Final Non-Precedential Decision Adopted: April 6, 2001
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 March 14, 2001, at Sacramento, California.
Appellant was present and was represented by Mark N. DeBoer, Attorney, California State Employees Association (CSEA).
James E. Toomey, Jr. represented the State Compensation Insurance Fund (SCIF), Department of Industrial Relations, respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
Respondent automatically resigned appellant for being absent without approved leave from December 20, 2000, through January 17, 2001. CSEA filed a request (appeal) for reinstatement after automatic resignation on behalf of appellant on January 30, 2001. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.
By letter dated January 17, 2001, respondent notified appellant that she was to be automatically resigned retroactive to December 7, 2000, the last date she worked. Appellant filed a form appeal through her CSEA representative. At the hearing, appellant claimed that she was medically unable to work and that she had a satisfactory explanation for not having obtained leave for the period December 20 through January 17, 2001. She also claimed she is currently ready, able and willing to return to work.
Appellant testified that she was absent from work December 20, 2000, through January 17, 2001, due to work-related stress, headaches and an upset stomach. She stated the stress was caused by a heavy workload, which she encountered upon her return from vacation.
Appellant’s testimony was in part supported by the testimony of a Nurse Practitioner at the Westlake Medical Clinic (clinic), Stockton, California, and by patient records from the clinic. The Nurse Practitioner testified she first met with appellant at the clinic in April or May 2000, to provide family planning advice. At that time the Nurse Practitioner prescribed birth control medication for appellant. The Nurse Practitioner again saw appellant on December 8 and December 19, 2000. During those visits appellant complained of headaches and an upset stomach. She also told the Nurse Practitioner she was suffering work-related stress. The Nurse Practitioner next saw appellant on January 17, 2001. The Nurse Practitioner noted in appellant’s patient record the following chief complaint: “vomiting x 1 week, hair loss, birth control pill for a couple of months.” The Nurse Practitioner also noted in the record, “she is on Triphasil and it is causing her to have nausea and a queasy feeling to her stomach. She needs [sic] 1 pill for a couple of days and feels light-headedness. She has runny nose. She has been going to a doctor regarding her hair loss. She feels tired. She denied she has a fever.” On January 17, 2001, based upon the symptoms appellant described, the Nurse Practitioner switched appellant’s contraceptive to Ortho Novum 777.
Appellant did not obtain an excuse to be off work from the Nurse Practitioner when she met with the Nurse Practitioner on December 8. However, on December 11, 2000, the Nurse Practitioner provided appellant with an excuse taking her off work retroactive for the period of December 8 through December 20, 2000. She took appellant off work based solely on appellant’s subjective complaints.
When the Nurse Practitioner met with appellant on December 19, 2000, she provided her with another excuse from work for the period December 19, 2000, through January 3, 2001. When she saw appellant on January 17, 2001, she excused her from work through January 18, 2001.
The only objective symptom the Nurse Practitioner noted during the period, December 20, 2000, through January 17, 2001, to support a claim of stress was slightly elevated blood pressure. The patient records for appellant demonstrated that on December 19, 2000, appellant’s blood pressure was measured 132/80; and on January 17, 2001, her blood pressure measured 122/72. (The Nurse Practitioner indicated a desirable blood pressure would be 120/80.) However, the Nurse Practitioner never placed appellant on any blood pressure medication.
The Nurse Practitioner prescribed Flexeril (10 mg) for muscle tenderness (December 8, 2000) and Tagamet for appellant’s upset stomach and Motrin for the headache (December 19, 2000).
A physician did not see appellant during the period December 8, 2000, through January 17, 2000. A family practice physician runs the Westlake Medical Clinic. The Nurse Practitioner testified she worked under the physician’s supervision. Appellant’s patient records, which were prepared by the Nurse Practitioner, were reviewed and initialed by the physician. The physician was not advised that the Nurse Practitioner provided off work excuses for appellant. The patient records made no mention that the Nurse Practitioner was providing off work excuses, either.
