DPA Case Number 06-W-0030 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 16, 2006

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 June 1, 2006, at Sacramento, California.

Appellant was present and was represented by Bill Sweeney, Labor Relations Representative, Service Employees International Union (SEIU).

Michelle Morrow, Legal 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 the appellant on March 15, 2006 she was being automatically resigned effective close of business February 28, 2006, for being absent without approved leave from March 1, through March 15, 2006. SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on March 24, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she should be reinstated because she had a valid medical reason for being absent; she believed she had been granted leave for her absence; and, she is currently ready, able, and willing to return to work.

Appellant has a history of absenteeism associated with a variety of medical, domestic, and alcohol abuse problems. On February 9 she entered a residential alcohol rehabilitation program for what she initially believed would be at least 30 days. She voluntarily left the residential program on March 1. She testified that she left the residential treatment center before completing the 30-day program because she needed to care for her daughter. Appellant testified she continued her rehabilitation by attending Alcoholic Anonymous (AA) meetings twice a day.

In support of her testimony, the appellant produced a Medical Certification which she testified was signed by her doctor on February 16. This certification indicates appellant’s condition began on January 18 and that she would be able to return to work on March 20. It indicated that the appellant was in the River City Recovery Center, a residential treatment facility.

The appellant also produced a May 23 note she testified was from her doctor. The May 23 note stated the doctor last examined appellant on February 26 but that he had “excused” her because of a medical condition beginning January 18. The May 23 note also indicated appellant’s medical leave was continued until March 20 so she could participate in both residential and outpatient rehabilitation programs.

Appellant’s physician was not called to testify. No one from the residential care facility was called to testify. No one from Alcoholics Anonymous was called to testify. Appellant did not provide any documentation regarding her rehabilitation attendance or progress.

The appellant argued she did not have to take additional steps to obtain leave because she believed her first and second level supervisors had granted her leave. She argued she believed they had unconditionally granted her leave under the Family Medical Leave Act (FLMA) once she submitted paperwork from her physician indicating her need to be absent.

Appellant testified she told her supervisors in a meeting on February 7 that she was enrolling in a residential alcohol rehabilitation program. She told them the program would last anywhere from 30 days to six (6) weeks. Appellant’s supervisors were very supportive. Appellant testified she asked them “if her job would be there” and they said it would. Appellant also testified the supervisors told her they would “get her the paperwork” and that she was to provide the name and address of the rehabilitation facility.

Appellant’s supervisors both testified that during the February 7 meeting, appellant was informed her leave would be approved if (1) she provided a doctor’s note authorizing her absence and (2) if she completed the rehabilitation program. Both supervisors also testified that appellant’s eligibility for leave under the FMLA was mentioned in the February 7 meeting. Appellant’s second level supervisor indicated she did not think appellant would qualify for leave under the FMLA because she believed appellant did not work the number of hours required to qualify. However, appellant’s supervisor indicated she would send the required leave paperwork to the appellant once an address was provided. Appellant’s eligibility for an FMLA leave was left unresolved.

Appellant provided the required address and contact information to the respondent on or above February 9. Respondent faxed a “Notice of Provisional Designation of Family Medical Leave (FMLA)” (FMLA letter) and a “Request for Medical Leave and Medical Certification” (Request and Certification Form) to the appellant at the residential care program on February 10. The FMLA letter notified appellant her leave was being provisionally designated as FMLA pending verification of her eligibility and receipt of medical certification from her health care provider. It also notified the appellant she could substitute paid leave for unpaid FMLA leave and that she may be eligible for Non-Industrial Disability Insurance (NDI) or Enhanced Non-Industrial Disability Insurance leave, and/or catastrophic leave. The letter explained appellant would be required to maintain a portion of her insurance premiums. It further notified appellant she had 15 days after she submitted her signed request for leave to provide the medical certification to support her request for leave.

Appellant signed the request portion of the Request and Certification Form on February 10. She did not however, designate which type of leave she was requesting. Appellant testified she took the certification portion of the Request and Certification Form to her physician on February 16. She testified that after the physician completed the form on that day, she mailed the Request and Certification Form to her supervisor. Appellant also testified she provided the Request and Certification Form to respondent’s personnel office. It is unclear how the form was provided the personnel office.

Both appellant’s supervisor and a representative from respondent’s personnel office testified they did not receive the Request and Certification Form prior to appellant’s automatic resignation. No final determination was made on appellant’s FMLA eligibility prior to her automatic resignation because that decision was normally made after receipt of the completed Request and Certification Form. After the appellant was automatically resigned based on her failure to provide the required medical certification, it was determined that she did not have the required number of hours to be eligible for FMLA leave.

There were several communications between the appellant and her supervisors in addition to those on February 9 and 10. On or about February 17, the appellant spoke with her second level supervisor. The appellant recalled leaving the supervisor a message asking if there were any checks for her and the supervisor recalled the appellant requesting disability insurance forms be sent to her at the residential care program.

