Final Non-Precedential Decision Adopted: September 7, 2000
By: Howard Schwartz, DPA Chief Counsel
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 2, 2000, and at 9:00 a.m. on August 8, 2000, at Sacramento, California.
Appellant was present and was represented by Jorge Salinas, Labor Relations Representative, California State Employees Association (CSEA).
Dave Paulsen, Staff Counsel, represented Employment Development Department (EDD), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
Appellant was automatically resigned effective close of business February 8, 2000, for being absent without approved leave from that date until close of business March 14, 2000.1 On March 29, 2000, appellant filed a request (appeal) for reinstatement after automatic resignation. The first day of hearing was held on May 2, 2000. A second day of hearing was scheduled for June 20, 2000, but was continued to August 8, 2000, for good cause shown. The appeal complies with the procedural requirements of Government Code section 19996.2.
By letter dated March 14, 2000, respondent notified appellant that effective March 21, 2000, she would be considered to have automatically resigned retroactive to close of business February 8, 2000. Thereafter, appellant filed her request for reinstatement with DPA claiming she was unable to work because of illness and that she had a satisfactory reason for not obtaining approved leave. Appellant also claimed that she is ready, willing and able to return to work.
Appellant last worked in November 1999. She was under the care of a physician from August 6, 1999, through April 14, 2000. The physician examined appellant on the following dates: August 6, August 24, September 17, October 1 and December 8, 1999. He also examined her on January 24, March 20 and April 14, 2000. The physician testified that during the above period, he treated appellant for high blood pressure and depression.2
Between November 17, 1999, and January 24, 2000, the physician prepared three “Disability Certificates” (certificates) for appellant. Each certificate placed her off work because of depression and/or uncontrolled blood pressure. The certificate, which the physician prepared on January 24, 2000, indicated appellant could return to work part time beginning February 2, 2000.3
Appellant was scheduled to return to work on February 8, 2000. She did not report and did not go back to her physician to get a new certificate of disability. Instead, she called her manager on February 9, 2000, and told her manager she was not coming to work because she was still ill. The manager advised appellant that she was rescheduled for work on February 15, 2000, and would be getting a letter to that effect.
Appellant received the letter but did not report back to work on February 15 either. On February 22, 2000, she called and told her supervisor she could not report to work. She also told her supervisor that her doctor still had her under his care. In fact, appellant had not been back to see her doctor since January 24, 2000, when he prepared the certificate releasing her to return to work on February 2, 2000.
On March 1, 2000, appellant called work and told her supervisor her blood pressure was not regulated, the doctor had changed her medication and he was still trying to stabilize it. She called again on March 6, 2000, and stated her blood pressure was still not regulated, that she needed more medicine and that she still needed clearance from her doctor. In fact, appellant’s doctor had prescribed new medication in December 1999. When she went to her January 24 visit, she told the doctor she had not filled the prescription. Her doctor noted her blood pressure was elevated. However, he also noted that, even with the elevation, she did not have any cardiac symptoms. At that time, he prepared the certificate releasing her return to work part time effective February 2, 2000.
Appellant did not return to her job or her doctor any time between January 24 and the date she was automatically resigned.
Appellant was mailed a Notice of Automatic Resignation on March 14, 2000. The notice was mailed to the address, which she had provided her employer. Appellant claimed that she did not receive her copy of the notice until after March 20, 2000. However, on March 20, 2000, appellant went back to the physician and was treated for a sinus infection. She told her physician she was scheduled to return to work on March 27, 2000, which was untrue. She asked for and was provided a disability certificate stating she had been unable to work from February 2 through March 24, 2000.
The physician testified that he examined appellant on March 20, 2000, treated her sinus problem and issued a disability certificate retroactive to February 2, 2000, based upon appellant’s representations to him regarding her health. The physician further testified that with respect to appellant’s health during the period of February 8 through and March 14:
“... I can’t provide you with an assessment; I did not see her during that period of time. I saw her, according to my records, in – January 24th and didn’t see her again until March 20th.”
Appellant claimed she was unable to work from February 2 through March 14, 2000, because of uncontrolled blood pressure and depression. She did not explain why she made the misrepresentations regarding her physician’s care or why she did not obtain a timely certificate for the period of her unauthorized absence.
On December 6, 1999, respondent issued appellant an “Attendance Restriction” memorandum based upon her excessive absenteeism (which extended back to 1998). The memo set forth the following restrictions regarding sick leave usage:
1. “Use of vacation leave in lieu of sick leave will not be allowed.
2. Vacation leave usage will require 24 hours approval prior to taking the time off.
3. All types of sick leave charges will require a doctor certification for every day you are out on sick leave and must state that you were unable to work during each day you were off work.
4. The doctor certification must state that you were seen by a physician, date seen and date of return to work. You need to give this doctor certification to your supervisor the next working day or you need to mail it to EDD the same day you were seen by your physician. (See #4.)
5. When requesting sick leave do not leave a voice mail message on the phone, you must talk to one of the supervisors listed below. Also, you are to call in no later than ½ hour after your starting time of 8:00 a.m.: Linda Roberts [phone number deleted], Beverly Little [phone number deleted], Deborah Gatlin [phone number deleted].
6. Your failure to speak to a supervisor listed above may be treated as an unapproved absence without leave. If you are absent without leave for five consecutive work days, you may be separated from State service.”4
Appellant was still subject to the attendance restrictions set forth in the December 6, 1999, memo at the time she was automatically resigned. At first, appellant complied with the restrictions. She called and submitted disability certificates covering her through February 1, 2000. The last certificate showed an expected date of return to work, which was February 2, 2000.
