27-28. As part of his investigation, Juarez conducted an audit of Dorsey’s sick time usage from 2017 to March 2018. AR 28. The audit noted how many days Dorsey was absent, how many days he was absent without leave, and how many days he took for family illnesses. AR 28.
As part of his audit, Juarez obtained the two previous sick letters issued to Dorsey on April 13, 2012 and January 28, 2016. AR 31.
The audit revealed that, between January 2017 and March 2019, Dorsey used an excessive amount of sick time and sometimes called in sick when he did not have the required banks of sick time available (100% pay, 75% pay, or 50%). AR 32. Once the sick banks were exhausted, Dorsey would not get paid if he called in sick and had the health care provider note. AR 36. If he called in sick without the provider’s note, he would be carried as absent without leave. AR 36. Absent without authorization means that Dorsey called in sick, but either did not bring in the required sick note on his first day back or did not follow the conditions of his sick letter. AR 34.
From February to April 2017, Dorsey called in for 204 hours (25.5 eight-hour days) of family illness. AR 33. From February 19, 2017 to June 2, 2017, he called in sick nine times for a total of 108 hours (13.5 eight-hour days days) and was absent without authorization six times for a total of 96 hours (12 days). AR 33. The report total for Dorsey was 1,140 hours (142.5 eight-hour days). AR 35.
Sergeants who conducted sick checks on Dorsey on days he called in sick found him to be sick. AR 54-55. They never did a sick check when he was caring for his sister. AR 54-55, 61-62.
b. Jerome Walker
On one occasion, Sergeant Jerome Walker (“Walker”), the "sick and IOD coordinator" (AR 635), met Dorsey at Kaiser Permanente in the City of Brea and talked to him about his absence. AR 639-40. Walker told Dorsey that LAPD has resources available if something was going on that he did not want to talk to a supervisor. AR 640. They had this conversation multiple times. AR 640. Dorsey also said no. AR 640.
c. Brian Wendling
Captain Brian Wendling (“Wendling”) was promoted to captain in July 2008, replacing Daryl Ito (“Ito”) in command of West Los Angeles. AR 139, 141. Wendling asked Ito if there were any employees “with issues” at West Los Angeles, and Ito mentioned that Dorsey had a severe attendance issue. AR 141. Ito indicated that Dorsey was on his second sick letter. AR 141.
Wendling had a coordinator do a run of Dorsey’s sick time a “year or two” back. AR 142. He discovered that Dorsey had a glaring excessive absenteeism. AR 142. Wendling spoke with Dorsey and informed him that he was likely to lose his job if attendance did not improve. AR 143. Dorsey explained that he had a disabled sister who had Down Syndrome and also brought up issues with his mother and her relationship with her boyfriend at the time. AR 143-44. There were “a whole host of things” in addition to those issues. AR 143-44. Dorsey stated he was not the primary caregiver for his sister; his mother was. AR 145.
Wendling provided guidance to Dorsey as to his options under the Family and Medical Leave Act (“FMLA”) and the Department’s Behavioral Science Services (“BSS”), but Dorsey declined FMLA and Wendling did not believe he went to BSS either. AR 144.
Wendling later issued the May 2017 third sick letter to Dorsey, which Dorsey signed and acknowledged on May 22, 2017. AR 147. Dorsey continued to be absent and violated the terms of the sick letter, leading Wendling to initiate a personnel complaint against him. AR 148. Wendling recommended a Board of Rights, but Dorsey ultimately received a lesser suspension. AR 154.
Dorsey served his 15-day suspension and returned in June or July 2018. AR 154. His attendance did not improve after his return. AR 154. Dorsey was out of sick days and he was carried as absent without leave. AR 154. Dorsey’s absence had a significant impact on West Los Angeles because he could not be counted upon to show up to work, could not be put in an “A-Car” because that would not be fair to his partner, and had to be assigned to desk duty. AR 157. If he fails to show, “you are short of people at the front desk” which can affect the needs of the community. AR 157.
d. John Redican
In the fall 2016, Officer John Redican (“Redican”) worked with Dorsey on the beach detail. AR 567-68. Most days, the beach detail worked from 2 a.m. until noon. AR 584. During the few months Dorsey had this assignment, he never called in sick. AR 570.
