DPA Case Number 02-G-0032 - Reinstatement After Automatic Resignation (3 W)
Final Non-Precedential Decision Adopted: October 3, 2002
By: Howard Schwartz, Chief Counsel
DECISION
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 12, 2002, at Riverside, California.
Appellant was present and was represented by Jill Middleton, Labor Relations Representative, California State Employees Association (CSEA).
Chian He, Staff Counsel, represented the Employment Development Department (EDD), respondent.
The record remained open until close of business July 31, 2002, to allow appellant to present testimony from his health care provider and to allow the parties to file closing arguments.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Respondent resigned appellant as of close of business on January 17, 2001, based upon his waiving three requests to report for work pursuant to DPA Rule 599.828. The notice listed May 30 through June 1, 2001, November 13 through 19, 2001, and January 14 through 18, 2002, as the three periods appellant waived reporting to work.
Respondent served appellant with notice of automatic resignation by mail on February 22, 2002. Appellant filed a request (appeal) for reinstatement after automatic resignation on March 25, 2002. The notice and appeal comply with the procedural requirements of DPA Rules 599.828 and 599.904.
II - CAUSE FOR APPEAL
Appellant argues he did not voluntarily waive his right to employment because he was ill. He contends he contacted his employer every time he did not report to work and that he provided medical substantiation of his illness each time he was asked to do so. He also contends he did not receive notice he was to report to work January 14 through 18, 2002.
Appellant also alleges he was not properly notified to report to work because instead of calling, respondent mailed his schedule to him.
III - PROCEDURAL ASPECTS
At hearing on June 12, 2002, respondent made hearsay objections to several statements and documents submitted by appellant regarding his medical ability to work. The ALJ advised the parties she would not base a decision about medical condition or ability to work on hearsay evidence. (Government Code section 11513(d)). Over respondent’s objection, the record was held open to allow telephonic testimony from appellant’s medical provider and to allow respondent the opportunity to cross-examine.
After the hearing, respondent renewed its objection to the medical provider’s testimony in a letter dated June 28, 2002. Appellant was given an opportunity to respond. On July 15, 2002, the ALJ advised the parties the record would close on July 31, 2002, and they should submit “any additional argument or input” by close of business that day.
On July 31, 2002, respondent submitted a written closing argument and appellant submitted a declaration from the Director of the East West Medical Group. This declaration indicates appellant has been under the care of the East West Medical Group since January 23, 2001; that a final consultation and evaluation was performed on March 15, 2002; and that appellant was released to resume his normal work activities as of March 18, 2002. It does not address whether or not appellant was able to work during the relevant periods. Respondent did not have an opportunity to cross-examine appellant’s health care provider. This declaration is hearsay. Consistent with respondent’s objections and Government Code section 11513(d), this declaration cannot be used as a basis on which to make a determination that appellant cannot be charged with a waiver for May 30 to June 1, 2001; November 13 to November 19, 2001; or January 18, 2002. (See also Windigo Mills v. California Unemployment Insurance Appeals Board (1979) 92 Cal. App. 3d 586.)
Appellant’s representative left a voicemail message for the ALJ on or about August 7, 2002 indicating she was awaiting further instructions regarding closing arguments. On or about August 9, 2002, the ALJ left a voicemail message for appellant’s representative informing her the record closed on July 31, 2002.
Appellant submitted a written closing brief on August 12, 2002, explaining she “misunderstood” the instructions in the ALJ’s June 28, 2002 letter.
Respondent objected to appellants’ late filing of the brief contending that a misunderstanding regarding the ALJ’s order does not represent good cause. Respondent also objected to any ex parte communication.
The late filing of the closing argument is excused. Appellant should not be penalized by miscommunication or by his representative’s good faith error. (See Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364; Civil Service Commission v. Velez (1993) 14 Cal.App.4th 115.)
The ex parte communication is also proper. Government Code section 11430.20 allows for communication regarding a matter of procedure that is not in controversy.
IV - PRELIMINARY FACTS
Appellant passed the bar examination and became an attorney in approximately 1996. Thereafter he started a private law practice. Respondent was aware of appellant’s private practice. In 1998, respondent adjusted appellant’s work hours to accommodate appellant’s new business. Appellant testified he was released to return to work in March 2002.
