Final Non-Precedential Decision Adopted: January 15, 2003
By: Howard Schwartz, DPA Chief Counsel
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on November 26, 2002, at Riverside, California.
Appellant was present and was represented by Stephen D. Beck, Labor Relations Consultant, Professional Engineers in California Government (PECG).
Jeanell Bradley, Staff Services Manager I, represented the 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 August 6, 2002 for being absent without approved leave from August 7, 2002, through October 2, 2002. PECG filed a request (appeal) for reinstatement after automatic resignation on October 9, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.
Appellant claimed he should be reinstated because he was ill; he complied with respondent’s leave restriction instructions; and, he is ready, able and willing to return to work.
Appellant has had several illnesses and work absences. Appellant contended his absences since March 20021 have been caused by his supervisor.
Appellant last worked on August 6. He claimed he was ill from August 7 through October 2. Appellant claimed he was suffering from anxiety and “stress.” He testified his sleep patterns were irregular and he was awake for only two or three hours during the early morning. He also testified he was taking eight medications and he lost 50 pounds.
Appellant did not go to a doctor until August 21. On that day he saw a doctor at the Tavitian Gastroenterology Medical Group. This was a prearranged appointment with a specialist to whom he had been referred by his treating physician on July 23, prior to his most recent absences. This specialist gave appellant a medical slip excusing him from work that day. The doctor did not provide a reason why appellant could not report to work.
Appellant did not see a doctor again until September 6 when he went to an emergency room. Appellant claims his condition worsened after this visit to the emergency room because he contracted a viral infection. He claims he was sedated most of the time and became bedridden. On September 10, appellant’s mother called appellant’s primary physician, and got appellant an appointment for that day. On September 10, the physician gave appellant a note recommending he be excused from work for August 6 through September 23. He did not provide a reason why appellant could not come to work.
Appellant next saw his physician on October 10, eight days after he was served with his October 2 notice of automatic resignation. At this time the physician gave appellant a note recommending he be excused from work for September 23 through October 15. At this time, he also provided a diagnosis.
On November 22, appellant went to his physician’s office and read him the October 2 notice of automatic resignation. The physician gave him a letter excusing him from work August 6 through November 1 because of a “severe viral infection causing Anthralgia, Myalgia and Chronic Gastro Intestinal Problems.”
No doctor or other health care provider was called to testify regarding appellant’s medical condition, medications he was prescribed or his ability to work at any time during the relevant period.
Appellant alleges he should have been granted leave because he complied with respondent’s requirements for obtaining leave.
On April 23, appellant’s supervisor placed him on leave control. The “Letter of Warning/Letter of Leave Control” stated in relevant part:
“1. All absences due to illness for yourself or eligible family members must be substantiated in writing by a physician and in the case of your illness, the substantiation must be obtained during the period of your illness and turned in to me when you report back to work or within 3 days, whichever is first. If you fail to provide proper substantiation, your request will be denied, and the time reflected as AWOL. The substantiation must include the following
a. General nature of illness
b. Full period of your absence and the date you can return to work.
c. Date treated by physician
d. Work limitations, (if any) and the duration.
2. If unanticipated absences occur, you must personally contact me no later than 8:15 a.m. on the day of the absence at [number omitted]. Should I not be available, you will then contact our squad at [number omitted] and you must leave a phone number so I can return your call. If you fail to follow this procedure, your request for time off may be denied and the time reflected as AWOL, and you will be considered insubordinate.
.... These requirements will remain in effect until April 22, 2003. ”
Appellant’s supervisor discussed the requirements of this letter with appellant.
On June 19 appellant received another Letter of Warning from his supervisor because he was absent from work and failed to provide valid medical substantiation for six days of absence in May and June. Appellant was notified he was considered AWOL on these days and notified that he was expected to follow the requirements of the April 22 Leave Control Letter. The June 19 Letter of Warning extended the leave control requirements until June 18, 2003.
On or about July 9 appellant received a third letter from his supervisor. This letter advised appellant that although he had left messages stating he was sick, he failed to follow the requirements of the April 22 Leave Control Letter because he had not provided any medical substantiation for his absences. It also advised appellant he would be allowed to return to work if he provided a medical release from a physician by July 16. He was told that if he failed to provide such a release or if he failed to exercise any other option provided to him in the letter, he would be considered AWOL. Appellant thereafter faxed his supervisor medical verification for part of his absence period and returned to work on July 16.
Appellant left messages for his supervisor on August 7, 8, and 9 stating he was unable to work each day. The supervisor went on vacation beginning August 10. There is no record that appellant called anyone to report his inability to work on August 10. Appellant began leaving voicemail messages for the supervisor again on September 19. Appellant called him in the early morning hours every work day to advise him he was unable to come to work. He did not call another squad member, he did not leave his telephone number, and he did not say when he was anticipating returning to work.
