DPA Case Number 02-D-0034 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: February 23, 2004

By: Michael T. Navarro, Director

This first day of hearing in the above matter was held on May 2, 2002 in Sacramento, California at 9:00 a.m. The case was then taken off-calendar to allow appellant time to obtain medical records. It was next scheduled for hearing on October 6, 2003. This hearing was continued at respondent’s request. A second day of hearing was held on November 18, 2003 in Sacramento, California at 9:00 a.m. A third day of hearing was scheduled for December 11, 2003. This hearing date was cancelled at the parties’ request. The record remained opened until close of business on January 9, 2003 to allow the parties to submit stipulated evidence and closing briefs.

This case was heard by Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA). Appellant was present on all days of hearing and was represented on May 2, 2002 by Erin Koch-Goodman, Labor Relations Representative, California State Employees Association (CSEA). After this date, she was represented by Scherita V. Adams, Labor Relations Representative, CSEA.

Joan Branin, Labor Relations Counsel, DPA, represented the Department of Mental Health (DMH), respondent.

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

On March 15, 2003, respondent notified appellant she was being automatically resigned for being absent without approved leave from March 7 through March 15, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on March 26, 2002.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleges she should be reinstated because she had a valid reason for being absent, a valid reason for not obtaining leave, and she is ready, able, and willing to return to work.

Appellant testified she did not work on March 7 because she attended a regularly scheduled rehabilitation session for her right arm which she broke on February 5. Appellant did not provide medical documentation or testimony from any health care professional to substantiate her need to be absent for the entire day of March 7.

Appellant testified she did not work on March 8 through March 15 because she was required to stay home to care for her mother. Appellant’s mother lived with appellant since 1995. Appellant’s mother suffered from a mental disorder. Appellant’s mother fell on the evening of March 7. She went to the emergency room at Sutter Davis hospital. At hearing, appellant submitted a doctor’s certification of that visit. This certification indicated appellant’s mother was diagnosed with a “buttock contusion.” Appellant’s mother was told to ice the painful area, and to sit on a “doughnut” to help with pain while sitting. She was also prescribed Vicoden and told to follow up with Kaiser.

Appellant testified that on Saturday, March 9, her mother’s pain increased, she lacked bladder control and she had some bleeding. Appellant testified her mother was taken to the emergency room at Kaiser by ambulance. Appellant submitted a doctor’s certification of that visit at hearing. The certification indicated “...MRI shows a psoas and obdurator muscle strain. Take pain medicine as needed.” There was no indication that a follow-up visit was recommended or needed. There was no indication that appellant’s mother was unable to walk, feed herself, or dress. There was nothing in the medical evidence provided which indicated that appellant was required to remain at home to care for her mother.

Appellant also submitted a “Certification of Health Care Provider” that was completed on March 26. It indicated that appellant’s mother had a serious health condition which required assistance for “basic medical, hygiene, nutritional needs, safety or transportation.” It also indicated appellant’s mother required assistance for six weeks from March 9. On this document and at hearing, appellant represented her mother’s injury as an injury to her “siatic [sic] nerve and hip.” She characterized the care she needed to provide to her mother as “life sustaining care.”

There was no evidence that appellant’s mother’s mental condition had deteriorated or that she sought medical attention for her mental condition during the period March 7 through March 15. There was no medical evidence that appellant’s mother was in any way mentally incapacitated during the time at issue. No physician or other medical personnel were called to testify.

A. Appellant’s Arguments

Appellant contended she was granted leave for March 7 because she had previously advised her supervisor she needed to be absent that day. She contended she should have been granted leave for March 8 through March 15 because she called each day to report she would not be at work. She argued that her daily calls to her supervisor were all that should have been required of her in order to obtain leave. She further argued that respondent’s requirement that she bring in medical verification of her need to be absent from work violated Section 8.2 (E) of the Memorandum of Understanding (MOU) between the State and CSEA in effect beginning January 31, 2002. That section read:

“E. An employee may be required to provide a physician’s or licensed practitioner’s verification of sick leave when:

1. The employee has a demonstrable pattern of sick leave abuse; or

2. The supervisor has good reason to believe the absence was for an unauthorized reason. A supervisor has good reason if a prudent person would also believe the absence was for an unauthorized reason.”

