Final Non-Precedential Decision Adopted: December 6, 2005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 November 15, 2005, at Riverside, California.

Appellant was present and was represented by William Sweeney, Labor Relations Representative, 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 June 16, 2005, for being absent without approved leave from June 3 through June 9, 2005. SEIU filed a request for reinstatement after automatic resignation (appeal) on appellant’s behalf on June 22, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant requested reinstatement because she claimed she was unable to work because she was ill; she was inappropriately denied leave although she complied with her employer’s instructions to obtain leave; and, she is ready, able, and willing to return to work.

Appellant testified she was unable to work on June 3 through June 9 because she had a severe headache. The headache was a result of a work incident on June 1 when a paper towel dispenser lid hit her on the head.

Appellant was seen at U.S. Health Works Medical Group, a medical provider selected by respondent, on June 2, 6, and 13. On all these occasions, she was diagnosed as being able to return to work without restriction.

Appellant did not return to work after June 2. On June 8 she went to the emergency room at Kaiser. Kaiser took appellant off work retroactively to June 3 through June 13 based on a “minor head injury.”

Appellant presented documentation from Kaiser to support her assertion that she was unable to work during the relevant period. No physician or other medical provider was called to testify.

Appellant’s assertion that she was unable to work from June 3 through June 9 and Kaiser’s June 8 diagnosis is in direct conflict with the U.S. Health Works Medical Group’s conclusion that appellant could work without restriction. The June 2 and June 6 U.S. Health Works diagnoses were made as a result of examination during the period appellant was complaining of disability. The Kaiser diagnosis was made after appellant had already been off work on June 3, 4, 6 and 7 and on the basis of only one visit on June 8. There was no evidence Kaiser performed any tests or relied on information other than that provided by appellant.

There was no objection to introduction into evidence of the medical documentation from the U.S. Health Works Medical Group. Respondent objected to the Kaiser documentation as hearsay. Government Code section 11513 (d) provides that hearsay evidence can be used for the purpose of supplementing or explaining other evidence but that it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The Kaiser documentation would not be admissible over objection in a civil case. Without clarifying testimony from a Kaiser medical care provider or physician, the documentation from Kaiser does not provide sufficient information to support or explain appellant’s testimony that she was unable to work from June 3 through June 9. The Kaiser documentation is not sufficient in itself to explain the conflict with the U.S. Health Works Medical Group findings. Therefore, appellant failed to prove she had a valid reason for being absent.

Appellant argued she was inappropriately denied leave because she complied with her supervisor’s instructions and notified him each day she was going to be absent.

Prior to March 15, respondent allowed its custodial staff to report absences to a lead custodian who could be reached by telephone at [number omitted]. On or about March 15, respondent changed its policy. On March 15, appellant’s supervisor issued a memorandum to all custodial staff instructing those employees on the day shift who were going to be absent to contact him at [number omitted] or an alternate supervisor at [number omitted]. Although employees were instructed to report their absences on other telephone numbers, the [number omitted] number remained operative with voicemail service.

Appellant was absent on March 23. She reported that absence by leaving a message on the [number omitted] telephone voicemail service. On March 26, the supervisor issued another memorandum to appellant instructing her to report her absences to him at [number omitted] or to an alternate supervisor at [number omitted].

Appellant testified she called her supervisor and left a voicemail message on June 3, 4, 7, 8, and 9 saying she would be absent. She testified she left the voicemail messages for the supervisor at [number omitted], his direct telephone line and the number she was instructed to call. She further testified she heard his voice on the outgoing voice message at the number on which she left her messages.

The supervisor’s testimony contradicts appellant’s testimony. The supervisor testified appellant continued to report her absences by leaving messages at the [number omitted] number. He testified appellant never left a message on his telephone number’s voicemail service. He further testified that he knew appellant had called only because he randomly checked the [number omitted] number.

The testimony from appellant and the supervisor is equally persuasive. Both witnesses were equally credible. The appellant bears the burden of proving her argument that she did not obtain leave because her supervisor improperly denied her leave even though she complied with his instructions for reporting leave (Evidence Code section 500). Appellant failed to meet that burden. She did not introduce any evidence that her supervisor bore her any animosity, documentation that she placed calls to a specific telephone number, or that anyone witnessed her following the required procedure. Appellant simply did not provide a preponderance of evidence to support her argument that she had a valid reason for not obtaining leave.

Appellant testified without contradiction that 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. She failed to provide evidence sufficient to contest the medical evidence that indicated she was able to work.

She also failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave. Testimony from the appellant and respondent was equally persuasive on this point. Appellant simply failed to meet her burden of proof in this area.

Appellant proved she was ready, able and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Custodian effective June 16, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.