Final Non-Precedential Decision Adopted: February 27, 2002
By: Howard Schwartz, CalHR Chief Counsel
Respondent automatically resigned appellant effective close of business, December 3, 2001, for being absent without approved leave from December 4 through December 10, 2001. Appellant filed a request (appeal) for reinstatement after automatic resignation on December 17, 2001. The appeal complies with the procedural requirements of Government Code section 19996.2.
Appellant filed a form appeal. At hearing, she claimed she was unable to work due to illness and her need for treatment. She claimed she is currently ready, able, and willing to return to work.
Appellant testified that she last worked until 3:30 p.m. on December 3, 1991. At that time she notified her immediate supervisor that she was leaving work because she was ill. She testified that she was, “for the most part,” unable to work during the period of December 4 through December 11, 2001, because she continued to be ill. She testified that she received acupuncture for her illness on December 3, 6 and 10, 2001, and that she was seen at an urgent care clinic on December 5, 2001.
Appellant testified that she did not return to work before or after her medical appointments during this period because she feared that her supervisor would not release her for future medical treatments she felt she may need if she became ill at work.
Appellant presented no medial evidence to support her claim that she was unable to work due to illness.
On November 14, 2001, appellant‘s supervisor notified her that she must receive approval from him for “routine medical appointments” at least two working days in advance or the absence would not be approved. On November 26, 27, and 28, 2001, the supervisor notified appellant that the doctor excusing her from work needed to fax him medical substantiation during the day the illness occurred or she would be considered absent without leave (AWOL) for that day. On December 5, 6, and 10, 2001, the supervisor sent e-mails to appellant reiterating the need for medical substantiation for her absences in accordance with these requirements. Although appellant consistently promised to forward this information, she ultimately never provided any medical substantiation whatsoever for any of her absences from December 3 through December 10, 2001.
Appellant testified that she did not present such information and thereby did not obtain approved leave because she felt “boxed in” by her supervisor’s medical substantiation requirements and could not comply with them. She testified that she did not have medical substantiation of her need to be absent from work because she had recently lost her primary care physician of 17 years and the other health care providers she saw were unable to accurately access her medical condition and her ability to work. She speculated that her doctor terminated her as a patient because of her supervisor’s medical substantiation requirements. She testified that she was unable to give her supervisor 48 hours advance notice of medical appointments or need to be absent because she could not predict when she would be ill and need medical attention. She also testified that she failed to obtain approved leave because she did not want to have medical information faxed to her supervisor because other employees could potentially view her confidential information. Appellant also claimed that she did not obtain approved leave because she did not understand that she would be terminated from State service as a result of being AWOL. She testified that she believed that she would only be docked pay as a result of not obtaining leave. She testified that although she may not be paid as a result of not obtaining approved leave, her health was her most important concern.
Appellant testified she is ready, able, and willing to work. She also testified that she continues to experience health problems, which intermittently cause her pain. She believes she requires continuing medical attention for her health problems, but she has not seen a doctor or other health care professional since December 11, 2001, because she has no health care coverage.
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 he/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/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 he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
Appellants’ own testimony was insufficient to establish, by a preponderance of the evidence, that she had a medical condition, which prevented her from working from December 4 through December 10, 2001. The hearing officer advised appellant at the hearing that testimony or other non-hearsay evidence from a doctor or other health care professional regarding her illness, the necessity for her being absent from work, and her ability to return to work was required in order to mandatorily reinstate her. Appellant chose not to present such evidence. The brief medical notes that were submitted by appellant in support of her own testimony on these matters are considered hearsay. They are not reliable evidence on which to base a finding that appellant had a satisfactory reason to be absent from work from December 4 through December 10, 2001. They do not indicate that she was required to be off work because of her medical condition, and they do not excuse her absences during the relevant period. Appellant made no visible effort to obtain any reliable medical evidence to support her claim of illness or her need for treatment.
Appellant’s testimony also failed to establish, by the preponderance of the evidence, that she had a satisfactory reason for not having obtained leave. Although she was notified in writing, on multiple occasions, of the necessity for providing timely medical substantiation, she failed to provide any medical substantiation whatsoever at any time to Respondent for the period of December 4 through 10, 2001. Appellant knew she would not be granted approved leave if she did not submit the required medical substantiation. Therefore, the employer was justified in denying leave.
Appellant’s assertion that she did not understand that she could be separated from State service as a result of being absent without approved leave, was undermined at the hearing by her own testimony and her work history. She admitted that CSEA assisted her in 1997 with a similar issue in connection with a position she had with the Department of Social Services. Although appellant could not remember if she settled the issue, her work history shows that an automatic resignation was processed and voided and that appellant subsequently voluntarily resigned from that position.
Appellant’s assertion that she objected to faxing her medical information to her Supervisor because of the potential lack of confidentiality also fails to provide a satisfactory explanation of her failure to obtain leave. Although she was aware of this requirement as early as November 24, 2001, she failed to raise this issue with her supervisor until December 7, 2001, five days after she failed to report to work and failed to secure medical substantiation for her work absences. Appellant has failed to provide a satisfactory explanation why she failed to obtain leave for her absences.
Appellant placed her medical condition at issue. Assuming arguendo that appellant proved both a satisfactory reason for being absent and for not having obtained leave, she did not present medical evidence sufficient to establish she is ready, able, and willing to work.
For the reasons set forth above, appellant should not be mandatorily reinstated to State service and her appeal should be denied. Appellant retains permissive reinstatement rights to state service.
that the appeal for reinstatement after automatic resignation effective December 3, 2001, is denied.