DPA Case Number 01-L-0083 - Reinstatement After Automatic Resignation

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on October 24, 2001, at Riverside, California.

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

Jeanell Bradley, Staff Services Manager, represented Department of Transportation (CALTRANS), respondent.

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

On August 6, 2001, respondent served appellant with a Notice of Automatic Resignation. The notice advised appellant that she would be retroactively resigned effective close of business July 27, 2001, the last day she worked, for being absent without approved leave from July 30 through August 6, 2001. On August 23, 2001, appellant filed a request (appeal) for reinstatement after automatic resignation. The notice and appeal comply with the procedural requirements of Government Code section 19996.2. The record remained open until November 30, 2001, for the parties to submit a joint declaration regarding the testimony of the psychiatrist and written closing arguments.

Appellant claimed that she was medically unable to work between July 30 and August 6, 2001. Initially she claimed that she provided timely medical substantiation to her supervisor regarding her need to be off work from July 30 through August 6, 2001. Later she claimed she provided substantiation on August 8, 2001, through a fellow employee and that her employer had previously accepted notes submitted through other employees. She also claims she is currently ready, able and willing to return to work.

Appellant testified that she was unable to work from July 20 through August 6, 2001, because of illness. During that period and the two years preceding, appellant was under the care of a psychiatrist with Kaiser Permanente Medical Group.

The parties’ stipulated that in order to protect appellant’s privacy, the record would exclude any evidence as to the specific nature of appellant’s psychiatric impairment. The parties further stipulated that the ALJ would rely solely upon the medical conclusions of the psychiatrist as to whether appellant was able to work on July 30, July 31, and August 1 through 6, 2001.

The psychiatrist saw appellant on July 25, 2001, and provided her with an off work order through Friday, July 27, 2001, and a return to work date of Monday, July 30, 2001. Appellant did return to work on July 30 and did not revisit the psychiatrist’s office until Tuesday, July 31, 2001. At that time the psychiatrist concluded that, due to her condition, she was unable to work. He put her off work for four (4) calendar days commencing July 31, 2001, and he referred her to an Intensive Outpatient (IOP) Program for treatment of depression. The program was to commence the following Monday.1 He determined that once she began the program she would be at the beginning of a very lengthy off work period and he would give her weekly off work orders accordingly.

Neither appellant nor the psychiatrist testified as to whether appellant actually began the program on August 6, 2001. There also was no evidence as to whether appellant returned to the psychiatrist’s office after July 31, 2001, and obtained an off work order specifically for the week beginning August 6, 2001.

The evidence established appellant was medically unable to work on the following work days: July 31 and August 1, 2 and 3, 2001, and that she needed long-term intensive outpatient care for depression. If she began attending the IOP treatment program on August 6, 2001, she also would have been unable to work on August 6, 2001 and following.

When appellant failed to return to work on July 30, 2001, she did not call her supervisor to advise her that she would be off work. On July 31, 2001, she called her supervisor and left her a voice-mail message at 6:57 a.m. The message was something to the effect of “I will be a little late.” However, on that date appellant never did not report to work.

Instead on July 31, 2001, appellant met with two friends and fellow employees in a parking lot adjacent to the work site. Both are employed as CALTRANS Right of Way Agents in the same building with appellant. They do not work for the same supervisor.

One friend testified she met with appellant to discuss her expiring notary license. She said she needed to go to the Attorney General’s office that day regarding its expiration. The second friend testified she met with appellant at 3:15 p.m. to give appellant a Catastrophic Leave Request Form, which her supervisor had prepared for her.2 The second friend further testified that during the 3:15 p.m. meeting, appellant told her she was on her way to the doctor’s office.

Appellant visited the psychiatrist’s office on July 31, 2001. 3 During the visit, the psychiatrist gave her an off work order for four calendar days (July 31, 2001, through August 3, 2001). The psychiatrist testified that when appellant met with him on July 31, 2001, she told him she had been off work since July 20, 2001. He told her he could not give her a back-dated off-work order, so he wrote a note for her on his prescription pad “only to indicated that she had been off on those dates. “ He further stated he wanted to cover her for that period of time and give her enough time to get into the IOP program. The note from the prescription pad was placed in evidence. It stated, “to whom it may concern [appellant] has been tx for her depression and anxiety. She will need to be off work for 3-4 weeks starting 7/20/2001.”

As stated at section IV above, there was no evidence that appellant actually entered the program on August 6, 2001, or obtained any medical substantiation for her participation on August 6, 2001.

Appellant did not call either her direct or second-line supervisor after July 31, 2001. During the entire period July 30 through August 6, 2001, she did not submit either the four-day off-work order or the prescription pad note from the psychiatrist to her employer.

On August 8, 2001, after the Notice of Automatic Resignation had issued, appellant sent her employer the two documents through her friend who brought them into the workplace and put them on the supervisor’s desk.

During the period appellant was off work, appellant failed to comply with the leave policies established by her employer and with specific instructions for reporting absences and obtaining permission for leave usage, which were provided in a leave restriction memorandum issued to her on July 19, 2001. According to the terms of the memorandum, appellant was required to substantiate all illnesses in writing by a physician and the substantiation was to be obtained during the period of illness and turned in when she reported back to work or within three days of her first absence, whichever was earlier. Also according to the memorandum, appellant was to personally contact her supervisor no later than 8:00 a.m. on the day of the unanticipated absence. If her supervisor was not available, she was to contact her second-line supervisor. If neither was available to speak directly with her, she was to leave a voice-mail message including the number where she could be reached for clarification. The memo stated that a failure to comply with reporting requirements and/or a failure to provide timely medical substantiation would result in recording appellant’s absence as AWOL (absence without approved leave).

