Final Non-Precedential Decision Adopted: November 21, 2000
By: Howard Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on November 2, 2000, at Sacramento, California.
Appellant was present and was represented by Claire Iandoli, Staff Counsel, California State Employees Association (CSEA).
David Beales, Staff Counsel, represented Department of General Services (DGS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
On September 15, 2000, respondent issued appellant a Notice of Automatic Resignation for being absent without approved leave from Friday, September 8 through Friday,
September 15, 2000. Appellant filed a request (appeal) for reinstatement after automatic resignation on September 19, 2000. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.
II - CAUSE FOR APPEAL
By notice dated September 15, 2000, appellant was automatically resigned retroactive to close of business September 7, 2000. Appellant filed a form appeal. At the hearing appellant claimed that he was ill and unable to work from September 8 through September 15, 2000. He also claimed that he had a satisfactory explanation for not having approved leave and that he is currently ready, able and willing to return to work.
III - REASON FOR BEING ABSENT
Appellant testified that on Thursday, September 7, 2000, he worked his regular shift, but did not feel well. On September 8, 2000, he did not report to work because he felt ill. He was coughing, had a headache and his sinuses were full of mucus. He called the front office at the Civic Center complex at around noon and left a message for his supervisor that he was ill and unable to work.
Appellant was ill all weekend. On Monday, September 11, 2000, his wife called Kaiser Permanente and attempted to get an appointment for him to see his doctor. Kaiser scheduled an appointment for the following day, September 12, at 11:00 a.m. At 1:12 p.m., appellant called the front office and left a message for his supervisor that he was still ill and would not be in to work. The message was recorded on an “Important Message” slip and placed in his supervisor’s mailbox.
Appellant’s internist at Kaiser Permanente examined him at approximately 11:00 a.m. on September 12. She testified that when she examined appellant, she determined he had a severe cough and a low-grade fever consistent with pneumonia. She sent him for a chest x-ray and placed him on a two-week course of treatment with an antibiotic (Septra). She also gave him an albuterol inhaler for bronchial spasms.
The internist provided appellant with a visit verification indicating he should be off work through Friday, September 15. On the visit verification she noted that appellant had been ill and unable to work from September 11, 2000. When questioned by the ALJ, she stated that she showed September 11 as the first date he was unable to work because he had advised her he’d been off work on that date. However, she also stated it was likely from the symptoms that he had been ill “three days to a week earlier.”
Appellant’s chest x-ray was negative and he was otherwise able to return to work on September 18, 2000.
Respondent disputed that appellant was ill and unable to work despite the physician’s testimony. Respondent claimed that appellant had been involved, along with another janitor, in a mediation session with his supervisor on the evening of September 7, 2000; and as a result both janitors engaged in an “impromptu job action” by not coming to work. The claim was inconsistent with the evidence, which clearly supported appellant’s claim of illness.
IV - REASON FOR NOT OBTAINING LEAVE
Appellant testified that on Friday, September 8; Monday, September 11; and Tuesday, September 12, he called the office prior to the start of his shift and reported that he would be absent. He told the telephone receptionist his supervisor’s name, the time he was to report to work, the reason he would be absent and requested that the supervisor be notified when he came to work.
When appellant called on September 12, he advised that he would not be in for the remainder of the week because of the flu. The telephone conversations of Monday, September 11, and Tuesday, September 12, were duly recorded and placed in the supervisor’s box. Respondent submitted those notes into evidence.
Respondent did not dispute that the calls were made or received. In fact, respondent had the person who took the Monday and Tuesday calls testify to that effect.
Respondent’s supervisor refused to grant leave to appellant even though the respondent was notified of the absence prior to appellant’s start work time and was provided medical substantiation upon appellant’s return to work on September 18, 2000. The reason for the denial was that appellant did not call the supervisor’s cell phone or, in the alternative, leave a voice mail message for the supervisor on the supervisor’s own line.
Respondent claimed that appellant was not entitled to sick leave because he failed to comply with a verbal directive from the supervisor which was given in May 2000. That directive was that he was to call the supervisor on his cell phone or his office phone (voice mail) to report absences. Respondent also placed in evidence an “Employee Orientation” form, which stated at sections 6-8:
“When an emergency causes you to miss work, you will contact your supervisor to report your absence. This contact should be made in a prompt manner within the first half-hour of your shift. If your supervisor’s shift is different that yours, then the contact shall be within the first half-hour the two shifts coincide.
Satisfactory evidence of a valid use of sick leave for more than two (2) days is required before the request for sick leave can be approved. Supervisors may require substantiation of a need for sick leave for any absence.
All information requests concerning vacation, sick leave, etc. should go to your supervisor.”
Appellant testified that his supervisor verbally informed him that if he was going to be ill to call him on his cell phone or to call the office. He misunderstood that he was being directed to call his supervisor’s office instead of the regular office number. He also testified that on occasions in the past he had called the front office and left messages for his supervisor.
It was unclear from the evidence what difference it would have made if appellant left a voice mail message for his supervisor directly on the supervisor’s line or had a written message delivered to his supervisor before the shift commenced. Either way the supervisor would know he was ill and his expected return to work date.1 Further, both methods would have provided contact in a “prompt manner” consistent with the Employee Orientation form.
In this case the supervisor acknowledged he had that information at the time the shift commenced.
V - READY, ABLE AND WILLING
According to both appellant and his doctor’s testimony, appellant did not have pneumonia and he was released to return to work after September 15, 2000.
Respondent did not contest that appellant is currently ready, able and willing to return to work.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the DPA. Section 19996.2 also provides:
“Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement.”
Pursuant to Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the Court held that an employee terminated under the automatic resignation provision of section 19996.2, has a right to a hearing to examine whether he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that he had a valid excuse for his absence and his failure to obtain leave and that he is currently able to return to work.
In this case, appellant proved by the preponderance of the evidence that he had a valid excuse for being off work, which was that he was temporarily incapacitated by flu. The medical evidence and appellant’s own testimony proved he was unable to work from September 8 through September 15, 2000.
Appellant also proved he had a valid excuse for not having obtained leave. He reasonably believed that by obtaining medical substantiation to present to his supervisor upon his return to work and by promptly notifying respondent of his absence by telephoning the office prior to the start of his shift that he had complied with respondent’s reporting requirements. Further, as set forth above, the evidence did not demonstrate a clear written policy requiring appellant to call his supervisor’s cell phone or his supervisor’s direct line to report an illness. And, the supervisor was provided all the information necessary to fill behind appellant or cover his shift before each shift began.
Therefore, even though appellant was technically out of compliance with verbal instructions from his supervisor, appellant’s reasonable attempts to comply with reporting requirements satisfy the standard of a satisfactory explanation for not having obtained approved leave.
Appellant is ready, willing and able to return to work.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective September 7, 2000, is granted. Appellant should be reinstated no later than ten (10) working days after receipt of this decision.
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FOOTNOTES
1. This statement is not intended to imply that an employer cannot have formal leave requirements for employees, but they should be reasonable, unambiguous and in writing. Further, if an employee has had excessive absenteeism and has been served with a written leave restriction memorandum, the supervisor may reasonably require an employee to speak personally with him/her when requesting leave. Such a leave restriction should also be clearly communicated in writing to the employee. In this case, appellant had a record of excessive absenteeism and was advised in writing he needed to be more punctual. There was no memo requiring a personal contact, however, and the orientation memo did not indicate a need for “direct” contact either.