Sergeant Scott asked Dorsey to leave the unit and Dorsey was assigned to the desk because of a pending personnel complaint. AR 583. After Dorsey was assigned to day watch at the front desk (AR 559, 568), he told Redican he put in a hardship request for a change from day watch to p.m. watch "that will leave me available during the day if by chance my mom says, hey, come get your sister or your sister is going to stay with you, I will be in a position no matter what, even if I have court, that I can do that." AR 563. Later, Dorsey told Redican that the Captain turned him down and would not let him do it. AR 563.
Dorsey received his first sick letter in 2011 when he was a probationary officer at Wilshire Division. AR 220. His understanding of the sick letter was that he had to bring in a doctor’s note that excused him from the days he missed work. AR 222-23. Dorsey does not believe he took time off for family illness for the first sick letter. AR 256. At the time of the first sick letter, Dorsey’s grandmother had passed, they were selling her house, her second husband showed up to take ownership of the proceeds, and they had to go to court over it, all of which caused a lot of stress. AR 239.
In 2015, the Department approved his shift change so he could better help his sister. AR 257.
Once Dorsey received the second sick letter for January 28, 2016, he tried to explain to supervision that just he and his mother cared for his sister and that his mother had a problem with her ex-boyfriend. AR 241. He contacted the police union for assistance, but they only offered the FMLA or BSS. AR 241-42.
Dorsey did not bring in a doctor’s note for his absence on September 4, 2018 because he was not listed as his sister’s primary caregiver and the doctor would give an excuse only to his mother, not him. AR 225. Dorsey told the doctor that he helped his mother take care of his sister, but the doctor said he could give a note only to the primary care giver. AR 226. Dorsey explained to his watch commander that he did not have a doctor’s note because the doctor would only give one to his mother, the primary care giver. AR 227.
On November 3, 2018, Dorsey did not go to work because his sister was in constant pain due to a hernia and a tumor which they thought might be cancerous. AR 230. She was afraid that she was going to die, and Dorsey needed to comfort her. AR 230. The doctor again would not give Dorsey a note because he was not the primary caregiver. AR 229. In late January they determined that the tumor was not a cancer, but it had to be removed and she needed hernia surgery. AR 230.
He explained this situation to the sergeant, who insisted that he provide a doctor’s note despite Dorsey’s explanation that he could not get one. AR 231. Dorsey explained to the watch commander that he could not bring a doctor’s note, but he could bring in a medical form stating his sister’s diagnosis. AR 232. The Department would not accept the form in lieu of a doctor’s note. AR 232.
Dorsey was aware that his failure to comply with the terms of the sick letter and bring in doctor’s notes could potentially lead to a Board of Rights hearing. AR 234-35. He asked his mother to transfer primary caregiver status to him, but she lives in Orange County and was concerned that her daughter would have to live with Dorsey or in a 24-hour nursing home and not with her. AR 232. Dorsey was unsure if this was true, but he did know that he would have to find someone to take care of her during work if his sister lived with him. AR 233. He did not think he could be her legal guardian if he was unable to be there 24 hours a day. AR 233.
On December 27, 2018, he called in sick to take care of his sister after his mother’s ex-boyfriend attacked her and beat her up. AR 236. This happened a few times over the years. AR 237. He offered to provide the watch commander with the Los Angeles County Sheriff’s Department report, but they said he needed a doctor’s note. AR 236. Dorsey did not set a meeting with Captain Wendling to explain the situation because he felt Wendling was “not approachable.” AR 238. Captain Wendling had a son with problems as well, and his response was that he had to make it work. AR 238.
On January 5, 2019, Dorsey called in sick when he was sick with the flu. AR 245-51. He did not provide a doctor’s note, it was due to his doctor being unavailable to see him. AR 245-51.
Dorsey recalls signing the third sick letter on May 22, 2017. AR 427. When Wendling gave him the letter, Dorsey explained the situation with his sister and his family. AR 429-31. He explained that it would be difficult to get a doctor’s note because his sister was not necessarily sick. AR 431. Captain Wendling said he would still need a care provider’s note that excuses him to take care of her. AR 431. Dorsey requested that he be allowed to bring in a form stating that his sister had Down Syndrome rather than a doctor’s note, but Wendling informed him he was required to bring in a doctor’s note stating that his sister has Down Syndrome and Dorsey is required to take time off to provide her care. AR 433.
