Final Non-Precedential Decision Adopted: May 5, 2005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 April 27, 2005, at Sacramento, California.

Appellant was present and was represented by Harry J. Gibbons, Attorney, California State Employees Association, Local 1000 (CSEA).

Terry Slover, Labor Relations Specialist, represented the Department of Developmental Services (DDS), respondent.

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

Respondent automatically resigned appellant effective January 28, 2005, for being absent without approved leave from January 10 through January 14, 2005. CSEA filed a request (appeal) for reinstatement after automatic resignation on January 24, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she should be reinstated because she was ill during the time she is charged with being absent without leave; she attempted to comply with the requirements to obtain leave; and, she is ready, able, and willing to return to work.

Appellant last worked on Monday, January 3. She left work early that day because she had a headache. Her condition worsened on Tuesday and Wednesday. On Thursday, January 6 she made an appointment with a doctor at Kaiser. On January 6, she was transported to her appointment by her neighbor. Her neighbor took appellant to the January 6 doctor’s appointment because he perceived her as being too ill to take regional transit, her usual mode of transportation. Appellant did not see her treating physician on January 6, but rather was examined by an associated doctor. The physician diagnosed appellant as having inflammation of the throat (pharyngitis). He prescribed an antibiotic medication and after discussion with appellant, placed her off work until January 8. When appellant picked up the medication, she was given a “Patient Education Leaflet” that described the potential side effects of the medication. The potential side effects included, among other things, stomach upset, diarrhea, vomiting, and dizziness.

Appellant testified she began to have diarrhea and she began vomiting. She also testified these symptoms continued to escalate and this precluded her return to work from January 10 through January 14. She further testified she was unable to attend a prescheduled doctor’s appointment on Tuesday, January 11 because she was too ill.

On Thursday, January 13, appellant testified her symptoms continued and she called Kaiser for an appointment. She reported that when she described her symptoms and medication to an “advice nurse,” the nurse told her to stop taking the medication.

The neighbor testified he observed appellant on several occasions during the first two weeks of January when she came to his house to use the telephone. He testified she appeared “wobbly,” pale, and ill and that he walked with her back to her house on several occasions because of this. He testified he helped her up the stairs on January 14 because he felt she was ill and he did not want her to fall down his steps.

Respondent issued its notice of automatic resignation on January 14.

Appellant did not see a doctor until Tuesday, January 18. At that appointment, appellant’s regular treating physician, diagnosed her with “irritable bowel syndrome.” The doctor noted that appellant stated she had been unable to work since January 9 and that appellant had not been seen by her treating physician prior to January 18. The treating physician cleared appellant for return to work on January 18.

Appellant argued that her effort to obtain leave was hampered because she was unable to get a medical appointment to get the required doctor’s verification and she believed she had obtained leave because her supervisor did not advise her otherwise.

Appellant does not have a telephone. She used her neighbor’s telephone to both place calls and receive messages. Appellant called her supervisor every day she was charged with being absent without leave. Appellant spoke with her supervisor directly on January 10, 11, and 13. She left him voicemail messages on January 12 and 14. Although appellant had been instructed to contact another supervisor as well when she left a voicemail message, appellant failed to comply with this instruction.

On Thursday, January 14, the supervisor advised appellant she needed to provide a doctor’s note that would substantiate her absence or she would be considered absent without leave (AWOL). Appellant informed the supervisor she had a doctor’s note that covered her absence through January 8 and that she would fax it to him. She asked him to call her at her neighbor’s telephone number if the note was insufficient. Appellant also told the supervisor she was going to Kaiser to obtain a doctor’s note for the remaining period she was absent. Appellant immediately faxed the supervisor the January 6 doctor’s note excusing her from work through January 8.

The supervisor forwarded the note to the Chief of Labor Relations. The Chief placed a call to the physician. The Chief was concerned the January 6 note was not completed by the physician and it did not have a diagnosis. Appellant had been frequently absent in the past. Respondent had begun automatic resignation proceedings in March. However, these were dropped when appellant provided the required medical documentation. The Chief was concerned that a pattern of absenteeism was again developing. In the past when appellant brought a doctor’s note substantiating her absence and releasing her to return to work without restrictions, appellant would return for only a short period before again missing work because of illness. When the physician and the Chief spoke on January 14, the physician asked the Chief if she had a telephone number for appellant because she had been trying to contact her. The physician told the Chief she could see appellant because she had appointments available until 7:00 p.m. The physician was not called to testify.2

The physician apparently left a message for appellant regarding an appointment on either Thursday, January 14 or Friday, January 15 at 6:00 p.m. The neighbor testified he took a message from the physician to appellant at some point. Appellant testified she knew there was an appointment available on Friday, January 15. Appellant testified she did not go to that appointment because the neighbor was not available to transport her and she didn’t feel safe going to the appointment at that time when it was dark.

Appellant left a voicemail message for the supervisor on the morning of Friday, January 15 telling him she could not get an appointment with Kaiser on either January 14 or January 15. Appellant told the supervisor she was going to urgent care on Saturday, January 16. There was no evidence appellant went to urgent care.

Monday, January 17 was a State holiday. Appellant called the supervisor on Tuesday, January 18 and told him she had a doctor’s appointment and would be coming in after that appointment. The supervisor told appellant she had been automatically resigned.

Appellant stated without contradiction 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.

In this case, appellant proved she had a valid reason for being absent. Appellant’s testimony coupled with the neighbor’s credible testimony regarding his observations support appellant’s inability to work.

Appellant also proved she had a valid reason for not obtaining leave. Appellant originally believed she was required to provide the information to respondent verifying her inability to work when she returned to work. The evidence showed that in the past, respondent had accepted medical information when appellant returned to work. There was no evidence that prior to Thursday, January 14, appellant was on attendance restriction, that she had been instructed she needed to see a doctor on the first day of her illness, that the doctor she saw had to be her treating physician or that she had to provide medical substantiation prior to her return to work. Respondent did not instruct appellant she had to provide medical information prior to her return to work until Thursday, January 14. Respondent mailed the notice of automatic resignation on Friday, January 15 even though appellant had informed respondent she planned to go to urgent care on Saturday, January 16. Although it is troubling that appellant chose not to attend the medical appointment on January 15 at 6:00 p.m., and that she did not go to an urgent care facility on Saturday, January 16, the notice of automatic resignation was already mailed (served) on Friday, February 15, only one day after respondent modified its previous instruction regarding medical verification. In addition, the evidence regarding when appellant was notified of a 6:00 p.m. Friday appointment is unclear. The physician was not called to testify. If appellant has attendance problems, clear instructions regarding the need for medical verification must be given. Appropriate disciplinary action may be taken through the State Personnel Board.

Appellant’s allegation that the supervisor hampered her ability to obtain leave by not returning her call is, however, without merit. Appellant bears the responsibility of contacting her supervisor to ensure she has provided the required information. This is especially true in this situation where the supervisor could not call appellant directly and the likelihood of miscommunication or no communication was increased.

Appellant is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Program Technician II effective January 28, 2005, is granted. Respondent is ordered to reinstate appellant to her position of Program Technician II within three weeks of receipt of this decision and order.

 

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1. All dates are 2005 unless otherwise indicated.

2. Appellant’s representative objected to the Chief’s testimony about the physician’s telephone responses as hearsay testimony. Government Code section 11513(d) states: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objections shall not be sufficient in itself to support a finding unless it would be admissible over objections in civil actions.”