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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34816
Experience:  Retired (mostly)
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ToCustomer~ The hearing was today. It was over in

Resolved Question:

ToCustomer~ The hearing was today. It was over in about 10 minutes. Only one rep showed up and she was very polite. The ALJ explained the process and I asked if i could object during her testimony and he said no, so I advised that I objected to all hearsay. He then stated that hearsay was allowed and he may base his decision "solely on hearsay". I then explained that I requested specific dates and times that I was alleged to have refused work and that I also requested a subpoena per my conversation with a judge. He said he was aware of that. 

School A rep then testified to "nothing" and stated she did not have dates or times but she had a copy of an e-mail that was sent to Jane Doe from Jane Doe that I didn't like certain schools, etc. I stated that was speculation, he said it wasn't, he then seemed to reverse what he said about hearsay and made the comment that it is "such hearsay" he didn't know that he could use it (something like that). He then proceeded to chastise the School Rep for not keeping records and how important it was to keep records and why did they not have a phone system?? She said they just didn't, the secretaries call the subs. At that point I really felt like he was rooting for them. 

He then questioned me about the distance etc, I said I was not resistant to long commutes and have driven 45 minutes in one direction, and worked at several schools that required a commute, etc. I then closed my statement with "the employer has not produced any evidence of first hand knowledge that I have refused a bona offer of employment, or that I have not been available for work, or misrepresented information. 

We both walked out of the office and told each other to have a nice day!
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
All I can say is that it appears you did everything right, and that your closing argument emphasized the correct points. I would have objected to the email as substantially more prejudicial than probative and offered totally without any indicia of trustworthiness -- it could have been a complete fabrication. Other than that, if the ALJ rules against you, you'll have to appeal. Based on what you've described, I don't see how you can possibly lose, because for all practical purposes, you testified and the school did not.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
As he was looking at the e-mail document - I said something like, that's speculation more prejudicial than probative, not sure if I used the word substantially (so I did get it in there) That's when he said, well it's not speculative and then mumbled something about "it's so much hearsay that's he's not even sure he can use it".
I got the impression he was telling the school - you have to keep records to win this case - and the school rep shrugged her shoulders like, yeah I know we blew it. I will be surprised if I lost.
Thank you for all the mind bending conversations. I learned a little about law from you and found it really interesting.
Expert:  socrateaser replied 2 years ago.
And, hey, we got to discuss liquor, too!

Let me know how it all turns out.
socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
LOL But we never discussed beer - Firestone IPA Union Jack ;-) Take care.
Expert:  socrateaser replied 2 years ago.
Too much gas. Beer makes me feel like I'm 10 months pregnant.
socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
That CAN be a problem ;-)
Expert:  socrateaser replied 2 years ago.
Yep. Especially for a man (not so much for an Elephant).
socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
I have a question - when he was reading the e-mail and I stated "calls for speculation, more prejudicial than probative, why did he say it was "not speculation"? I realize I probably did not make the statement correctly, but wasn't the employee's allegation in the e-mail "speculative". I got the vibe before I even walked in the door he believed them over me, even though they proved nothing.
Expert:  socrateaser replied 2 years ago.
Speculation is evidence that represents the opinion, rather than the observation of the witness. That is, a witness who is not an expert must generally testify from personal knowledge, with a few exceptions: laywitnesses can state opinions about things which are within the common experience of an ordinary person (e.g., "He looked drunk"; "She was stacked"; "It was a beautiful sunset").

An email stating that "he didn't like certain schools" could mean that the author was voicing an opinion, based upon other undisclosed facts, that you didn't like to teach in certain schools, in which case the statement does indeed call for speculation, because that's not within the common knowledge of an ordinary person -- or, the statement could be based upon your out-of-court statement, which would be an admission -- and which is an exception to the hearsay rule.

What's really at stake in this letter is that we don't have either the sender or the recipient on the witness stand, so there is no means of authenticating the email as what it is purported to be (obj: no foundation). The witness didn't even get the email from the sender or recipient, so the witness has no personal knowledge of whether or not the email came from the sender or recipient. It could be a complete fabrication (obj: no personal knowledge). The statement "didn't like certain schools" is ambiguous -- it could be reasonably interpreted more than one way.

In every circumstance above, the email is clearly and convincingly more likely to confuse or mislead than it is to probe for the truth, therefore its probative value is substantially outweighed by the risk of counfusion and that means the email is inadmissible, even at the level of a UI hearing.

I don't see how the judge can use that email, so if he does, then I believe you have a pretty strong appeal argument.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
I see, that's why he said he wasn't sure if he could use the statement. It's in reference to being "admissible". The rep clearly had no knowledge of the statement. The judge assumed she had "written statements" and she no, she only had a copy of an e-mail, which she had to fumble around to find.

I wonder why they didn't write statements? Would that have been more admissible?
Expert:  socrateaser replied 2 years ago.
If the rep had spoken to you on the phone, or if the rep had obtained the email from the person who spoke to you on the phone, then that would have at least placed a witness in court who knew the source of the email, so that there was some proof that the email wasn't a product of an imaginative author with a word processor. But, that's not what happened. So, like I said, I don't see how this email can possibly be relevant evidence, because there is no proof that it is even the slightest bit trustworthy.

Hope this helps (and, oh yeah, your clicking Accept once in a while would be greatly appreciated).


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Accept - what's that ;-)
Expert:  socrateaser replied 2 years ago.
It's what gives baby new shoes.
Customer: replied 2 years ago.
And shoes are important.
Expert:  socrateaser replied 2 years ago.
Yes -- very. Don't get me started.
Customer: replied 2 years ago.
I won my appeal! :)
Expert:  socrateaser replied 2 years ago.
Of course you did. You did everything right...and (ahem) so did I.

Congratulations!
socrateaser, Lawyer
Satisfied Customers: 34816
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
LOL. Yes YOU did! :) Catch you later.
Customer: replied 2 years ago.
FYI - ""The only evidence of the rejection of job offers was second and third-hand hearsay from secretaries".

"Testimony given at the hearing under oath and subject to cross-examination is generally entitled to greater weight than hearsay statements", "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust".

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