Appellant’s supervisor made a number of attempts to contact appellant during the period July 30, 2001, through August 6, 2001, without success.

When appellant did not return to work on Monday, July 30, 2001, and did not contact her supervisor or anyone in authority to advise she would not be at work, the supervisor called both appellant’s home and the psychiatrist’s office. She left a message for appellant to call back. Neither the psychiatrist’s office nor appellant returned the call that day.

On Tuesday, July 31, 2001, at 6:57 a.m. appellant’s supervisor received appellant’s voice-mail message saying she would be “a little late.” Consequently, she waited for appellant to appear, but appellant did not.

On Wednesday, August 1, 2001, appellant’s supervisor called her home again and tried to find out why she was not at work. The answering machine was either disconnected or full, so she was unable to leave a message.

On Thursday, August 2, 2001, the supervisor again called appellant’s home. She was able to leave a message, but did not reach appellant. The message which she left was for appellant to call her. That same day, appellant’s second-line supervisor also called her home but was unable to reach her. The supervisors tried to contact the psychiatrist but were unsuccessful.

On Friday, August 3, 2001, appellant’s supervisor called her home and left another message advising appellant to come to work. She also asked where appellant was and whether she was sick. Appellant never called back.

Appellant admitted she received the leave control memorandum and was familiar with the leave restrictions in the memo. She testified that she believed she did not need to comply with the call in procedures in the leave control memorandum because she had been allowed to submit late substantiation before to her employer.

Appellant testified she did not recall receiving voice-mail messages from her supervisor regarding her absence. She also testified that it stressed her to call her supervisor. When asked, she did not provide a reason for failing to contact her second-line supervisor.

Initially, appellant testified that she had provided medical substantiation to her employer in a timely fashion on July 31, 2001, through her friend. However, after the friends testified that they met with her on July 31, 2001, but that she did not give them anything to take to her supervisor, she changed her testimony. Thereafter, she argued that she had previously been allowed to submit late medical substantiation to excuse absences, so she should have been allowed to do so on this occasion.

Appellant had no reasonable explanation for not calling either her supervisor or second-line supervisor during the period of her absence to inform them she was not coming to work. She also did not explain the Tuesday morning call saying she was coming to work that day.

The evidence establish appellant never requested and never was granted leave for the period July 30 through August 6, 2001, and that she did not provide timely medical substantiation to her employer sufficient to excuse her absence between July 30 and August 6, 2001.

The parties stipulated appellant is ready, willing and able to return to work.

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file a 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.

The appellant proved by the preponderance of the evidence that she had a satisfactory reason for being absent from work on July 31, and August 1, 2 and 3, 2001. The reason was that she had visited her physician and was medically excused from work by him.4 The psychiatrist did not present testimony establishing that appellant was unable to work on July 30, 2001. He also did not present testimony that she was unable to work on August 6, 2001. He testified he would have provided her with an excuse to be off work if she were in the IOP program which would require her attendance throughout the weeks of care.

Assuming arguendo that appellant’s medical condition was of a nature to require her to be off work the entire period of July 30 through August 6, 2001, appellant failed to prove by a preponderance of the evidence that she had a satisfactory reason for not having obtained leave. She not only failed to call her employer to advise that she would be off work, she called on one day and stated, to the contrary, that she would be at work. She avoided several calls from her supervisor asking where she was and if she would return. She did not visit the psychiatrist on July 30 or prior to that date to obtain an extension of the leave, which he previously authorized to that date. She obtained substantiation for July 31 through August 3, 2001, when she visited the psychiatrist on July 31, 2001, but she never forwarded it to her supervisor until after she was issued a notice of automatic resignation, and after the period required by the attendance restriction memorandum. To this date appellant has not obtained documentation that she needed to be off work on July 30, 2001, and the psychiatrist’s note on the prescription pad, as he described it, was not an off work order. (He would have provided her additional off work orders for weeks she was in the IOP Program, but there was no evidence that he did or even that she entered the program to which he referred her.)

Since appellant failed to prove that she had a satisfactory explanation for not obtaining leave, the issue of whether she is ready, able and willing to return to work is moot.

For the reason set forth above, appellant should not be manditorily reinstated to her position as a right of way agent. Appellant retains permissive reinstatement rights.

 

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that the appeal for reinstatement after automatic resignation effective July 27, 2001, is denied.

 

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1. The IOP program requires attendance on three days per week, Monday, Tuesday and Thursday (between 9:00 a.m. and noon) for group counseling and intensive personal counseling. She would also see a psychiatrist once or twice a week while in that program.

2. Appellant never called or asked for catastrophic leave. Her supervisor noted she had been off work since July 20 and her leave balances were depleted. Accordingly, she thought appellant would want to have donations of leave from other State employees if she qualified.

3. The time of day was uncertain. Originally, she testified it was in the morning. However, the second friend said she met with her at 3:15 p.m. and, during the meeting, appellant stated she was on her way to the doctor’s office.

4. In a written closing brief, appellant’s representative argued that appellant suffered severe depression and identified the standard symptomatology associated with severe depression. The argument went on to imply that appellant’s supervisors were aware of the nature and extent of appellant’s medical condition and, by denying retroactive leave, did not treat it with the “same sympathy that might have accompanied a terminal condition” although the “symptoms, the illness and the need for on-going treatment were still a known factor.” This argument was improper given the fact that in order to preserve appellant’s privacy regarding the nature of her illness, appellant’s representative invited and was granted a stipulation restricting the record to exclude any evidence as to the specific nature of appellant’s psychiatric impairment. Further, in order to protect appellant’s privacy, the ALJ agreed to rely solely on the psychiatrist’s conclusions as to whether appellant could work on the days at issue, without making her own conclusion as to the specific nature of appellant’s illness.