Final Non-Precedential Decision Adopted: July 2, 2002

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 13, 2002, at Riverside, California.

Appellant was present and was represented by Ernie Garcia, Labor Relations Representative, California State Employees Association (CSEA).

Karen E. Tarp, Staff Counsel represented the Department of Motor Vehicles (DMV), respondent.

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

Respondent automatically resigned appellant on March 28, 2002, for being absent without approved leave from January 31, 2002 through March 14, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on March 25, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant claims she had a variety of reasons for being absent from work during the relevant period. She claims she should have been granted leave because she notified her supervisor of her absences, and complied with the required leave reporting procedure. She also claims she is currently ready, able, and willing to return to work.

Appellant presented the following to explain why she was absent from work:

Appellant testified she was “sick” on Thursday, January 31, 2002.1

She testified she was sick on Friday, February 1, and that she went to the doctor. Appellant presented a doctor’s note from Kaiser indicating she was seen on February 1. The note indicates appellant was unable to work for two days beginning January 31. The doctor was not called to authenticate this note or to testify regarding appellant’s inability to work during this period.

Appellant testified that she “believes” she was in a car accident on Monday, February 4. She sustained cuts and bruises and had headaches. The accident was not reported to the police. She did not go to the doctor on this date.

Appellant testified she continued to have headaches and was recovering from the effects of the car accident on Tuesday, February 5 and Wednesday, February 6.

Appellant testified that on Thursday, February 7, she was engaged in an altercation with her husband. The incident was not reported to the police. Appellant contends that she went to the emergency room for treatment. She produced a physician’s note from Kaiser that indicates she was seen on February 7. It also indicates that the appellant reported to the physician that her last day worked was February 1, and that the date her illness began was February 4. The physician’s note indicates that appellant was completely unable to work for three calendar days, beginning on February 8. The physician was not called to authenticate this note or to testify regarding appellant’s inability to work during this period.

Appellant testified that she was unable to work on Friday, February 8, based on the effects of her car accident, the altercation with her husband, and her doctor’s instructions.

Appellant testified that on Monday, February 11, she continued to have headaches, nausea, and other aches and pains. She called Kaiser and requested additional time off from work. Appellant produced a physician’s note from Kaiser that indicates she was completely unable to work beginning February 11. The exact duration of her incapacity cannot be determined from the physician’s note. Appellant testified that based on her request, the physician extended her time off work for two weeks. The physician was not called to authenticate this note or to testify regarding appellant’s inability to work during this period.

Appellant contends that she did not report to work from Wednesday, February 13, through Monday, February 25, because she was under her doctor’s care.

Appellant testified that she again went to a physician on Monday, February 18, because she had severe headaches, dizziness, and an ear infection. She produced a physician’s note from Southern California Permanente Medical Group excusing her from work for the period of Monday, February 18, through Sunday, March 3, because of strep throat. The physician was not called to authenticate this note or to testify regarding appellant’s inability to work during this period.

Appellant testified that she believed she did not come to work on Monday, March 4 because she thought it was a State holiday. This day was not a State holiday and appellant was expected to be at work.

Appellant testified she did not come to work on Thursday, March 5, because she had a bankruptcy hearing at 9:00 a.m. She presented no testimony regarding the length of this proceeding nor did she give any reason why she did not come to work after the bankruptcy hearing.

Appellant testified she did not come to work on Wednesday, March 6, because she had an ear infection. She did not present any medical verification in support of her testimony.

Appellant testified did not come to work on Thursday, March 7, because she was sick. She did not present any medical verification in support of her testimony.

Appellant testified did not come to work on Friday, March 8, because she was sick. She did not present any medical verification in support of her testimony.

Appellant offered no testimony regarding why she did not come to work on Monday, March 11.

Appellant testified she did not come to work on Tuesday, March 12, Wednesday, March 13, or Thursday, March 14, because she checked into the Volunteers of America Recovery and Residential Services alcohol and substance abuse rehabilitation program on Tuesday, March 12. This program requires that the participants remain at the facility on a fulltime basis for at least the first 30 days. Appellant did not call any witnesses from the rehabilitation program to authenticate any documents or to testify about her participation and enrollment in this program.

Appellant did not place on the record testimony from any medical doctor or other health care professional to substantiate her claim that she was ill and unable to work. She also did not place any properly authenticated medical documents on the record to establish a medical reason to be absent from work. Further, although appellant testified she checked into a rehabilitation program on March 12, she did not present any testimony that tied her absences prior to March 12 to any substance or alcohol abuse.

While appellant testified to the best of her recollection, her recollection was sometimes unclear. Her testimony is unreliable evidence on which to find that she had a satisfactory reason for being absent.

Appellant contends that she should have been granted leave for the relevant periods because she complied with the procedures for obtaining leave that respondent had imposed on her prior to January 31.

On or about November 30, 2001, appellant received a memo from respondent that set forth the procedure she was to follow when she was going to be absent from work. This memo informed appellant that, If she was going to be absent from work, she was required to: (1) Call the office within 30 minutes of her start time and speak to either her own or another supervisor; (2) Substantiate all absences due to illness with a written physician’s verification that included a legible physician name, telephone number, and confirmation that she was unable to work for the entire duration of the absence; and (3) Submit the substantiation to management upon the first day of her return to work. The memo also informed appellant that if she did not follow these procedures and provide adequate substantiation, her absences would be recorded as absence without leave (AWOL).

Appellant testified that she generally notified respondent of her absences in a timely manner. Two exceptions to this were February 4, the day she was involved in the traffic accident and February 7, the day that she went to the emergency room for treatment after the altercation with her husband. Appellant “believed” she called respondent later in the day when she was involved in the traffic accident. On the day she was involved in the altercation with her husband, she asked her mother to call for her. Appellant also testified that she did not call every day she was absent because on some days, she believed that her supervisor already knew she was under doctor’s care for that period.