Appellant’s immediate supervisor next recalled talking with the appellant on February 28. Appellant called the supervisor. During that conversation the appellant informed the supervisor she was in the treatment facility until March 15. They then discussed appellant’s eligibility for continuing medical benefits. The supervisor told the appellant she had to work eleven (11) days in March to maintain her health care benefits. According to the supervisor, appellant was told that as long as she returned to work by March 17 or 20, her medical benefits could continue.

According to the appellant, she received calls from both of her supervisors asking about her return to work date and explaining she needed to work 11 days in March to continue her medical benefits. The appellant testified her supervisors asked her to return to work earlier than the March 20 medical release date. Appellant testified she told her supervisors she would check with her doctor to see if she could be released early. Appellant testified that although she subsequently left messages for her supervisor asking about returning to work, she did not hear from respondent again until she received the notice of automatic resignation.

Appellant’s supervisor testified that in response to appellant’s February 28 call, she mailed health insurance information and a check to appellant at the treatment facility. On March 14, the supervisor called the treatment facility to verify the check was received and to further discuss appellant’s medical benefits. At that time the supervisor was informed by treatment facility staff that the appellant had left the residential treatment program on February 28 because “she was fine.”

According to appellant’s supervisor, she left a message for appellant on March 15 saying appellant would be considered absent without leave because she left the residential treatment program and that she would be receiving a confirming letter. Respondent sent appellant the notice of automatic resignation on that day.

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 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 from March 1 through March 15. Appellant failed to prove by a preponderance of the evidence that she had a valid reason for leaving the residential treatment facility before successfully completing the minimum 30 day program. She failed to produce objective, reliable evidence that she enrolled and participated in any rehabilitation program from March 1 through March 15. Appellant’s physician ultimately authored a note on May 23, more than two months after the appellant had been automatically resigned, that excused appellant from work for participation in both a residential inpatient and an outpatient program. Prior to this May 23 document, there was no mention of “outpatient rehabilitation” in any written or oral communication. Unlike other conditions under the FMLA, active substance abuse – in this case alcohol abuse is not a condition which by itself qualifies for leave. It is only treatment for the abuse by a provider of health care services or by a provider of health care services on referral by a health care provider that qualifies for FMLA leave (29 CFR § 825.114). Appellant’s doctor did not provide treatment from March 1 through March 15. There was no evidence of referral to any other health care provider other than to the residential treatment facility. Appellant’s physician was not called to testify. A document authored more than two months after appellant had been automatically resigned that for the first time includes a general reference to outpatient rehabilitation after appellant prematurely ended her participation in an inpatient program is an inadequate basis on which to determine appellant had a valid reason for being absent.

Appellant also failed to prove she had a valid reason for not obtaining leave. Appellant’s argument she believed she had secured leave because she provided respondent with medical certification from her doctor on or about February 16 is without merit. Both the appellant’s supervisor and respondent’s personnel representative credibly testified respondent never received the Registration and Certification Form. Appellant has the responsibility to ensure receipt of the document. Even if the respondent had received the February 16 medical certification, such certification only indicates appellant should be excused from work based on her participation in a residential rehabilitation program. When the appellant verbally requested leave, it was for an in-patient residential program. Respondent was never notified of a change in appellant’s rehabilitation program requirement nor did it receive clarification prior to appellant’s automatic resignation that appellant’s rehabilitation may have initially included an outpatient rehabilitation component that required appellant to be off work. Although the appellant spoke with her supervisor on February 28, one day before she checked herself out of the residential rehabilitation program, the appellant did not inform her supervisor during any of those calls that she was leaving the residential program. Although the appellant testified she called her supervisors several times to talk about her return to work, the appellant did not notify her supervisor that she had prematurely left the 30 day residential program, that she was engaged in outpatient rehabilitation, or that she had to be at home to care for her daughter.

Although respondent did not receive the completed Request and Certification Form and the appellant did not qualify for FMLA leave, respondent granted appellant leave for the period it could verify she was participating in a rehabilitation program. Appellant was notified on February 7 that she must complete the rehabilitation program she described that day and she must provide medical substantiation for her absence. Appellant did not meet these requirements. Respondent reasonably denied appellant leave.

Appellant also failed to prove she is ready, able, and willing to return to work. The purpose of appellant’s absence was to provide time for appellant to successfully complete an alcohol rehabilitation program. There was no reliable evidence appellant has done so or that she is currently enrolled in a program that has enabled her to function successfully in the workplace. Neither appellant’s physician, nor a representative from the residential care program, nor a representative from an outpatient rehabilitation program testified on appellant’s current status.

 

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that the appeal for reinstatement after automatic resignation effective February 28, 2006, is denied.

 

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1. All dates are 2006 unless otherwise indicated.