Dorsey did not want to take FMLA leave because he would not be paid. AR 291-92. He also did not qualify because the FMLA requires that he work a certain number of hours and he does not qualify because of his suspensions. AR 270. He conducted research and discovered a program called Bright Star that would provide assistance in caring for his sister. AR 242. He did not previously contact this resource because he was unaware of it. AR 242.
In early September 2019, after Dorsey was relieved of duty and ordered to a Board of Rights, he began to see Raymond Mars (“Mars”), a police psychologist in the Behavioral Science Section of LAPD. A.R. 303. Dorsey’s first course of treatment with Mars was about four years earlier and the second course of treatment was several weeks prior to the hearing. AR 320-21. The first course of treatment concerned his mother’s domestic violence situation, his sister, and a death in the family. AR 321. There were three or four sessions. AR 323. No steps were taken at that time to connect Dorsey with outside resources. A.R. 321-22.
Dorsey told Mars about his mother's "continuous domestic violence situation," resulting in her arrest at one point, and Dorsey's need to take his sister out of that situation. When his sister had "episodes" as a result of Down Syndrome, Dorsey would be able to calm her down. A.R. 305-06. Dorsey told Mars that he could not bring in a doctor's note, as the Department required when he took off time to deal with his sister since these occasions usually did not involve a doctor visit. "You know, how do you go to the emergency room when she's not sick." A.R. 307-08.
Mars found him to be suffering from "mild depression" from "dealing with his sister, mom, and then on top of that the internal stressors from the Department when he knew deep down inside that he wasn't doing anything wrong as far as abusing, you know, the sick time." AR 309-10.
Mars knew that Dorsey was facing a Board of Rights and the stress of that issue. AR 325. Going forward, Dorsey's focus would have to be on his job. AR 312-13.
Mars helped Dorsey connect with “MNH”, which has a plethora of resources. AR 312. His mother is the primary care person and MNH has resources where Dorsey can call someone who is a trained professional to be with his sister in case his mother is not available. AR 312.
2. The Board’s Decision
On October 24 ,2019, the Board issued its recommended decision to Chief Moore. AR 864. The Board found Dorsey guilty of Counts 2 and 3 and not guilty of Counts 1, 4, and 5. AR 864. The Board recommended the penalty of termination, effective June 23, 2019. AR 864. The Board’s Rationale of Findings stated in pertinent part as follows.
Regarding Count 1, witness testimony indicated that Dorsey provided a note on September 4, 2018 for the absence of his mother. AR 646. Since Dorsey provided a doctor’s note, he complied with the provisions of the sick letter. AR 646. Dorsey was not guilty of Count 1. AR 646.
Regarding Counts 2 and 3, the Department provided evidence that Dorsey failed to comply with the sick letter and did not provide doctor’s notes excusing his absences. AR 647. The Department submitted evidence for a pattern of behavior from Dorsey regarding his absenteeism, including his previous sick letters and attendance records depicting a pattern of absenteeism documented as far back as January 2011. AR 647-48. Dorsey has taken a total of at least 25 suspension days for similar behavior in the past few years. AR 648.
While Dorsey may have been protected by the FMLA, he was still required to comply with his sick letter, including bringing a note from a healthcare provider that he needed to care for his sister. AR 648. The City Attorney advised the Board that the Department was justified in requiring a note from a healthcare provider. AR 648. The Department proved by a preponderance of the evidence that Dorsey failed to comply with the sick letter requirement regarding the family member care as cause for absence from work. AR 648-49. Dorsey is guilty of Counts 2 and 3. AR 649.
Regarding Count 4, Dorsey submitted a doctor’s note that did not comply with the sick letter requirements as he was not seen by a healthcare provider on the unscheduled day off. AR 649-50. However, testimony established that seeing a doctor on the first day available and subsequently bringing in a note was within the spirit of the sick letter requirements. AR 649. Dorsey’s note covered the correct days of the absence and conformed with the spirit and intent of the sick letter. AR 650. Dorsey was not guilty of Count 4.
