Final Non-Precedential Decision Adopted: January 24, 1999

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 14, 1999, at Sacramento, California.

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

John Dunnigan, Staff Counsel, represented the Department of California Highway Patrol (CHP), respondent.

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

Appellant was automatically resigned effective close of business April 12, 1999. She filed a request (appeal) for reinstatement after automatic resignation on May 4, 1999. The appeal complies with the procedural requirements of Government Code section 19996.2.

On April 19, 1999, respondent sent a letter to appellant notifying her that effective April 20, 1999, she would be considered to have automatically (AWOL) resigned on April 12, 1999, because she was absent without approved leave from April 13 through April 19, 1999. Appellant appealed on the grounds that she had a satisfactory reason for being absent and not obtaining approved leave and that she is ready, willing and able to return to work.

Appellant also claimed that respondent improperly resigned her because she was not absent the requisite five consecutive working days. Appellant reported to the work site approximately 15 minutes before the end of the fifth consecutive workday.

Appellant was scheduled to work on April 13, 14, 15, 16 and 19, 1999, from 9:00 a.m. to 5:30 p.m. She did not report for work on April 13 through April 16, 1999. On April 19, 1999, she did not report to work until 5:15 p.m., which was 15 minutes before the end of her shift. Because she could not remember her computer password, she was unable to perform any work during that 15-minute period. Appellant admitted she only came into the office to avoid being automatically resigned.

Appellant testified that she was unable to work on any of the scheduled workdays indicated because she had been traumatized by a fitness for duty examination, which was held on January 11, 1999. The evidence on the record indicated appellant had poor attendance in the year preceding the automatic resignation and she was sent to three fitness-for-duty examinations to resolve absenteeism/health issues. On June 15, 1998, she was sent to an endocrinologist. On September 9, 1998, she was sent to an internist. And, on January 11, 1999, she was sent to a psychiatrist and psychologist. The results of each exam were that she was found fit for duty.

At the hearing, in addition to her testimony, appellant sought to enter one note from her internist, and two notes from her psychologist, who has been treating her since February 1999. The note from her internist was dated February 10, 1999. It stated that appellant "needs a three-month LOA to enable her to follow through with treatment for a severe mental disorder." This note predated the fitness-for-duty examination of the psychiatrist and psychologist. Appellant’s internist was not called to testify.

The first note from appellant’s psychologist was addressed and sent to the Commander on or about February 23, 1999. It stated in its entirety:

"I have been seeing [appellant] in individual psychotherapy for issues related to a buried trauma that was brought up after a psychiatric interview. At this point she is dealing with intense feelings and memories, and is not able to function at work productively. Her physician recommended that she take three months off work, and I concur. Since I am seeing her twice a week, I am hopeful that we will be through this process by Monday May 17th, so that she can return to work. However, this date must be subject to her making appropriate emotional progress. If you have further questions, do not hesitate to call."

Appellant’s psychologist was not called to testify.1

Appellant’s internist’s note and her psychologist’s first note were initially submitted to respondent in February 1999, to support a leave of absence requested by appellant. In light of the fitness for duty reports, respondent determined the notes were inconsistent with and insufficient to support a medical leave of absence. For purposes of establishing appellant had a medical reason for being off work, the documents are rejected as uncorroborated hearsay.

On May 8, 1999, after her automatic resignation, appellant obtained a second note from her psychologist. It stated appellant needed time off to deal with "issues related to buried trauma." For purpose of establishing a medical condition making appellant unable to work, this document is similarly considered uncorroborated hearsay and cannot be relied upon in making such a finding.

Appellant presented no other evidence to establish a medical reason sufficient to find her unable to work April 13 through April 19, 1999.

Appellant was off work from January 1999 through April 12, 1999. The evidence established that on February 12, 1999, appellant requested a three-month leave of absence. On February 22, 1999, the Commander responded and advised her that the request could not be considered without proper medical substantiation. Appellant then submitted the February 23, 1999, note from the psychologist, which is set forth in its entirety at page 3. On April 2, 1999, the Commander responded to the effect that he was denying the request based upon three fitness-for-duty examinations that found appellant fit for duty in her position as Associate Programmer Analyst. He warned and directed her as follows:

"The Department has taken all reasonable actions to assist you in dealing with your attendance problems. It is now your responsibility to improve your attendance or be subject to disciplinary action. You are to report to work at 9 a.m. on Tuesday, April 13, 1999, or you will be considered absent without leave (AWOL).

