Final Non-Precedential Decision Adopted: May 30, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 19, 2004, at Sacramento, California.

Appellant was present and was represented by Janis Mickel Szichak, Central Area Manager and Robyn Cherles, Labor Relations Representative, Service Employees International Union, Local 1000, California State Employees Association (CSEA).

Shannon M. Chambers, Staff Counsel, represented the Department of Health Services (DHS), respondent.

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

Respondent notified appellant on April 9, 2004, that effective April 2, 2004, she was being automatically resigned for being absent without approved leave from April 5 through April 9, 2004. CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on April 19, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she should be reinstated because she was too ill to work and therefore had a valid reason for being absent; that she had a valid reason for not requesting additional leave because she was entitled to twelve weeks of leave under the Family Medical Leave Act (FMLA) which she believed was approved; and, she was ready, able, and willing to return to work.

On February 23 appellant was diagnosed as having “severe depression worsened by work stressors.” The physician completed respondent’s required “Request for Medical Leave and Medical Certification” form (medical form), and indicated appellant was incapacitated for six weeks. Respondent granted appellant leave under the Family Medical Leave Act (FMLA) for February 23 through April 2.

Appellant did not report on April 5, the next day she was expected to work. She argued she was too ill to work. At hearing, she presented a doctor’s slip she testified she obtained from a physician at the Sutter Medical Foundation’s Internal Medicine section. Appellant testified she received this slip on April 12 during an office visit. This document indicates appellant is released to go back to work as of April 13 and that she was out on medical leave through April 12 due to “stress.”

Appellant testified she was not seen by any physician between the periods of February 23 through April 12. She self-diagnosed that she was not able or would not return to work on April 2. It was not until after she was automatically resigned that she saw a second physician who released her to return to work on April 13 and retroactively certified her unable to work during the relevant period. No physician or other health care provider was called to testify. Appellant did not present any reliable objective evidence supporting her contention she was unable to work from April 5 through April 12. Thus, she did not have a valid reason to be absent during this time.

Appellant contended she did not take steps to request leave because she believed the FMLA leave approval she received based on the physician’s February 23 certification covered her absence. She also contended it was respondent’s responsibility to notify her when she was to return to work. Appellant simultaneously argued that she took all the necessary steps she needed to take to obtain additional leave after April 2 by leaving her supervisor a voicemail message on April 6 saying she would be back at work on April 12.

Appellant’s argument that she believed her absence from April 5 through April 12 was approved based on the physician’s February 23 certification and her belief she was automatically entitled to 12 weeks of FMLA leave is unreasonable for three reasons. First, the verification clearly states that appellant’s “present incapacity” is 6 weeks. Second, appellant’s testimony that she did not receive Respondent’s March 3 letter informing her of the dates of her approved FMLA leave and the procedures she needed to follow to extend that leave is not reliable and therefore credible. This testimony is not credible because appellant received every other notice sent to her at the address to which the letter was sent; appellant’s testimony at hearing was inconsistent; and, appellant had, on at least one other occasion, been counseled for being untruthful regarding the reason for her absence.

Although appellant argued that it was respondent’s obligation to notify her when she could return to work, she presented no legal authority for this contention. Appellant admitted that after she received verbal notice that her FMLA leave was approved, she did not contact her employer prior to April 6.

Appellant’s contention that she believed her April 6 voicemail to her supervisor was sufficient to insure leave for April 5 through 12 is also unreasonable and without merit. Appellant was instructed in three documents dated October 30, 2003, February 11, and February 17 that she was to call in within the first hour of the workday and speak with her supervisor if she was going to be absent. She was instructed if she could not reach her supervisor, she was to speak to a manager within the section or Branch and that she was to leave a number where she could be reached. On April 6, appellant called her own voicemail and transferred the call to her supervisor’s voicemail. She did not speak directly to her supervisor or other manager. She did not follow the instruction she was given in order to obtain approved leave.

Appellant was also notified in writing on at least two occasions, February 11 and February 17, that failure to request and receive approved leave from her supervisor could result in being absent without leave and automatic resignation. Appellant was notified on at least one previous occasion that because she had not received such approval, she was being automatically resigned based on absences from February 5 through 13. This resignation was subsequently rescinded on February 17.

The evidence shows appellant knew or should have known that she had received approved leave for only six weeks through April 2, that she knew what was expected of her in order to obtain additional leave, and that she did not comply with the requirements for obtaining additional leave. Hence, appellant did not have a valid reason for not obtaining leave April 5 through 12.

Appellant testified she 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. 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 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 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 by a preponderance of the evidence that she had a valid reason for being absent. The April 12 medical form completed retroactively by a physician who did not see or treat the appellant during the FMLA-approved leave does not without additional authentication and testimony support appellant’s self-diagnosis or self-serving testimony that she was unable to work from April 5 through April 12.

Appellant also failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave. She knew she was approved for six weeks of FMLA leave. She knew what steps she had to take to obtain additional leave. She chose not to follow the instructions to obtain such leave. She did not contact her employer to determine the length of her FMLA approved leave, if, in fact, she did not receive notice of its duration. Furthermore, although she attempted to shift the responsibility for notification of return to work dates to the employer, she presented no legal authority for this proposition.

Given the above analysis, it is unnecessary to determine if appellant is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective April 2, 2004, is denied.

 

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1. All dates are 2004 unless otherwise indicated.