Final Non-Precedential Decision Adopted: June 24, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on June 15, 2005, at Riverside, California.

Appellant was present and was represented by Fernando Acosta, Attorney, Service Employees International Union (SEIU).

Linda M. Nelson, Labor Relations Counsel, DPA, represented the California Science Center (CSC), respondent.

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

Respondent automatically resigned appellant effective March 21, 2005, for being absent without approved leave from March 8 through March 14, 2005. SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on March 18, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contended she had a valid reason for being absent because she was ill. She argued she should have been granted leave because she followed the procedure to obtain leave. She also testified she is ready, able and willing to return to work.

Appellant testified she was absent because she had ongoing problems that made it difficult for her to breathe. She testified the bone structure in her nose is enlarged and it blocks her nasal passages.

Appellant testified she went to the Emergency Room at Brotman Medical Center on March 6 for treatment of her blocked nasal passages and for treatment for chest pains. In support of this testimony, she presented a medical note from the Brotman Medical Center dated March 6. This note puts appellant off work on March 6 and March 7. The medical note also indicates appellant should follow-up with her primary care physician on March 7.

Appellant originally testified she contacted her new primary care physician on March 7. She testified that she could not get an appointment with him so she went to the University of California Los Angeles’ (UCLA) Santa Monica facility. She originally testified she was seen on March 7 by two doctors at UCLA: one in the emergency room and a second who was an ear, nose, and throat specialist. Appellant testified the ear, nose, and throat specialist told her he needed authorization before he could perform a procedure to alleviate the blockage in her nasal passages. Appellant did not produce any medical documentation of her visits to the UCLA Santa Monica facility.

Appellant then contradicted her original testimony. She testified she saw three doctors on March 7, one of which was either her physician or one of his associates at the Santa Monica Bay Physicians’ Plaza Office. Appellant did not produce any medical documentation of a March 7 visit to any physician at the Santa Monica Bay Physicians Group.

Appellant did produce a medical note dated March 15 which she testified she received from one of her physician’s associates at the Santa Monica Bay Physicians Group. This note indicates appellant was treated in the office on March 15; that appellant required a medical leave of absence from March 7 to March 16; and, that appellant could return to work on March 16. It does not state why appellant was being treated, and how long she was being treated by her physician’s associate for any condition. The note offers no explanation why appellant was given a leave of absence prior to the date of the doctor’s visit or on what basis leave was prescribed.

No physician or any other medical care provider was called to testify. Respondent objected to the associate physician’s March 15 medical documentation as hearsay. Government Code section 11513 provides that hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Therefore, in this case, the March 15 medical note cannot be relied on to support a finding that appellant had a valid medical reason for being absent from March 8 through March 14. Although appellant suggested at hearing that the note could be used to supplement appellant’s testimony, such testimony was inconsistent and unreliable.

Appellant failed to prove she had a valid reason for being absent from March 8 through March 14.

Appellant contended she did everything her supervisors instructed her to do to obtain leave. She testified she called the general office number and left a voice message every day except one, March 8, to report her absence. She knew she had to provide a doctor’s note when she was absent because she was ill. Although there was no reliable evidence appellant ever presented or attempted to present a medical note to respondent excusing her absence from March 8 through March 14, she argued the March 15 note from the associate physician that she presented at hearing should now be accepted to grant her leave.

Respondent’s supervisor testified a change was made in the procedure for reporting absences beginning in December 2004. Prior to December 2004, employees were allowed to leave messages when they would be off work on the general office number. After December 2004, employees were instructed they were to either talk with their immediate supervisor or leave a message at their supervisor’s telephone message number.

Appellant testified she was never instructed to call her supervisor’s telephone number to report her absence. The supervisor testified he received off-work messages from appellant at his telephone number on March 6 and 7. He testified he did not receive messages from appellant at his telephone number from March 8 through March 14. He also testified he checked the general office number every day from March 8 through March 14. Appellant left a message at this number on only one day during this period.

The supervisor further testified that he had previously experienced problems with appellant in December 2004 and January 2005 regarding timely provision of medical slips for her absences when she returned to work. He provided written direction to appellant on or about January 19 informing her that such “behavioral pattern was unacceptable.”

Appellant did not have a valid reason for not obtaining leave. She did not provide or attempt to provide medical documentation of her need to be absent to her employer at any time. The supervisors’ testimony regarding appellant’s calls to report her absences is credited over appellant’s testimony. Appellant’s memory was selective and her testimony unreliable.

Appellant testified she is 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 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 and a valid reason for not obtaining leave. Her inconsistent testimony regarding her medical problems and treatment is an insufficient foundation on which to conclude she needed to be absent. A medical note excusing appellant from work for a period before the date of the doctor’s examination does not change the analysis.

Appellant’s uncorroborated testimony regarding her calls to report her absence is also an insufficient basis on which to conclude she had a valid reason for not obtaining leave. Her memory was selective and therefore, her testimony was unreliable.

Based on the findings above, 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 March 21, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.