Finally, appellant also argued that she agreed to bring in medical substantiation of her need to be absent, but, although she put forth diligent effort, she was unable to obtain such medical substantiation from Kaiser prior to her automatic resignation.

B. Appellant’s History of Absence and Respondent’s Requirements for Obtaining Leave

Appellant’s supervisor believed appellant’s absenteeism was becoming a performance issue.

Appellant was absent from January 28 to February 14. Although the supervisor told appellant to bring in medical substantiation for this absence, appellant never provided this documentation.

Appellant called in sick on February 5. She reported she could not work because she had a fever and bronchitis. On February 7 she called in sick again. She reported she could not work because she had broken her arm playing basketball on February 5. Appellant returned to work on February 14. She worked approximately three days and then was absent again.

Shortly thereafter, the supervisor informed appellant she was to provide medical substantiation of her inability to work. Appellant replied by e-mail. She told her supervisor she was “digging [herself] a tremendous hole.” Appellant also told her supervisor she could not be “AWOL” because she had called in every day. Appellant also accused her supervisor of inappropriate conduct.

On February 19, DMH’s Personnel Officer, advised appellant that failure to provide medical substantiation for an absence could be construed as absence without leave, even if appellant called in every day of her absence. The supervisor sent appellant a letter on February 25 notifying her that she needed to submit written medical substantiation for her absence beginning February 20. The supervisor informed appellant that if she did not provide such substantiation by February 25, she would be considered absent without leave pursuant to Government Code section 19996.2. The supervisor attached a copy of the Government Code section.

Appellant faxed medical substantiation to respondent on February 27. Appellant returned to work on March 4.

C. Absences on March 7 Through March 15 and Surrounding Circumstances

On March 6, 2003, the supervisor informed appellant she needed to bring medical substantiation of her need to be absent the entire day of March 7. Appellant was to bring the substantiation when she returned to work on March 8. Appellant did not return to work on March 8. She never provided substantiation to respondent regarding her need to be absent any portion of the day on March 7.

On March 8 appellant informed her supervisor she would not be at work because her mother fell the evening of March 7. Appellant told her supervisor she needed to arrange for a walker. Appellant also told her supervisor she thought she would be at work on Monday, March 11. Appellant testified her supervisor told her to bring in medical substantiation of her mother’s illness when she returned to work.

Appellant did not come to work on March 11. She told her supervisor she would not be at work because she needed to take care of her mother. Appellant also informed her supervisor she did not want to use Family and Medical Leave Act (FMLA) leave or other disability leave. Appellant asked to be put on catastrophic leave. According to testimony by both the supervisor and appellant, the supervisor told appellant she needed to bring in medical verification of her need to be absent from work to care for her mother.

Appellant did not come to work on March 12. She left her supervisor a message saying she needed to stay home to care for her mother. The supervisor and Associate Personnel Analyst called appellant that afternoon. They told appellant she needed to provide a doctor’s certification stating the nature of her mother’s illness or injury, the need for appellant to care for her mother and the dates on which appellant was required to care for her mother.

After talking with her supervisor and the Associate Personnel Analyst on March 12, appellant e-mailed her supervisor. She explained her need to be at home with her mother. She again requested catastrophic leave. She also told her supervisor she felt “very threatened” by her and the Associate Personnel Analyst’s call telling her to bring a “Doctor’s notice.” Appellant told her supervisor she was being treated like dirt at her job, that she had been railroaded, and that her supervisor needed to “Look at the whole picture.” Appellant said nothing about agreeing to bring in medical substantiation. Appellant said nothing about attempting to obtain medical substantiation.

Appellant did not come to work on March 13. She left a voicemail message for her supervisor saying she would not be in because she was taking care of her mother. Appellant said she would not be in until other arrangements were made for her mother’s care and that she had been unsuccessful in finding alternative care. Appellant said nothing about agreeing to bring in medical substantiation or that she was attempting to get the required medical substantiation or that she was having any trouble getting medical substantiation.

Appellant did not come to work on March 14. She again left a message for her supervisor saying she was staying home to care for her mother.

