Final Non-Precedential Decision Adopted: April 4, 2000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 1:00 p.m. on March 8, 2000, and at 9:00 a.m. on March 20, 2000, at Sacramento, California.

Appellant was present and was represented by Phillip S. O. Coonley, Labor Relations Representative, California State Employees Association (CSEA).

Jon D. Humphreys, Personnel Analyst, represented Department of Transportation (Caltrans), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Respondent automatically resigned appellant effective close of business January 11, 2000, for being absent without approved leave from January 12 through January 19, 2000. On February 4, 2000, CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf. The appeal complies with the procedural requirements of Government Code section 19996.2.

By letter dated January 20, 2000, respondent notified appellant she was automatically resigned effective close of business January 11, 2000. Thereafter, appellant filed her appeal with DPA claiming she had a satisfactory explanation for being absent without approved leave and that she is currently is ready, willing and able to return to work.

Appellant was suspended from her position as Accounting Officer (Specialist) for the workweek of January 3 through January 7, 2000.

On Friday, January 7, 2000, appellant called her doctor’s office and requested to be placed off work through January 24, 2000. Her doctor was not in the office and did not return until Monday, January 10, 2000.

On January 10, 2000, appellant did not report to work. She called in sick and was granted approved sick leave.

Also on January 10, appellant called her doctor’s office several times regarding her request to be placed off work. The nurse advised appellant she would call her when the doctor prepared the off work order. Appellant did not receive a call back that day.

On Tuesday, January 11, 2000, appellant reported to work at 6:45 a.m. She spoke with her supervisor at approximately 8:45 a.m. but did not advise her that she was ill or unable to work.

The supervisor attended a team meeting from approximately 7:15 a.m. to 9:00 a.m. that morning. After the meeting, she had an appointment from 9:00 a.m. to 10:30 a.m. and took her lunch hour from 12:20 p.m. to 1:15 p.m. Otherwise she was at her work site.

At approximately 7:30 a.m. on January 11, 2000, appellant called the Personnel Services Specialist who handles personnel work for her unit. She left a voice mail requesting to meet with the Personnel Services Specialist regarding timesheet “issues.” The Personnel Services Specialist called appellant and told appellant if her issues involved her leave balance, appellant should go through her timekeeper and it could be resolved by phone or mail. Appellant told the Personnel Services Specialist she had “other issues” to discuss and made an appointment with the Personnel Services Specialist for 1:00 p.m. At 7:54 a.m., the Personnel Services Specialist sent an E-mail to the supervisor advising her of the inquiry and the scheduled meeting.

Sometime during the same morning, appellant got a call from the physician’s office advising her, the off-work order was ready. During the lunch hour, appellant went to the doctor’s office and obtained the order placing her off work from January 11 through January 21, 2000.

At approximately 12:30 p.m., appellant returned to the office. She left shortly after returning to meet with the Personnel Services Specialist in Personnel. During the meeting, appellant asked the Personnel Services Specialist about the impact of the prior week’s suspension on her workweek. The Personnel Services Specialist advised her she would check with Labor Relations. Appellant told the Personnel Services Specialist she had a doctor’s excuse for one and one-half weeks. The Personnel Services Specialist directed her to go back and discuss her need for leave with her supervisor.

Appellant returned to her work site at approximately 1:15 p.m. She testified she went to her supervisor’s cubicle but the supervisor was not present. She said she left a copy of the off work order on the supervisor’s chair. The supervisor testified she was in the office at 1:15 p.m. and she did not find a note on her chair on that day or any day following January 11, 2000.

Appellant testified she went to the Branch Chief’s cubicle and he was not there either. The Branch Chief testified he was also in the office at 1:15 p.m. He remembered seeing appellant from approximately 25 feet away at 1:15 p.m. He noted the time because he was surprised to see her back from Jacob’s office by that time. He thought it must have been a short meeting. She did not approach him or request leave from him.

Appellant testified she next approached the Associate Accounting Analyst and her leadworker. She told the Associate Accounting Analyst she needed to leave and asked him to let the supervisor know. She also told him she would not be back until January 24, 2000. She stated the Associate Accounting Analyst asked her if she had a doctor’s excuse; and she responded, “yes,” but the Associate Accounting Analyst did not ask to see it. The Associate Accounting Analyst testified that when appellant approached him she did not tell him she had a doctor’s note. He also testified she did not say she was going to be out ill and did not give him any reason for being off work.

Appellant further testified that after speaking with the Associate Accounting Analyst she checked the supervisor’s cubicle once more and the supervisor was not there. Appellant left the office and did not return until January 24, 2000. During her absence she did not call and did not provide other medical substantiation for her absence.

Appellant testified she was ill and unable to work from January 11 through January 21, 2000, because of high blood pressure, chest pains, toothaches and headaches due to a hostile environment at work.