If you have any questions, please contact me at [telephone number omitted]."

After the denial of leave in February 1999, appellant did not revive her request for a leave of absence and did not submit any additional medical substantiation for remaining off work. Appellant did not return to work on April 13, 1999, as directed.

Appellant testified she called in each day of her absence to advise her supervisor she would not be coming to work. Her supervisor testified appellant left vague voice mail messages between April 13 and 19, 1999. She never requested, and she was not granted, additional time off because of her failure to produce any credible medical substantiation.

Without appropriate medical substantiation, respondent was not required to place appellant on approved leave. Although appellant claimed compliance with reporting requirements, she did not comply with reasonable requests for medical substantiation sufficient to support her absence from April 13 through April 19, 1999.

Appellant claimed a medical reason for being absent, yet she presented no medical evidence that she is currently able to work. Appellant testified she was released May 17, 1999, to return to work, based upon the notes from the psychologist. The first note, which was dated February 23, stated "I am hopeful that we will be through this process by Monday May 17th, so that she can return to work. However, this date must be subject to her making appropriate emotional progress." The note dated May 8, similarly stated, "I have been hopeful that she would be well enough, and through the major part of her emotional stress, to return to work by Monday May 17th. When last I saw her earlier this week, she was feeling much clearer, and feels ready to return to full time employment." Even if these uncorroborated hearsay statements were reliable as evidence, which they are not, they do not demonstrate a release to return to work on any given date.

Appellant did not identify conditions which would support a finding that she can work successfully in the very same environment she testified caused her to be so stressed as to be unable to perform her job duties.

 

* * * * *

Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the Department of Personnel Administration. 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. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence the 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 did not prove that she had a reasonable explanation for failing to report to work from April 13 through April 19, 1999. Her testimony that she was so traumatized by her fitness for duty examination that she could not work was self-serving and otherwise unsupported by reliable medical evidence.

Likewise, appellant did not provide a reasonable explanation as to why she did not comply with respondent's request for adequate medical substantiation if, in fact, she was actually unable to work. Nor was it credible that having been declared fit to work, she claimed injury from the fitness for duty examinations but would not and did not provide adequate medical substantiation of an actual injury or illness at either the Coleman hearing or the hearing on her request for reinstatement.

Appellant claims she is ready, able and willing to return to work. The basis of her claim is that the psychologist released her May 17, 1999. Assuming arguendo that she was unable to work in February, March or April 1999, there was no reliable evidence that she was actually released by her psychologist or her treating physician, if any, in May 1999.

Appellant claimed procedural error. She opined that respondent could not automatically resign her because she was not absent without approved leave for a full five consecutive days. Respondent’s position was that appellant failed to report as required on those five days, and that reporting for work 15 minutes before your shift ends, does not cure the failure. In the Coleman decision cited above, the Court determined DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. The decision as to whether the five-day statutory time frame was met rests with the appointing agency, subject to review by the Coleman officer. DPA's role is to make a determination as to whether appellant has a satisfactory explanation for absence and failure to obtain leave. If an appellant proves both, then DPA has authority to determine whether the appellant is currently ready, able and willing to return to work. Accordingly, it is determined that respondent's compliance with the statutory five-day time frame is presumed.

For the reasons set forth above, the appeal should be denied.

 

* * * * *

that the appeal for reinstatement after automatic resignation effective April 12, 1999, is denied.

 

* * * * *

1. Appellant’s representative advised the ALJ at the hearing that the psychologist was set up to testify telephonically. However, calls were placed to the psychologist in the morning and afternoon sessions of the hearing and the psychologist did not respond. The representative indicated the psychologist was not a subpoenaed witness and the efforts to reach her and obtain voluntary testimony were made after 6:00 p.m. the Friday pursuant to the Monday morning hearing.