On January 24, 2000, she called work and advised her supervisor she had a doctor’s certification covering her through February 2 which she would bring in that afternoon. She brought the certificate into the office and gave it to the manager that same day. On February 4, 2000, she called her supervisor to find out if she was scheduled to work on Monday, February 7. She was told to report Tuesday, February 8. She did not request additional time off.
Beginning in February, appellant no longer complied with the reporting requirements. On February 8 she did not return to work and she did not call a supervisor. On February 9, 2000, appellant called and reported that she was too ill to work. She was advised that she was rescheduled for February 15, 2000, and a letter had been mailed to that effect. The letter, which was mailed to appellant, stated:
“If you are unable to return to work on this day, we need substa[ntia]tion sent to us by your physician, before the above date.” [Emphasis added.]
It also warned her that she would be put on unapproved leave for any future absences, which were not substantiated.
Appellant did not follow the reporting requirements on February 15. She did not report to work and did not call a supervisor. She did not contact her physician and arrange for substantiation for further absence.
Appellant only called her supervisor and manager three times after February 15 and before March 14, 2000 (the date of her automatic resignation). She called her supervisor on February 22 and March 1, 2000, and she called her manager on March 6, 2000. Otherwise, she did not contact her manager or supervisor to report she would not be at work and her absence was considered unexcused because of her failure to call and provide current medical substantiation to be off work.
Appellant testified that she believed she was not required to provide medical substantiation to respondent until she was actually released to return to work. She went back to her doctor on March 20 and told him she was ready to return to work on Monday, March 27. He gave her a release. She carried the release into the work place and left it on her former supervisor’s chair at approximately 2:40 p.m. At approximately 3:30 p.m. she called and asked the former supervisor if she had received the note.
Appellant claimed she had not received the Notice of Automatic Resignation mailed March 14, 2000, when she left the note on her former supervisor’s chair on March 20, 2000. Appellant’s claim was suspect. She had not spoken with her supervisor or manager since March 6 when she suddenly appeared in the office with a work release on March 20. Further, she did not speak to or seek out her supervisor or manager but left the note on a chair and later called in to verify its receipt.
Appellant did not explain why she did not otherwise follow the respondent’s reporting requirements set forth in the absenteeism memo of December 6, 1999, and the letter of February 8, 2000, by providing timely medical substantiation of a need to be off work from February 8 through March 14, 2000, and by calling her supervisor each day she was ill.
The physician testified that on March 20, 2000, he treated appellant and released her to return to work effective March 27, 2000, because she reported to him that while she was off work, her anxiety symptoms had decreased and she was taking less medication. He also examined appellant on April 14, 2000. At that time he noted her blood pressure was up again and he gave her new medicine. Appellant told her physician she was “having some racing heart – racing heart rate and felt that her pulse was irregular,” although he didn’t document any irregularities in her pulse. He determined at that time she had primary major depression. Nevertheless, he considered her able to return to work full time, without restrictions.
Respondent conceded appellant is ready, willing and able to return to work.
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/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/she 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 the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
Appellant did not prove by the preponderance of the evidence that she was medically incapacitated and unable to work from February 8 through March 14, 2000. Although she testified she was suffering from elevated blood pressure and depression which made her unable to work, her testimony was not corroborated by the January 24, 2000, certificate of the physician or by his testimony regarding her care. The physician released appellant to work four (4) hours per day beginning February 2, 2000. And, he testified he was unable to assess appellant’s medical condition between February 2 and March 20, 2000, because he did not communicate with or examine appellant during that time period. Consequently, there was no reliable evidence upon which to base a finding that appellant was incapacitated between February 8 and March 14, 2000.
Appellant did not prove that she had a satisfactory reason for not obtaining leave. Appellant did not explain why she did not return to her physician for a reevaluation of her medial condition prior to February 8 or even February 15, 2000, if she felt she was still unable to work, as scheduled. The physician testified that in January he told her if she was not feeling capable of returning to work to please return to see him prior to any decision of that sort. Also, her manager directed her in writing and over the telephone to obtain timely medical certification if she did not plan to return to work. She disregarded her doctor’s and her employer’s directives.
Appellant’s claim that she did not believe she was required to provide medical substantiation until she was ready to return was not credible in light of her prior conduct, the directives or her employer and her physician’s testimony.
It is undisputed that appellant is ready, willing and able to return to work.
For the reason set forth above, the appeal should be denied.
that the appeal for reinstatement after automatic resignation effective February 7, 2000, is denied.
1. Appellant was a permanent intermittent employee. She was released to return to work effective February 2, 2000. However, she was not scheduled to work until February 8, 2000. When she did not report on February 8, her return to work date was changed to February 15, 2000.
2. The physician also treated appellant for unrelated conditions (acne, endometriosis, diarrhea etc.).
3. The physician initially testified he extended her disability to February 15, 2000. However, the certificate she provided her employer stated she could return to work February 2, 2000. Upon cross-examination, the physician acknowledged the date of release was February 2, 2000.
4. Appellant was a permanent intermittent employee. As a permanent intermittent she was also subject to the three-waiver rule. DPA Rule 599.828 provides for the automatic resignation of a permanent intermittent employee who waives three offers to come to work unless the employee is ill or has other good cause for not reporting. The rest of the attendance memorandum dealt with appellant’s waiver of two requests to report, call in or bring a doctor’s certification and a warning regarding the consequences of a third waiver.