DPA Case Number 02-C-0042 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: August 1, 2002

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:20 a.m. on July 10, 2002, at Riverside, California.

Appellant was present and was represented by Fernando Acosta, Attorney, California State Employees Association (CSEA).

Karen E. Tarp, Staff Counsel, represented the Department of Motor Vehicles (DMV), respondent.

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

Respondent automatically resigned appellant effective close of business March 8, 2002 for being absent without approved leave from March 11, through March 15, 2002.1 CSEA filed a request (appeal) for reinstatement after automatic resignation on April 9, 2002.2 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contends he should be reinstated because he was ill; his health care provider hampered his efforts to comply with respondent’s procedures to obtain leave; and, he is ready, able, and willing to return to work.

Appellant has diabetes. He advised respondent he had this condition when he was hired. During the relevant period, appellant had a bladder infection, and experienced both physical and mental complications from adjustments in his prescribed medications.

Appellant presented undisputed medical verification that he was unable to work for the period of February 16 through June 9. Appellant had a valid reason for being absent.

Appellant does not dispute that he knew the procedures he was to follow when he was unable to come to work.

When he was first employed at DMV in January 2001, he received a memorandum advising him that if he was going to be absent, he or his representative must call his immediate supervisor within the first 30 minutes of his shift. The memorandum also advised him that unscheduled absences would be evaluated on an individual basis and that approval would not be given or determined until he returned to work.

Appellant began missing work on February 16. On or about February 20 respondent sent appellant multiple DMV Family Medical Leave Act (FMLA) documents. Appellant was instructed to have his doctor complete the documents. Appellant was to return the completed documents to respondent by March 7.

On or about March 1, appellant’s supervisor told him that he could not return to work until he was released “without restrictions.”

On or about March 4, the supervisor reminded appellant that he needed medical verification. She also instructed him to call her or another supervisor regarding his ability to work after he had seen his doctor.

Appellant’s supervisor sent appellant an application for Non-industrial Disability Insurance on March 6. She again reminded him that he needed a doctor’s release when he returned to work.

On March 8, the supervisor sent appellant another memorandum advising him that he was to call her if he was unable to work. She also instructed him that any doctor’s note he submitted must include the doctor’s name, address, and telephone number.

Before appellant was hired at DMV, he had no health care insurance. After being hired in January 2001, he chose Kaiser as his health care provider. Before March 5, he did not have a primary care physician. When he was sick, he received treatment on a walk-in basis.

Appellant began attempting to get the required medical information and documentation on or about February 27. On that day, he went to Kaiser on an urgent care, non-emergency basis. He intended to get the FMLA forms completed. However, he was told that he needed to have an assigned primary care physician and that he had to contact a different Kaiser facility.

Appellant saw his physician on March 5. Appellant attempted to give the physician the FMLA documents. The physician would not accept the documents and referred appellant to Kaiser’s Medical Correspondence Unit (MCU). Appellant immediately took the FMLA documents to the MCU. The MCU would not accept the documents because the physician had not signed them. When appellant went back to his physician’s office, the receptionist told him he needed another appointment to get the documents signed.

On March 5, the physician took appellant off work for ten days beginning March 1. Appellant did not discuss the return to work date with the doctor. Instead of calling his supervisor after his doctor appointment, appellant took the off-work slip to the Bellflower DMV office and put it on her desk. He did not discuss his ability to work with anyone. When appellant received his supervisor’s March 6 correspondence referring to his March 11 return-to-work date, he was confused. He did not know how his supervisor determined he was able to return to work on that day. Appellant did not understand that the doctor had released him to return to work on March 11.

Appellant did not call his supervisor and he did not report to work. He continued to be ill the week of March 11. He continued to have physical symptoms and began experiencing mental problems. He cried, heard voices, and became very emotional.

Appellant attempted to get another appointment with his physician. He tried to contact him directly, but Kaiser would not give him the doctor’s telephone number. Appellant did not go to the emergency room because a visit would cost $75 and he had no money.

It is unclear if appellant saw his physician next on March 20 or March 26. When he did see his physician, appellant was given a medical note verifying that he was to be off work for 20 days. The note did not designate when the 20 days began; it did not indicate that appellant was released without restrictions; and it did not give the doctor’s address or telephone number.

Appellant did not give this off-work slip to his supervisor. He testified that he did not do so because the doctor “filled it out wrong.” Appellant knew that it did not have the specific information that his supervisor had repeatedly told him he needed. Therefore, he reasoned that he had nothing to give her and he had nothing to tell her. He testified that he just did not know what to say.