Appellant has not reported to work for respondent since July 17, 2001. On January 18, 19, 24, and 25, 2001, appellant left voicemail messages saying he was ill and his physician advised him to be off for a couple of weeks. He also stated in a voicemail message he would send respondent a note from his physician verifying his inability to work during this period.
On February 23, 2001, respondent wrote to appellant telling him he needed to submit the previously promised medical verification. It also reminded appellant it was his responsibility to provide written substantiation from a health care provider and to notify the department of his anticipated return to work date. Respondent advised appellant he was scheduled to work on March 1 and 2, 2001. It also told appellant that failure to report to work or to provide written medical verification for his absence would result in his being considered absent without leave.
On or about March 1, 2001, appellant sent respondent a letter saying he would not be able to work on March 1 and 2, 2001 because he was ill. He also sent a medical slip indicating he was advised to return to work after April 15, 2001. Appellant was not charged with a waiver for March 1 and 2, 2001.
Respondent notified appellant by letter dated April 12, 2001 he was scheduled to work on April 16, 2001. Appellant testified he responded to this letter by mailing and faxing respondent a doctor’s note saying he was unable to work on this day. Appellant’s testimony was not rebutted. Appellant was not charged with a waiver for April 16, 2001.
Respondent notified appellant by letter dated May 25, 2001, that he was scheduled to work on May 30, May 31, and June 1, 2001. Appellant testified he left a voicemail message for his supervisor telling him he was ill and unable to come to work. The supervisor testified he did not receive this message.
On or about June 4, 2001, respondent sent appellant a letter informing him that because he did not contact his supervisor and did not come to work, he was being charged with a waiver under DPA Rule 599.828. Respondent also told appellant to keep respondent informed of his availability.
Appellant took no affirmative action to correct respondent regarding the alleged phone call to his supervisor. He did not provide medical documentation to respondent substantiating his alleged illness on May 30, May 31, and June 1, 2001. He did not produce at hearing any medical documentation or testimony from any health care provider verifying his inability to work during this period.
On or about June 14, 2001, appellant faxed a medical note to his supervisor indicating he was to remain off work until July 18, 2001. The note was dated June 6, 2002.
On July 13, 2001, respondent notified appellant he should report to work on July 18, 19, and 20, 2001. Appellant did not report to work. He left a voice mail message for his supervisor on July 18, 2001 saying he was ill and he would provide a doctor’s substantiation.
As of August 10, 2001, respondent had not received verification of appellant’s inability to work on July 18, 19, and 20, 2001. On that day, the supervisor sent appellant a letter advising him he needed to provide verification from his health care provider by the close of business August 17, 2001 or a waiver would be charged pursuant to DPA Rule 599.828. Appellant testified he both faxed and mailed the requested verification. Respondent did not rebut this testimony. Appellant was not charged with a waiver for the period of July 18 through July 20, 2001.
Respondent notified appellant by letter dated November 8, 2001 he should report to work on November 13, 14, 15, 16, and 19, 2001. It is undisputed that appellant left a voicemail message for his supervisor telling him he was unable to work on these days because he was ill. However, the supervisor testified appellant said he would send a doctor’s note to substantiate his inability to work. Appellant contends he did not indicate he would send such information. Appellant testified he had a doctor’s note indicating he could not work on these dates, but that he did not send medical verification unless respondent asked for it. He stated respondent did not ask for medical verification for the above dates.
On or about November 27, 2001, respondent notified appellant it had not received a doctor’s verification of his inability to work on November 13, 14, 15, 16, and 19, 2001, and that it was therefore charging him with a waiver pursuant to DPA Rule 599.828. Respondent also reminded appellant that an intermittent employee who waives three requests to report for work may be automatically separated from employment. Appellant did not respond to this letter. He did not send respondent a doctor’s note excusing him from work on November 13, 14, 15, 16, and 19, 2001. He did not produce at hearing either a medical document excusing him from work on these dates or testimony from any health care provider verifying his inability to work.