Appellant did not prove that she had any illness or injury which prevented her from working. The evidence merely proved the following. Appellant was receiving family planning assistance at the clinic. The medication which she was first prescribed likely caused adverse symptoms including headaches and queasiness. A different medication was eventually substituted. During her visits to the clinic, appellant complained to the Nurse Practitioner that her job was causing her stress. During the period at issue, appellant was not treated for stress. Nor was she treated for high blood pressure. There was no reliable evidence of clinical depression or other medical condition requiring her to be off work.
Appellant was on vacation from November 17 through December 4, 2000. She worked December 5, 6, and 7, 2000. On Friday, December 8; Monday, December 11; and Tuesday, December 12, 2000, she did not report to work. She left early morning voice mail messages each day for her supervisor informing her that she was ill. The message she left on the third day of her absence (December 12, 2000) was something to the effect of, “I have been to the doctor and they have taken me off work through December 19, 2000.”
On December 12, 2000, appellant’s supervisor called and left a voice mail message reminding her she needed medical substantiation before her absence from December 8 through December 19 could be approved. That same day the supervisor also mailed her a certified letter reminding her of her obligation to provide medical substantiation for the period requested and directing her to provide substantiation no later than December 14, 2000.
Appellant was notified of the certified letter by the post office but did not accept delivery. It was returned to respondent as unclaimed mail.
On December 18, 2000, appellant provided respondent with incomplete substantiation. She forwarded a copy of the excuse the Nurse Practitioner provided her on December 11, 2000. It stated appellant was seen on December 8, 2000 and should be off work from December 8 through December 19, 2000. The excuse did not advise respondent of the general nature of appellant’s illness or any restrictions, which might apply upon her return to work.
On December 19, 2000, appellant left another voice mail message for her supervisor. She stated her doctor had excused her from work through January 2, 2001.
On December 19, 2000, the supervisor sent appellant a letter by regular and by certified mail. The letter requested appellant provide supplemental information regarding the excuse submitted for the period December 8 through December 19, 2000, no later than December 22, 2000. It also warned appellant that any time off work would be considered unapproved unless adequate substantiation was provided.
Also on December 19, 2000, the supervisor called appellant. Appellant did not answer the phone. She left appellant a voice mail message that a letter was in the mail to her and that the letter was important. The message also informed her of the contents of the letter. Neither copy of the letter was returned. Appellant’s mother accepted delivery of the certified copy on her behalf. (Appellant lives with her mother.)
Appellant did not respond to either the voice mail message or the letter by December 22, 2000. She did not submit the supplemental medical substantiation for the period December 8 through December 19, 2000. She also did not submit any medical substantiation for the period commencing December 20, 2000.
On December 28, 2000, appellant left a voice mail message for her supervisor. The message was something to the effect of “I need a claim’s form.” The supervisor responded by letter dated January 2, 2001, advising appellant she was unsure of the nature of the form being request but was enclosing an Employee Claim Form for reporting any work-incurred injury. The letter also advised appellant that, as of that date, respondent had no medical substantiation for appellant’s absence from December 20, 2000 through January 2, 2001, and that the medical substantiation for December 8 through December 19, 2000 was incomplete. The letter warned appellant she would be considered absent without approved leave for the time off work unless the substantiation was provided. It directed appellant to submit all required medical substantiation no later than January 9, 2001. Appellant did not submit any additional medical substantiation prior to her automatic resignation.
Appellant’s supervisor attempted to reach appellant by telephone on January 2, January 5 and January 8, 2001, during regular work hours. She was unable to reach appellant on any of those occasions. Appellant left early morning voice mail messages for her supervisor on each of those occasions (before the supervisor reported to work). The first message was that she would not be coming into work for the remainder of the week. The second was that her supervisor was “difficult to reach.” The third was that she had an appointment and would call again later. (She did not.) During the entire period from December 8, 2000 until appellant was automatically resigned, the supervisor was unsuccessful in reaching appellant by phone to discuss the absence.
The supervisor’s frustration in not being able to reach appellant and find out why she was off work was evident in the letter she sent to her on January 2, 2001. It stated in relevant part:
“I have no idea what is keeping you from your job. It is unfortunate that we are forced to communicate through voice mail and the postal service. I would prefer to talk to you directly and ask that you call me during normal work hours to clarify or discuss the situation.”