Regarding Count 5, the Department’s policy on changes affecting the use of annual sick leave accrual were clearly spelled out in the Department’s Office of Administrative Services Notice dated February 16, 2017. AR 650. The notice states that commanding officers who wish to issue absenteeism letters shall not consider the first 48 hours of sick leave for the calendar year in determining patterns. AR 650-51. Commanding officers shall not request a note from a healthcare provider for any employee’s absence during their first 48 hours of accrued sick leave for the calendar year. AR 651. This requirement is intended to comply with Labor Code section 233, which prevents an employer from taking action for a note for the first 48 hours of sick time used. AR 651.
Dorsey’s absence on January 5, 2019 was the first time he was absent within the calendar year and clearly within the 48 hours described. AR 651. A guilty determination on Count 5 would be a violation of the Department’s policy and therefore Dorsey was not guilty on Count 5. AR 651.
The Board’s Rationale on Penalty stated in pertinent part as follows. A review of Dorsey’s personnel history caused significant concern due to its corroboration of the Department’s case of pattern behavior. AR 669. During his nine-year career, Dorsey has been the subject of eight sustained personnel complaints, all fundamentally falling under the same pattern of neglect of duty. AR 669-72. The complaint initiated on June 17, 2017, was also for failure to abide by the sick letter and the case was referred to Chief Moore, who elected to suspend Dorsey for 15 days. AR 672-73. The Board considered that case to be Dorsey’s last chance to modify his behavior and correct his chronic absenteeism. AR 673.
The intent of progressive discipline is to modify behavior and Dorsey has not changed his behavior as a result of the progression. AR 673. His sustained discipline history has resulted in a total of 37 suspension days over his nine-year career. AR 673. The Department has a core value of service to the community and the community has a reasonable expectation that officers will show up to work, be engaged, and provide reliable police service consistently. AR 673. Dorsey has not lived up to that core value. AR 673. Dorsey’s pattern of absenteeism is a burden to the Department and creates a safety hazard and officer safety concern. AR 673. His partners and supervisors cannot count on him due to his absenteeism and chronic absences with no accountability undermine the morale and effective ness of the workforce. AR 673.
On October 31, 2019, Chief Moore certified and issued the order terminating Dorsey, effective June 23, 2019. AR 864.
Dorsey cites the FMLA as requiring employers to provide employees with up to 12 workweeks of "job protected unpaid leave" to care for, among other things, a son or daughter with a serious health condition. 29 U.S.C. ;2612(a)(1).
Dorsey notes that the MOU, the collective bargaining agreement between the City and the Los Angeles Police Protective League, also requires the Department to provide up to four months family leave annually for the serious health condition of an immediate family member whether or not the officer requests it. AR 814-820. The four months need not be taken all at once. Rather, an officer may take "intermittent leave" to take care of a family member with a "serious health condition." AR 817. "Serious health condition" includes "illness, injury, impairment, or physical or mental condition that involves any period of" "incapacity that is long-term or permanent due to a condition for which treatment may not be effective." AR 816-17. Under the MOU, the Department retained the right to request "certification from a health care provider" to substantiate that the requested leave was due to the serious health condition of the officer or his family member. AR 818. Pet. Op. Br. at 9-10.
Dorsey further notes that on February 16, 2017 LAPD formally notified its command officers that there had been changes in the law relating to the first 48 hours of an employee's accrued sick leave due to Labor Code section 233. AR 746. On June 21, 2017, LAPD revised the "sick letter" format, emphasizing that it applied to a pattern of unscheduled absences and did not apply to "authorized statutorily protected leaves (e.g., Family Medical Leave....)." AR 699. Pet. Op. Br. at 10.
Dorsey now contends that the Department had the right to require medical certification that his sister had a serious health condition, but it did not have the legal right to demand a doctor's note each time he requested unpaid leave to deal with that condition. As a result, he concludes that the Department did not proceed in the manner required by law. Pet. Op. Br. at 11.
Dorsey explains that FMLA issues were not addressed in the appeal hearing. During the hearing, the Department's Advocate submitted two exhibits relating to the FMLA: Escriba v. Foster Poultry Farms, (“Escriba”), a 2014 case from the Ninth Circuit Court of Appeals (AR 705-30), and the Code of Federal Regulations (“CFR”) governing "Employee and Employer Rights and Obligations Under the Act" (AR 731-44), which the Advocate described as "Federal Regulations straight off their website and the most current information we were able to find". AR 589. Although he presented this evidence, the Advocate argued that the Board should not consider any defense based on FMLA: "Any issues with FMLA is for the board of appeals, that's for writ or a judge to decide, if there's any violations. It is not for a Board of Rights to determine whether there is any FMLA violations." AR 549. Pet. Op. Br. at 10.
