Final Non-Precedential Decision Adopted: August 25, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:30 a.m. on August 17, 2004, at Riverside, California.

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

Linda M. Nelson, Labor Relations Counsel, DPA represented the Department of Mental Health (DMH), respondent.

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

Respondent automatically resigned appellant effective June 4, 2004, for being absent without approved leave from May 15 through May 18, 2004 and May 21, 2004.1 CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on June 8, 2004.2 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she had a valid reason for being absent; a valid reason for not obtaining leave; and that she was ready, able and willing to return to work.

Appellant testified she was absent May 15 through May 21 because she was ill and hospitalized. The reason for her hospitalization is unknown.

Appellant’s supervisor testified that whenever someone calls in ill, the supervisor taking the call logs the conversation. The supervisor testified that the log book showed that appellant contacted a DMH supervisor on Sunday, May 23. At that time appellant reported she had lupus, was ill, and would bring the doctor’s note in to work on Monday, May 24.

Appellant did not testify regarding the reason for her hospitalization. She presented a Kaiser Permanente “Documentation of Medical Impairment” form (“Kaiser Form”) dated May 23. Appellant testified she was given this form on May 23 when she was discharged from the hospital. Along with several dates in several boxes, the form states, “pt was unable to vocalize from 5-14-04 to 5-19-04. Speech therapy recommended.”

Respondent objected to this document based on lack of foundation and hearsay. (See Government Code section 11513.) Although the document was admitted based on appellant’s testimony, the document does not corroborate appellant’s testimony without further clarification. The Kaiser Form is apparently a multi-purpose form which does not clearly address the length of appellant’s hospitalization or her need to be off work. No physician or other health care professional was called to testify. Based on respondent’s objection and the ambiguity of the Kaiser Form, it cannot be used as a basis to find that appellant was hospitalized or otherwise disabled from work during the period May 15 through May 21.

Appellant admitted she knew she was required to personally telephone her supervisor one-half hour before the start of her shift if she was going to be absent. She contended she was unable to personally call because she was unable to talk.

She further contended that the May 14 call her sister made to a DMH supervisor was adequate notice to respondent that she would not be at work May 15 through May 21. It was undisputed appellant’s sister called the supervisor on May 14 and that no date was discussed by which appellant could be expected back at work. Appellant admitted neither she nor anyone else called respondent on May 15, 16, 17, 18, or May 21 to report she would not be at work.

It was also undisputed appellant contacted a supervisor on Sunday, May 23, two days after she was charged with being absent without leave and that she also called her supervisor on May 24 after she received the notice of automatic resignation.

Appellant testified she was ready, able and willing to return to work. She testified that the Kaiser Form she presented corroborated her medical release to return to work.

Given appellant’s own testimony that she had been “in and out” of the hospital beginning May 7, the fact she was on attendance restriction at the time of her automatic resignation, the ambiguity of the Kaiser Form and the absence of clarifying testimony from a physician or other medical health care provider, appellant’s bare, unsupported statement she is ready, able and willing to return to work does not meet the requisite burden of proof in this area.

 

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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.

Appellant failed to prove she had a valid reason for being absent, a valid reason for not obtaining leave or that she was ready, able and willing to return to work. Unclear recall and conflicting testimony make appellant an unreliable resource on which to base a finding.

The Kaiser Form was ambiguous and required clarification from a physician or other medical health care provider. None was called to testify. Appellant admitted she knew she was expected to call respondent if she was going to be absent. She admitted she did not call and no one else called to report her absence on May 15, 16, 17, 18 and May 21. Appellant’s argument that her sister’s May 14 call was adequate to cover her absence on all other days is simply illogical and unreasonable. Her argument that she personally could not call because she could not speak on May 20 and 21 is particularly suspect because the Kaiser Form appears to indicate she was unable to speak only through May 19. There was no testimony regarding this seeming inconsistency.

Appellant’s base assertion she is now ready, able and willing to return to work is inadequate to meet her burden of proof in this instance.

 

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that the appeal for reinstatement after automatic resignation effective June 4, 2004, is denied.

 

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1. Appellant was not scheduled to work on May 19 and 20.

2. All dates are 2004 unless otherwise indicated.