Appellant admitted that between December 8, 2000, and her automatic resignation, she never spoke with any one at SCIF and she never submitted any medical substantiation other than the December 11, 2000 excuse from the Nurse Practitioner. Her supervisor confirmed by her testimony that appellant did not submit any documentation regarding her absence from December 20 through January 17, 2001. She stated that as of January 17, 2001, the only note she received from appellant was the one dated December 11, 2000, and it was incomplete (as noted above).
Appellant testified that she did not call her supervisor during work hours because she spent most of the days sleeping and she was taking a muscle relaxant (Flexeril) and Motrin. She testified she knew her mother signed for “something” and she “knew they [her supervisor] sent something,” but was unaware her supervisor had left any voice mail messages for her. She stated she never requested a leave of absence because she did not know one was required. Finally, she claimed no one told her that her manner of reporting her absences was unacceptable.
Appellant testified she is ready, able and willing to return to work. She stated that on January 17, 2001, she visited the Nurse Practitioner at the clinic and told her she wanted to go back to work. The Nurse Practitioner then gave her a medical excuse releasing her to return to work on January 18, 2001, the next day. She then called the Claims Manager in San Francisco and left a message that she wanted to return to work and had a release for January 18, 2001. The Claim Manager told her she needed to pick up correspondence. The correspondence turned out to be her notice of automatic resignation.
The Nurse Practitioner confirmed that she saw appellant on January 17, 2001 and appellant told her she wanted to go back to work on January 18, 2001. The Nurse Practitioner then executed the release to return appellant to work on January 18, 2001, based solely upon appellant’s statements to her.
After she received the notice of automatic resignation, appellant went back to the clinic and requested to be placed off work. On February 8, 2001, she was seen by the Nurse Practitioner. She did not tell the Nurse Practitioner she had been terminated. Instead, she complained to the Nurse Practitioner that she had stomach pain, headache, heartburn, nausea, indigestion and an “anxiety disorder.” The Nurse Practitioner determined “she should be referred to a psychiatrist for gastritis, depression, stress, an anxiety disorder and a headache.” She also prescribed “Celexa” and provided appellant with an excuse from work which was retroactive in part. It excused her from January 18, 2001, to March 9, 2001. She recommended a return visit in one month.
On March 9, 2001 appellant returned to the clinic. She told the Nurse Practitioner she had been terminated. (It is not known whether she told the Nurse Practitioner she was scheduled for a hearing the following week.) Appellant asked the Nurse Practitioner to extend the off work period to March 15, 2001, which the Nurse Practitioner did. Coincidentally, the return to work date was the day following the scheduled hearing.
The Nurse Practitioner testified she “told me she felt better.” She admitted she took appellant off work due to her subjective complaints and she returned her to work based on her subjective statement that she felt better and could work again on March 15, 2001.
When asked why she now felt ready to return to work, appellant stated she felt stronger. She testified “I have had time to be stronger.” The only current medication she is on is a birth control medication.
* * * * *
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 that 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.
In this case appellant has not provided a satisfactory excuse for being off work from December 20, 2000, through January 17, 2001. Appellant may have had headaches and a queasy stomach due to birth control medication from December 8, 2000, through January 17, 2001. She may have had anxiety about her workload. However, there was no credible medical evidence to demonstrate an illness or injury so serious as to merit her being off work from December 20, 2000, through January 17, 2001.
Appellant has not provided a satisfactory reason for not obtaining leave. Appellant’s behavior during her off work period demonstrated a tremendous lack of responsibility towards her job. That behavior included not being available during regular working hours to accept telephone calls from her supervisor, not accepting delivery on certified letters, not reading documents mailed to her by regular mail, not returning calls from her supervisor during regular business hours, and not providing requested medical substantiation not only for December 20, 2000, through January 17, 2001, but also for the period immediately preceding December 20, 2000.
Appellant testified she is currently ready, able and willing to return to work. The record did not establish that appellant was ever unable to work. Appellant appeared to be unwilling to work for the period December 20, 2000, through January 17, 2001.
For the reasons set forth above, it is concluded that appellant should not be mandatorily reinstated to her former position.
that the appeal for reinstatement after automatic resignation effective December 7, 2000, is denied.