Dorsey does not explain why the Department had no right to require a note from a medical provider when he sought leave, paid or unpaid. As the City argues (Opp. at 7), the FMLA does not entitle an employee to take a leave to care for a sibling. O’Hara v. GBS Corp., 2013 U.S. Dist. LEXIS 49652; Gude v. Rockford Center, Inc., (D.Del. 2010) 699 F.Supp.2d 671, 685 (caring for sibling is not a guaranteed right under the FMLA); Olejarz v. Shaler Twp., 2010 U.S. Dist. LEXIS 54976 (same). Nor did the MOU prevent the Department from requiring a health care provider note for each leave sought by Dorsey, whether it was to care for his sister or not.
Dorsey tries to avoid the FMLA’s lack of coverage for his sister by claiming that he stood in loco parentis with her. Again, he does not explain why. Pet. Op. Br. at 11. In loco parentis is a legal term defined in the law, but not in the FMLA. Although Dorsey attempts to rely on a DOL Fact Sheet to show that an employee who has day-to-day responsibility for a child may be entitled to leave in loco parentis even if the employee does not have a biological or legal relationship to the child, the court declined to judicially notice it.
Even if arguendo the court should consider the Fact Sheet, it only states: “Under the FMLA, persons who are in loco parentis include those who with day-to-day responsibility to care for or financially support a child.” Pet. RJN Ex. A, p. 1. The factors to consider include: (a) the age of the child; (b) the degree to which the child is dependent on the person; (c) the amount of financial support, if any, provided: and (d) the extent to which duties commonly associated with parenthood are exercised. Id.
Dorsey provides no analysis why he should be considered in loco parentis with his sister and there is little evidence supporting his position, including whether he provided financial support, the degree to which his sister is dependent upon him as opposed to his mother, and what parenting duties he performed when he was with her. As the City argues (Opp. at 7), the evidence shows that Dorsey provided part-time brotherly help and did not act as a parent. His mother is the primary caregiver for his sister, receives government assistance for doing so, and refused to give up her role. AR 232-33. Dorsey lived in Fullerton while his sister and mother lived in Compton. Dorsey admitted that he did not need to care for his sister on a daily basis. AR 251-22. His sister went to an adult care facility every day under her mother’s charge; Dorsey has visited the daycare only once. AR 296-97.
Nor does the sick letter’s requirement of a health care provider’s note conflict with the FMLA. Under the FMLA, an employer may require that the leave requested "be supported by a certification issued by the health care provider of the eligible employee." 29 U.S.C. 2613(a). A certification is sufficient if it includes the date the serious health condition started, probable duration of the condition, the appropriate medical facts known to the health care provider, a statement that the employee is needed to care for the person, and in case of intermittent leave, a statement that the employee's intermittent leave schedule is necessary for the care. 29 U.S.C. 2613(b). The employer also may require an employee on leave to obtain subsequent re-certifications "on a reasonable basis". 29 U.S.C. 2613(e). Opp. at 9.
Dorsey argues that the intermittent leave permitted under the FMLA does not require an employee to supply a doctor's note after each day of leave to care for a family member. Reply at 2. Nor did the sick letter. It only required proof from a health care provider for an absence from work due to illness or the illness of a relative (the proof shall include the necessity for the absence and an expected date of return to duty) AR 679. This is not inconsistent with the certification of a healthcare provider under the FMLA.
In any event, Dorsey expressly declined to make a FMLA claim because he did not want unpaid leave and he felt that he did not qualify because he did not have sufficient work hours. AR 270, 291-92. He cannot parse now between paid and unpaid leave to rely on the FMLA. As pertinent, Escriba held that an employee may affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. AR 718. If an employee does not wish to take FMLA leave, and continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies. Otherwise, termination is justified. AR 718-19 (citation omitted).