On or about January 10, 2002, respondent sent appellant notice he was scheduled to work on January 14, 15, 16, 17, and 18, 2002. Respondent sent the notice to the only address of record it had for appellant and to the same address it had sent all other notices. Appellant testified he did not receive this notice to work. Appellant also testified he was unable to work for respondent on January 14, 15, 16, 17, and 18, 2002 because he was ill and not released to return to work until March 2002. He did not present any medical verification to respondent or at the hearing to verify his inability to work during this period.
On February 22, 2002, respondent mailed appellant a letter dated January 28, 2002, notifying him he was being automatically resigned pursuant to DPA Rule 599.828 because he failed to report to work without good reason on May 30 through June 1, 2001, November 13 through 19, 2001, and January 14 through 18, 2002.
Appellant testified he worked in his law practice during the period he was medically unable to work for respondent. He presented no medical documentation or testimony from his health care provider to explain why he was unable to work for respondent on an intermittent basis.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE HEARING OFFICER MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Rule 599.828 provides:
“In addition to the provisions of Government Code section 19996.2 an intermittent employee who waives three requests by the employing department to report for work may be automatically separated from the intermittent appointment, provided that no waiver shall be counted if the employee was unable to come to work due to illness or other good reason (i.e. a reason that is acceptable to the appointing power).”
A waiver is defined in Black’s Law Dictionary (5th Edition) as “the intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right....” An implied waiver exists when “one party has pursued such a course of conduct with reference to the other party as to evidence an intention to waive his rights or the advantage to which he may be entitled, or where the conduct pursued is inconsistent with any other honest intention than an intention of such waiver.... (Id.).” Waiver may be shown by acts and conduct and sometimes by nonaction. (Ibid.)
In this case, respondent reasonably concluded appellant waived his right to work on three separate occasions. Appellant admits he told respondent he could not work on May 30, through June 1, 2001, and from November 13 through 19, 2001. However, he contends he did not receive notice to work on January 14 through 18, 2002.
The January 2002 notice to work was sent to the only address respondent had on record for appellant. Appellant confirmed at hearing that the address was correct. Appellant received other correspondence respondent sent to that address. Appellant is presumed to have received notice to work during this period. (Evidence Code section 641.)
Appellant testified he was unable to work for respondent during the three relevant periods because he was ill. Appellant testified he had a doctor’s verification of his inability to work for all of the waiver periods. Appellant was given every opportunity to present properly authenticated medical evidence to verify his illness and inability to work. He did not do so.
Although DPA Rule 599.828 precludes a waiver if the employee was unable to work because of illness, it does not require an employer to accept the employee’s self-diagnosed illness and inability to work. It does not preclude an employer from requiring the employee to provide medical verification of his alleged illness.
The weight of the evidence shows appellant was well aware he was required to call his employer and provide a doctor’s verification for the periods he told respondent he was ill and unable to work. Respondent reminded appellant of his responsibility and the consequences of his failing to provide adequate substantiation of his inability to work on at least four separate occasions between January 2001 and January 2002. Appellant demonstrated he knew he needed to submit doctor’s verifications as early as January 2001, when he left voicemail messages and offered to provide the required verification. Appellant called his supervisor and provided medical verification on numerous occasions.
The medical verification appellant did provide does not indicate he was suffering from any prolonged illness or disability and it does not provide information on which respondent could anticipate appellant would be unable to work for over a year.
In this case, respondent’s request for medical verification of alleged illness is especially relevant and reasonable because respondent knew appellant ran a private law practice. Indeed, appellant testified he continued to work in that practice during the same period he alleged he was too ill to work intermittently for respondent.
When appellant provided medical verification, respondent accepted appellant’s inability to work. When appellant chose not to submit medical verification even though he was aware of that requirement, he voluntarily waived his right to work. Appellant failed to support his assertion he was ill or that he had any other good reason for not reporting to work.
Appellant’s argument that respondent acted improperly by notifying him to come to work by mail instead of calling him is without merit. There is no evidence of a policy or practice that precluded notification by mail. There is also no evidence that calling appellant would have resulted in appellant coming to work.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective January 17, 2001, is denied.
