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OAH 15-6220-20331-3 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR
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In the Matter of the Dismissal of Pheing Vang |
FINDINGS OF FACT, CONCLUSIONS AND ORDER |
This
matter came on before Administrative Law Judge Beverly Jones Heydinger (“ALJ”)
on July 8, 2009, for a prehearing conference at the Office of Administrative
Hearings,
Christine
Yates, Hennepin County Labor Relations Representative, appeared on behalf of
STATEMENT OF ISSUE
Did
the County have just cause to dismiss the Respondent?
The
Administrative Law Judge concludes that the County had just cause to dismiss
the Respondent, and its decision is affirmed.
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On March 18, 2009, a copy of the Notice of and Order for
Hearing and Notice of Prehearing Conference was delivered via certified mail to
the Respondent, Pheing Vang, as the address appears on an Affidavit of Mailing
on file herein.
2.
The parties appeared at the prehearing conference, Respondent
was provided information to assist his preparation for hearing, and the County
requested that the Respondent agree to participate in mediation.
3.
On April 30, 2009, the Respondent agreed to mediation and it
was scheduled for May 22, 2009.
4.
The Respondent failed to appear at the scheduled mediation.
5.
On May 26, 2009, the Respondent sent a letter to the OAH
explaining that he was absent due to the death of his father and requesting
that mediation be re-scheduled.
6.
A mediation session was scheduled for June 16, 2009, but
again the Respondent failed to appear.
7.
On June 16, 2009, a letter was sent to Respondent notifying
him that a prehearing conference would be held on July 8, 2009.
8.
The Respondent failed to appear at the prehearing conference,
did not obtain the ALJ’s prior approval to be absent from the prehearing
conference, and it did not request a continuance or any other relief.
9.
The Notice of and Order for Hearing and Notice of Prehearing
Conference, and the notice sent on June 16, 2009, contained the following
informational warning:
If the Employee fails to appear at the prehearing
conference, there may be a finding that the Employee is in default and the
Employer’s decision should be upheld.
Failure of the Employer to appear may result in a finding that the
Employer’s action was not for just cause and that the Employee should be
reinstated. If any party has good cause
for requesting a delay of the prehearing conference, the request must be made
in writing at least five days prior to the prehearing conference. A copy of the request must be served on the
other party.
10.
Because Respondent failed to appear at the Prehearing
Conference, he is in default.
11.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Notice of and Order for Hearing and Notice of Prehearing
Conference are taken as true and incorporated by reference into these Findings
of Fact.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1.
The Administrative Law Judge is authorized to consider
Respondent’s appeal pursuant to Minn. Stat. §§ 383B.38, subd. 1a and 14.50 (2008).
2.
Respondent received due, proper and timely notice of the
charges against him, and of the time and place of the prehearing
conference. This matter is, therefore,
properly before the Administrative Law Judge.
3.
4.
Under Minn. Stat. § 383B.38, subd. 1a, and
5.
The Respondent is in default herein as a result of his
failure to appear at the prehearing conference without the ALJ’s prior consent.
6.
Respondent failed to call to speak with his supervisor or
manager on the second or any succeeding full day of his unexpected absence. This violated the work rules of the Office of
the Hennepin County Attorney and subjected Respondent to dismissal. On five prior occasions, the Respondent was
disciplined for failure to notify his supervisor on the second or succeeding
day of unexpected absence. The County
had just cause to terminate the Respondent for failure to notify his supervisor
of an unexpected absence between February 4, 2009, through February 10, 2009.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY ORDERED:
that the County’s termination of the Respondent for just caused is AFFIRMED.
Dated: July 21, 2009.
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s/Beverly Jones Heydinger |
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BEVERLY JONES HEYDINGER |
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Administrative Law Judge |
Reported: Default
Under