In reply, Dorsey admits that the FMLA does not entitle an employee to leave to care for a sibling. He argues, however, that the MOU includes brothers and sisters in its family leave provisions. AR 860. The MOU allows officers to take up to 96 hours paid sick leave per year to care for a family member, including a brother or sister. After 48 hours is expended, the Chief of Police may request “proof from a health care provider which shall include the necessity for the absence and an expected date of return to duty.” AR 860. Dorsey admits that this MOU provision applies to officers requesting paid sick leave and does not apply where Dorsey requested a day off without pay. AR 862-63. Reply at 3.
Also in reply, Dorsey argues that he was found guilty on two charges of failing to provide proof from his healthcare provider explaining the necessity to be absent from work to care for a family member (AR 6-7), but the record does not support how Dorsey could get a note from his healthcare provider to “explain the necessity to be absent from work to care for” his sister. Nor could he obtain such proof from his sister’s healthcare provider. The occasions when he had to take time off to help his sister usually did not involve a doctor visit. In addition, he could not get a note from his sister’s healthcare provider when she did receive medical care because he was not her designated primary caregiver. AR 229. In short, the sick letter required him to perform an impossible task. Reply at 3.
Dorsey does not explain why what the MOU does not require is relevant, as opposed to what it does require. Nor does he show that he exhausted his administrative remedies by raising before the Board either of the issues that (1) the Department’s demand for a doctor’s note is contrary to the MOU and (2) the two charges on which Dorsey was found guilty required performance of an impossible task. Finally, the City objects and moves to strike the reply’s discussion of these issues. While a motion to strike is improper for a brief’s argument, the objections are well taken. The court has not considered these two issues raised for the first time in reply. See Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.
Dorsey indisputably was a poor employee because he was unreliable, missing 142.5 eight-hour workdays in a little over two years from January 2017 and March 2019. During his nine-year career, Dorsey had eight sustained personnel complaints and 37 days of suspension, mostly because of excessive absenteeism. He missed workdays because he was sick, because of a need to care for his sister, and because of his mother’s problems. His motives in taking unauthorized leave may have been benign, but the Department was not required by the FMLA, the MOU, or any other law to carry him as an employee when he violated his sick letter requirements. The Petition is denied.
The City’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner’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 along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for January 14, 2021 at 9:30 a.m.
 Dorsey requests judicial notice of a Department of Labor (“DOL”) Wage and Hour Division Fact Sheet #28B (Ex. A). The fact sheet is not an official agency action. It is downloaded from the DOL website, but not everything on an agency website can be judicially noticed. The Fact Sheet states that it “is not to be considered in the same light as official statements of position contained in the regulations.” Ex. A, p. 2. The request is denied.
 Dorsey’s discipline unrelated to absenteeism included (a) an admonishment in 2011, his first year of employment, for failing to update information on his employee card (AR 670), (b) an admonishment in 2012 for failing to appear in court as required (AR 670), (c) an official reprimand in 2012 for failing to qualify with his firearm (AR 670), (d) a five-day suspension in 2013 for failing to maintain custody of a complainant’s property (AR 671), and (e) a five-day suspension in 2015 for failing to qualify with his firearm (AR 671-72).
 The third sick letter stated in pertinent part:
"reasonable measures will be taken to help you improve your attendance, including the requirement that you provide proof from a health care provider for any future absences from work due to illness or the illness of a relative (the proof shall include the necessity for the absence and an expected date of return to duty) in order to receive compensation/and or authorization to be absent from work." [AR 679].....
"failure to provide appropriate proof from a health care provider upon returning to work may result in my absence being referenced and recorded as 'Absent Without Leave' (AW), which is considered as uncompensated and unapproved absence." AR 680.
 Dorsey was suspended for 15 days as a result of the first personnel complaint. AR 29. Captain Wendling requested a Board of Rights or termination, but Chief Moore decided the 15-day suspension would be the proper adjudication. AR 29-30.
 Dorsey's request for unpaid leave on November 3, 2018 was marked "approved" by Captain Wendling. AR 862. The approval was apparently rescinded; there is a handwritten note on the request form stating: "No doctor's note." AR 862. The note was made by Sergeant Walker. AR 636. Similarly, Dorsey’s request for December 27, 2018 was initially approved by Captain Wendling but then disapproved by Sergeant Walker because "No doctor's note". AR 639, 863.
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