The physician testified she examined appellant on December 20, 1999, and determined appellant was suffering from job-related anxiety. She testified appellant’s blood pressure was “higher than it usually was.” She did not identify what appellant’s blood pressure had been or what it was on December 20, 2000. The physician did not prescribe medication or treatment at that time. She recommended appellant seek the assistance of respondent’s Employee Assistance Program (EAP) so that “her situation could be brought under control without needing to have time off from work.”

On January 7, 2000, appellant contacted her physician’s office and requested some time off, from work because her “symptoms were remaining about the same.” As a result, her physician prepared an off work order for January 11 through January 21, 2000, based upon appellant’s symptoms of anxiety and pressure in her head and chest which she noted December 20, 1999, and upon appellant’s claim that she needed to be off work on December 7, 2000.

The physician felt appellant needed time off from work and the two weeks suggested by appellant were reasonable.

Appellant testified that she left a copy of the off work order from her physician on her supervisor’s chair at approximately 1:15 p.m., when she returned from seeing the Personnel Services Specialist on January 11, 2000. (The supervisor never found the copy of the off work order.) Appellant also testified that after she left the note she spoke with the Associate Accounting Analyst and said she would be off work to January 24, 2000. She considered her supervisor and the Branch Chief unavailable because they were not in their cubicles when she stopped by around 1:15 p.m. She made no efforts to find either one of them, however, other than looking in the cubicles.

Appellant testified that she had pretty much communicated with her supervisors by E-mail for the prior two months because of the hostility in the office. On the morning of January 11, her E-mail was not working. She testified she didn’t leave a voice mail for her supervisor because the normal procedure was to “go to [Associate Accounting Analyst].” She claimed the Associate Accounting Analyst had approved many of her prior leave requests.

Both the supervisor and the Associate Accounting Analyst testified the Associate Accounting Analyst did not have authority to approve or disapprove leave requests. In December when appellant had misdirected a request to the Associate Accounting Analyst, she received a note advising her to redirect her request to the supervisor. Further the supervisor testified that employees were required to direct their requests for leave to her, not the leadworker.

Appellant testified she did not follow up with a phone call or a fax to her supervisor because the past practice was that she would notify the Associate Accounting Analyst and he would let the supervisor know if she needed leave. If there was a question the supervisor called her. The supervisor testified the policy was to contact her and request leave. She had only called appellant once in the past and that was to verify appellant was really ill and to find out if there was anything urgent upon her desk.

It is found that appellant did not take reasonable steps to locate either her supervisor or Branch Chief on January 11 or following to request approved leave for the afternoon of January 11 and for January 12 through 21, 2000. Further, her reason for leaving work and the nature of her illness did not constitute an emergency which required her to leave so abruptly that she could not submit her leave request to someone in authority.

Appellant re-contacted her physician on or before January 19, 2000 and asked for a return to work order. She advised her physician that she needed a note which stated she could return to full duties without restrictions. The physician prepared the return to work order on January 19, 2000. Appellant presented it to respondent when she attempted to return to work on January 24, 2000.

The physician did not reexamine appellant until January 31, 2000. On that date she concluded appellant was ready, able and willing to return to work. The return to work order was issued based upon appellant’s representation to her that she felt ready to return, not upon any physical examination.

Appellant testified the reason she suffered from anxiety and needed time off work was the hostile environment at work. She had filed a grievance on December 20, 1999, complaining of a significantly higher workload than her coworkers. The grievance was denied. She stated she was informed “[appellant] can do it.” She was served with a disciplinary suspension for January 3 through January 7, 2000. She also testified she communicated with her immediate supervisor primarily by E-mail because of the stressful and hostile environment.

Both appellant and her doctor believe the stressful environment at work causes her medical problems. Nothing in that environment has changed and appellant did not receive any medicine or treatment to resolve her reaction to the stressors in her workplace.

 

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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 proved by the preponderance of the evidence that she had a valid excuse for being off work from January 11 through January 21, 2000. She was suffering from anxiety and stress and needed time away from work to reduce her anxiety.

Appellant did not prove that she had a valid excuse for not requesting leave. Her medical condition did not require medication and was not of a nature to excuse her from comply with respondent’s standard policy. That policy reasonably required that she contact her supervisor or someone else in authority to request leave approval and to provide adequate medical substantiation. An employer has the right to know when and approximately how long an employee will be off work in order to reassign and direct workflow to other staff.

Appellant’s testimony was not convincing that she was abruptly required to leave her work site without making a genuine effort to contact her supervisor or Branch Chief and request a one and one-half week leave of absence. Her testimony that she had no obligation to follow up with a telephone or faxed request for extended leave was also unconvincing, in light of the nature of her illness and the testimony regarding leave procedures received from the Branch Chief, the supervisor and the Associate Accounting Analyst.

Whether or not appellant is currently able to return to work is unclear since nothing has changed respecting her work environment which she and her doctor claim has caused her anxiety. Appellant still considers the work site as an unfriendly and hostile environment.

For the reasons set forth above, the appeal should be denied.

 

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that the appeal for reinstatement after automatic resignation effective January 11, 2000, is denied.