During the appointment in late March, appellant again attempted to have his physician complete the FMLA verification papers. The physician again referred him to the MCU. Appellant then explained his previous difficulties. He also explained that he needed this documentation to keep his job. The physician told appellant to tell the MCU to rush the paperwork through the system.

Appellant immediately took the FMLA documents to the MCU for a second time. He explained the importance of the paperwork. The MCU assured him that they handled such paperwork on a routine basis and that they would rush it through the system. They told him they would send a copy of the completed paperwork to respondent. The MCU did not explain any additional procedures that appellant needed to follow in order for it to process the documents. Appellant left the FMLA packet with the MCU.

When appellant received the March 29 notice that he was to be automatically resigned effective April 10, he believed that he was already in the process of providing the required information. He believed the MCU was processing the FMLA documents and that it would be expeditiously providing them to his employer.

In order to ensure that Kaiser was processing the required paperwork, appellant returned to the MCU on April 1. It was not until this date that Kaiser required him to sign an Authorization for Release of Medical Data so they could provide the information to respondent.

Appellant attended his Coleman hearing on April 11. He explained the difficulty he had in securing the proper medical documentation. The Coleman Officer contacted Kaiser’s MCU that day and asked that they fax him a copy of the documentation that afternoon.

Kaiser did not fax the FMLA paperwork to the Coleman Officer until April 12. By this time, the Coleman Officer was on vacation. Appellant did not receive a copy of the completed FMLA paperwork until he went back to the MCU and picked it up on April 12.

Respondent did not accept appellant’s documentation because it was presented after the effective date of the automatic resignation.

Appellant admits that he received instructions from his supervisor requiring him to call her and to provide medical verification for his absence. Appellant believed that his supervisor knew that he was still sick on March 11. He did not understand that the doctor had released him to return to work on March 11. He was experiencing both physical and mental symptoms. His supervisor did not call to see why he did not report to work. Respondent also did not follow-up on the FMLA documentation.

Appellant acted in good faith. He tried for over one month to get the precise information and documentation his supervisor told him was required for an approved leave and for his return to work. His illness, his health care provider, and his inexperience in dealing with such matters frustrated his efforts.

When he was unable to get the precise information and documentation, he felt he had “nothing to say” to further explain his absence or his failure to provide the required documentation. His failure to call his supervisor is consistent with his frustration and confusion.

Even if appellant would have called his supervisor, the supervisor testified that she would not have accepted the March note excusing him for 20 days because it was incomplete and did not state that appellant could return to work without restrictions. She also testified that the requirement to call in during an extended absence varies on an individual basis.

In this case, appellant did not blatantly ignore his supervisor’s instructions. He attempted to follow them precisely. Although he exercised poor judgement when he did not contact his employer to explain his difficulties, his physical and mental state, his frustration and confusion, and his obvious inexperience in dealing with such matters, provide a sufficient reason for appellant’s failure to obtain leave.

It is uncontested that appellant is currently ready, able and willing to return to work.

 

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 had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

In this instance, it is undisputed that appellant was ill and unable to work during the charged period. Appellant was experiencing both physical and mental symptoms as a result of adjustments in medication for his diabetes. Respondent knew that appellant was ill.

Appellant did not blatantly ignore respondent’s procedure for obtaining approved leave. When he had medical documentation that he believed met his employer’s criteria, he personally delivered it. For over a month, he attempted to obtain the precise medical documentation required by his supervisor. His efforts were frustrated by his prolonged illness, his inexperience and lack of knowledge in dealing with his health care providers, and his misplaced belief that he could rely on his health care provider to quickly provide the necessary documentation to his employer.

Appellant showed poor judgement by not calling his employer to report his difficulties. However, in this case, this poor judgement is offset by appellant’s inability to obtain documentation which would have provided his employer with the basis on which to approve leave. Even if appellant had called in, he still would have been required to provide documentation that he was unable to get until after his Coleman hearing.

It is undisputed that appellant is ready, able, and willing to return to work.

Accordingly, appellant should be mandatorily reinstated to his prior position in the Bellflower Office.

 

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that the appeal for reinstatement after automatic resignation effective April 10, 2002, is granted.

 

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1. Although the notice of automatic resignation charges appellant with being absent without leave for the period of March 11 through March 29, 2002, the parties stipulated that appellant would only be charged with being absent without leave for March 11, 12, 13, 14, and 15, 2002.

2. All dates are 2002 unless otherwise indicated.