Final Non-Precedential Decision Adopted: August 27, 2003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 9:00 a.m. on July 24, 2003, in Santa Barbara, California.

Appellant was present and was represented by Michael Villeneuve, Director, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (CASE).

Anthony Mischel, Staff Counsel, represented the Department of Industrial Relations (DIR), respondent.

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

Appellant alleged she was not absent without leave for five consecutive days because she obtained permission to be absent on March 28, 2003, and she went into work on April 3, 2003.1

Appellant also alleged she had a valid reason for being absent, a valid reason for not obtaining leave and that she is ready, able, and willing to return to work.

Respondent automatically resigned appellant effective May 6, for being absent without approved leave from March 28 through April 4. CASE filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on May 13. The appeal complies with the procedural requirements of Government Code section 19996.2.

Section 19996.2 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.

Solely for the purpose of this decision and to facilitate findings on appellant’s arguments regarding her valid reason for being absent, valid reason for not obtaining leave, and her readiness to return to work, DPA finds appellant was absent for five consecutive days as detailed below.

Appellant was absent from work on Friday, March 28, because of a safety hazard and complications arising from that hazard. Her gas stove developed a leak and she had to wait for service. At approximately 12:30 p.m., she learned the stove was not repairable. She went to purchase a replacement and made arrangements to get it hooked up by the end of that business day.

Appellant was not scheduled to work on Monday, March 31 because it was a State holiday.

Appellant was absent on Tuesday, April 1. She testified she was depressed and suffering anxiety attacks. She called for a doctor’s appointment and she contacted her attorney on this day.

Appellant was absent on Wednesday, April 2. She testified she was depressed and suffering from anxiety attacks. She met with her attorney on this day to discuss child custody issues.

Appellant was absent on Thursday, April 3. She testified she wasn’t feeling well. She went into her office for 45 minutes in the late afternoon. However, there was no reliable evidence appellant performed any work for respondent during this time. (See Armstead v. State Personnel Board (1981) 124 Cal.App.3d 61.)

Appellant was absent on Friday, April 4. She testified she was ill.

On or about March 13, appellant received the following instructions from her supervisor:

“When you are planning to take time off, you must complete and submit a time off request form. In an event of an emergency, you must submit your request to me immediately upon your return. When you submit your monthly timesheet, all hours of absence must be supported by the approved time off requests, while all hours worked are supported by your daily and monthly activity reports.... Effective immediately, you are to obtain prior approval for all time off except on emergency situations, and submit your timesheets on a timely basis every month.”

On March 28, the supervisor called appellant on her cell phone around 10:00 a.m. The supervisor believed appellant was working. Appellant explained she was at home because there was a gas leak. Appellant told her supervisor she would come to work after the repairman came. The supervisor instructed appellant to bring her cell phone into the office when she came to work. The supervisor waited for appellant to come to the office. When she did not appear by approximately 3:00 p.m., he went to her house and learned she was shopping for a replacement stove. The supervisor left appellant a March 28 letter informing her of an April 10 meeting to discuss her job performance. Appellant presented no evidence that she obtained either verbal or written approved leave for this day. She presented no reliable evidence that she submitted a written request for such approval.

On April 1 at approximately 3:52 p.m., appellant left her supervisor a message saying she was too ill to work. Appellant presented no evidence that she submitted a time off request or that her supervisor approved her absence for this day.

On April 2 at approximately 7:37 a.m., appellant left her supervisor a message saying she would report to work after an 8:45 a.m. appointment with her attorney. Appellant did not report to work. Appellant presented no evidence that she submitted a time off request or that her supervisor approved her absence for this day.

On April 3, appellant came into the Van Nuys office at approximately 3:25 p.m. for the purpose of faxing her timesheets to her supervisor. The office secretary gave appellant a second copy of the March 28 letter notifying her of the April 10 meeting to discuss her work performance. The office secretary and appellant discussed the letter. The office secretary gave appellant the telephone number of a union representative. Appellant left a voicemail message for her supervisor at approximately 4:16 p.m. She indicated she was mailing her travel log and timesheet and that she had a doctor’s appointment on April 7. She also said she would not be at work on April 4 or April 7 and that she would not be at the April 10 meeting because her union representative was not available. According to the office secretary, appellant spent about 45 minutes in the office.

The supervisor never received any faxed copies of timesheets appellant testified she faxed to him while she was in the office April 3. There was no evidence appellant resumed her work for respondent. Although appellant was in the office, she also did not submit any requests for time off for any of the days she had been absent.

Appellant did not report to work on April 4.

On or about April 7, appellant faxed a note to her supervisor from her physician excusing her from work April 7 through April 18.

On April 18, respondent notified appellant she was to provide written substantiation from her doctor for her March 28 through April 4 absences and for any absences after April 18. This information was to be provided not later than April 23. Appellant was warned that failure to provide the substantiation would result in a denial of sick leave and that she would be considered absent without leave (AWOL).

On or about April 22 appellant faxed respondent a doctor’s note taking her off work until May 5.

On April 23, appellant sent respondent a letter reiterating the circumstances surrounding her absences. She did not submit the required doctor’s substantiation for any period prior to April 7. She did not indicate she intended to do so. She did not submit any leave request forms and she did not otherwise request leave.

On April 28, respondent notified appellant she was being automatically resigned.

It was uncontested appellant was ready, able, and willing 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. Appellant has the burden of proving 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.

For purposes of evaluating appellant’s evidence in these areas, appellant is found to have been absent without leave for five consecutive days. She did not receive permission to be absent on any day. Her 45 minute appearance in her office on April 3 did not constitute a termination of her on-going absence.

Appellant proved she had a valid reason for being absent on March 28. However, she failed to prove she had a valid reason for being absent on April 1 through April 4. Although appellant submitted a July 16 note at hearing from her physician to substantiate her absence during this period, this note merely reiterates appellant’s own statement and appellant’s potentially self-serving self-diagnosis. It is dated long after the alleged period of illness. The physician was not called to testify. This unsubstantiated hearsay is not an adequate basis on which to determine that appellant was unable to work on April 1 through April 4.

Appellant also failed to prove she had a valid reason for not obtaining leave for March 28 through April 4. Appellant knew she was required to submit a request for time off immediately upon her return to work. Appellant went into work on April 3, but she did not submit a request for time off for any of her periods of absence.

Appellant also did not respond to respondent’s April 18 direction to provide medical substantiation for her April 1 through April 4 illnesses by April 23. She testified she never provided appellant with the July 16 physician’s note prior to hearing. Appellant failed to prove she had a valid reason for not obtaining leave.

It was uncontested appellant was ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective May 6, 2003, is denied.

 

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1. All dates are 2003 unless otherwise indicated.