Appellant called respondent on January 31, and February 1 to report that she was ill and that she would be absent from work. Appellant spoke to the Branch Manager of the Glendale Field Office. The Branch Manager testified that she reminded appellant of her absence reporting requirements during the January 31 conversation.

During February 2002 the Branch Manager discussed appellant’s absences with appellant’s immediate supervisor.2 The Branch Manager testified that because appellant’s attendance had been deteriorating and because they needed to report accurate attendance information on the timecard at the end of the February pay period, she instructed appellant’s supervisor to get verification for appellant’s illnesses before appellant returned to work.

The Branch Manager also testified that she reviewed appellant’s work hours to determine if appellant was eligible for leave under the Family Medical Leave Act (FMLA). The review indicated that appellant was not eligible for FMLA leave as of February and March 2002 because she had not worked the required number of hours.

It is uncontested that the supervisor spoke with appellant on Wednesday, February 13 when appellant called to report that she was going to be absent. Appellant told her supervisor that she was under a “doctor’s care” but that she would be at work on the following Monday. According to appellant, her supervisor told her that “before she returned to work, she needed to submit her doctor’s notes.” The supervisor originally told appellant that she should mail the notes. At the Branch Manager’s instruction, the supervisor called appellant back later that day and told her not to mail the notes because they might get lost in the mail.

After some discussion, appellant faxed two documents to her supervisor to verify her February 1 and February 7 doctor’s visits and to verify that she was unable to work through February 25. The faxed copies were illegible. The supervisor then called appellant again, told her the faxed notes were illegible, and told her she should bring the documents with her when she reported to work the following week. The following Monday, February 18, was a state holiday and appellant was not scheduled to work.

Appellant did not report to work on Tuesday, February 19 or on any other day through March 14 when she was automatically resigned. She did not arrange for legible copies of the February 1 and February 7 doctors’ notes to be provided to respondent. Prior to her Coleman hearing, appellant never attempted to provide respondent with any documents substantiating her absences for any period past February 25. Appellant did not and has not presented any documentation substantiating her absence from work for the entire days on March 4, and 5, when she claims she attended a 9:00 a.m. bankruptcy hearing or for March 6, 7, 8 and 11 when she claims that she was ill.

Appellant presented documents at hearing from the Volunteers of America Recovery and Residential Services program to verify that as of March 12 she was participating in its alcohol/substance abuse rehabilitation program. There is no evidence that Appellant provided any written verification of her participation in this treatment program prior to the hearing.

Respondent rejected the documents presented by appellant at the Coleman hearing because they were not presented before she was automatically resigned. In addition, appellant presented no documents that excused her absence for entire days on March 4, 5, 6, 7, 8, and 11. Therefore, respondent did not excuse appellant’s leave.

Appellant testified she is ready, able and willing to return to work. She presented as evidence a letter from a Supervisor at the Jan Clayton Center of the Volunteers of America Recovery and Residential Services program. The letter stated that appellant “... has demonstrated through attitude, behavior, and willingness her readiness in becoming a productive member of society.” The Jan Clayton Center Supervisor did not authenticate the letter. The Jan Clayton Center Supervisor was not called to testify. At the time of hearing appellant did not have a program discharge date. This evidence is not reliable evidence to prove appellant’s current ability to return 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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether 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 she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

In this case, appellant failed to prove that she had a satisfactory reason for being absent. Appellant’s own testimony was insufficient to establish by a preponderance of the evidence that she had adequate reason to be absent on relevant days. Her testimony and recollection are unreliable. She did not place on the record testimony from any medical doctor or other health care professional to substantiate she was ill and unable to work. The documents presented by appellant were not properly authenticated to establish a medical reason to be absent from work. At the hearing, appellant was made aware that the medical documentation she presented could not be used by the administrative law judge to make a decision regarding her illness or her absence from work. Appellant made no offer or attempt to secure medical testimony. In addition, appellant presented no documentation whatsoever to substantiate her absence for the entire days of March 4, 5, 6, 7, 8 and 11.

Appellant’s testimony also failed to establish, by a preponderance of the evidence, that she had a satisfactory reason for not having obtained leave. Respondent notified appellant that she was to provide legible documentation covering the period of her absence before she returned to work. Appellant agreed to provide such documentation on or about February 19. Appellant did not provide the documentation on February 19 or any other day before she was automatically resigned. Appellant’s failure to return to work does not excuse her failure to provide medical substantiation of her absences as directed and expected by her supervisor. Respondent had no verifiable basis on which to grant leave. Therefore, the employer was justified in denying leave.

Assuming arguendo that appellant proved both a satisfactory reason for being absent and for not having obtained leave, she did not present evidence sufficient to establish she is currently ready able and willing to work. According to her own testimony, she is currently participating in a rehabilitation program. There was no testimony from either rehabilitation personnel, or medical doctors to address appellant’s current physical and mental readiness to resume full-time active employment at this time or to provide an anticipated date of discharge from the program.

 

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that the appeal for reinstatement after automatic resignation effective March 28, 2002, is denied.

 

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1. All dates refer to 2002 unless otherwise indicated.

2. At hearing, respondent introduced a March 14 memorandum, which was authored by the supervisor and sent to the Branch Manager. This memo purportedly lists the dates appellant called in and the reasons that she gave for being absent. The supervisor was not called to testify. The Branch Manager admitted she only spoke directly with appellant when she called in on January 31 and February 1. In addition, the Branch Manager’s testimony contradicted the memo. The Branch Manager believed March 4 was a state holiday and she attempted to correct the memo through her testimony. This memorandum was not used as a basis for any finding.