The lead worker assumed the supervisor’s responsibilities until he returned from vacation on September 9. Appellant called the lead worker almost every day to report he was ill and unable to come to work. He spoke with the lead worker personally on each work day from August 12 through August 30. After that, he left voicemail messages for the lead worker between 12:30 a.m. and 5:00 a.m. When appellant could not reach the lead worker, he did not call anyone else on the squad, he did not leave his telephone number on the voicemail messages, and he did not say when he would be returning to work. He did not talk to the lead worker or leave a voicemail message on August 10, September 12, 17, or 20. On September 23, the lead worker left an outgoing voicemail message informing appellant the supervisor had returned from vacation and he was to call him thereafter.
Both the lead worker and appellant testified that the lead worker told appellant he did not have to bring medical verification of his inability to work until he returned to work. The lead worker testified he did not know appellant was on leave restriction. The lead worker did not testify on what date he told appellant he could bring in medical substantiation when he returned to work. Appellant testified the lead worker told him this about two weeks after he became ill.
Appellant did not comply with respondent’s April 23 leave control instructions. He never spoke with the supervisor personally, he did not speak to another member of the squad when he could not reach his supervisor or the lead worker and he did not provide his telephone number as required. Appellant did not provide respondent with medical verification of his inability to work August 7 through October 2 until after he received notice he was being automatically resigned. Therefore, respondent did not grant appellant leave.
Appellant testified his inability to work was initially based on anxiety and stress caused by his supervisor. He testified he was ready, able, and willing to return to work after November 1. To corroborate this, he introduced a letter from his primary care physician, which simply stated that appellant was “to continue medication, rest and be excused from work and any physical activities starting August 7, 2002 through November 1, 2002.” The physician had diagnosed appellate as suffering from severe viral infection.
Neither appellant’s primary care physician, nor any other medical health care professional was called to testify regarding any of appellant’s illnesses, and/or current ability to work.
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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal 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/her absence and failure to obtain leave and that he/she is currently able to return to work.
Appellant failed to prove he had a valid reason for being absent for the relevant period. Appellant did not seek treatment for what he described as a totally disabling condition prior to September 6. When he saw a doctor on August 21, the doctor only excused him from work for one day and did not indicate why appellant was unable to work on that day. Appellant did not call a doctor or any other health care professional to testify. Appellant’s own testimony and unspecific hearsay evidence provided after the alleged period of illness is insufficient evidence on which to conclude appellant was unable to work. While appellant may have been ill and unable to function for a portion of his absence, he failed to provide reliable, non-hearsay evidence upon which to conclude during what period, if any, he may have had a valid reason for being absent. Thus, appellant failed to meet his burden of proof in this area.
Appellant also failed to prove he had a valid reason for not obtaining leave. Appellant’s argument that the April 23 Leave Control Letter allowed him to bring in medical substantiation for up to three days after he returned to work is without merit. The language of the letter clearly states the substantiation must be provided to the supervisor “when you report back to work or within 3 days, whichever is first”. If appellant’s interpretation were adopted, the phrase “whichever is first” would have no meaning. The supervisor explained this language to appellant and he was well aware of this requirement, being reminded of it on or about June 19 and July 9.
Appellant’s argument that the lead worker’s statement regarding medical verification when he returned to work invalidated the supervisor’s April 23 Leave Control Letter is also without merit.
The lead worker’s statement could not reasonably be assumed to invalidate the supervisor’s previous instruction. Although the lead worker may have assumed the supervisor’s responsibilities while he was on vacation, there is no evidence to suggest that the lead worker was given authority or intended to override or revise previously existing policies or decisions. He was unaware of the fact appellant was on leave restriction. The lead worker did not tell appellant he did not have to call daily to report he was unable to work. The lead worker did not address the supervisor’s previous restrictions when he spoke to appellant. Appellant knew the supervisor was adamant about the leave requirements. Appellant knew the leave restrictions and requirements were in effect until 2003.
Even if it could be argued that appellant’s requirement to provide medical substantiation after three days of illness was removed based on the lead worker’s statement, this does not excuse appellant’s failure to provide the information on August 10, the fourth day he was absent or on any other day before the lead worker made his casual statement to appellant who was his friend and co-worker. Appellant testified the lead worker did not tell him medical information should be brought in when he returned to work until two weeks after August 7. Thus, this requirement, at the very minimum, remained in effect until at least August 21. Appellant did not have medical information on this date which excused him from work for this period. Appellant did not provide medical information to respondent as required. Appellant failed to prove he had a valid reason for not obtaining leave.
Based on appellant’s successive bouts with illness, his testimony that his supervisor was the primary cause for his illness, the fact his supervisor has not changed, and the lack of reliable medical evidence, appellant failed to prove he was ready, able, and willing to return to work.
1. All dates refer to 2002 unless otherwise indicated.