The Associate Personnel Analyst attempted to call appellant three times on March 14. When she was unsuccessful in reaching appellant, she e-mailed her at 3:00 p.m. In her e-mail, the Associate Personnel Analyst told appellant she must submit a physician’s verification for each day she was off either for personal sick leave or family sick leave by 10:00 a.m. on March 15. At 3:16 p.m., appellant responded to the Associate Personnel Analyst’s e-mail saying she had no control over when the doctor sent her this information and that the deadline was unreasonable. Appellant told the Associate Personnel Analyst she would give her the information when she got it and if she persisted in these “ridiculous demands,” she would hear from an attorney.

Appellant sent the Associate Personnel Analyst a second and third e-mail within the next 15 minutes because she believed she was unable to respond directly to her supervisor as well as the Associate Personnel Analyst. In these two additional e-mails appellant continued to reiterate that her supervisor was being unreasonable, that she had no control over her mother’s doctor, that respondent was acting illegally, and that she would have to contact her attorney. Appellant did not tell the Associate Personnel Analyst she was attempting to get the required documentation, that she was having trouble getting the documentation, or that her mother had an appointment at which time she would get the documentation.

Appellant did not come to work on March 15. She called her supervisor again and said she was staying home to take care of her mother. She made no mention of a doctor’s note, or of her mother having a doctor’s appointment, or that she or her mother was having difficulty getting either of these.

Appellant testified she continuously contacted Kaiser to attempt to obtain the medical verification required by respondent. Appellant testified she went to a Kaiser facility on one occasion in an attempt to obtain the required verification. Records submitted by both parties indicate that Kaiser was contacted either by respondent or her mother on March 14. Other dates of contact could not be substantiated. Neither appellant nor her mother submitted declarations. Appellant’s mother was not called to testify. No medical personnel from Kaiser were called to testify.

Appellant did not submit any medical verification to respondent at any time prior to hearing to substantiate her absences from March 7 through March 15. Therefore, respondent notified appellant she was automatically resigned on March 15.

Respondent sent appellant documents regarding the FMLA on February 4 and again on March 7. Respondent instructed appellant she had until March 28 to return the completed Family and Medical Leave Request and Certification of Health Care Provider forms in order to request FMLA leave. Respondent adamantly notified her supervisor on March 11 that she did not want to use FMLA leave. There was no evidence that appellant notified respondent that she changed her mind.

Appellant had the Certification of Health Care Provider form completed on March 26 because it supplied the information respondent had requested regarding appellant’s need to care for her mother. She did not present this certification to respondent. It was not completed until after appellant had been notified she was automatically resigned.

Appellant testified she was ready, able, and willing to return to work. Appellant presented no other information to corroborate her testimony.

 

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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 by a preponderance of the evidence that she had a valid reason for being absent March 7 through March 15. She presented no medical evidence that she went to physical therapy for any length of time on March 7.

Appellant’s testimony regarding the nature of her mother’s injury was inconsistent with the hearsay medical evidence provided at hearing. Appellant self diagnosed her mother’s injury as an injury to the sciatic nerve and hip while the written medical evidence diagnosed the injury as a “bruised buttock” and a “psoas and obdurator muscle strain.” Appellant testified she had to remain at home because her mother could not walk or feed herself and needed “life sustaining care.”

No testimony from any physician or other health care provider was offered to reconcile appellant’s testimony with the written medical verifications provided at hearing or to other corroborate appellant’s testimony regarding her mother’s incapacity. The March 26 Certification of Health Care Provider, does not provide clarification. It was made long after appellant’s initial injury and appellant’s dates of absence by a physician who may not have examined the patient at the time of injury or during appellant’s dates of absence. Although appellant had ample time to arrange for testimony from medical providers or other health care workers, she chose not to do so. Appellant’s mother was also not called to testify. Therefore, the preponderance of the evidence does not support appellant’s contention that she was absent on March 7 for rehabilitation of her arm or that she was absent March 8 through March 15 to provide her mother with “life sustaining care.”

Appellant also failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave. Although appellant testified she continuously attempted to obtain the required medical verifications before she was automatically resigned, the evidence presented does not support that testimony. Appellant’s testimony that she did not ask her mother for any medical documentation from her physicians immediately after her mother obtained emergency treatment is inconsistent with appellant’s testimony regarding her mother’s state of incapacity and inconceivable given the patient’s alleged medical history. Appellant’s failure to timely inform respondent of her efforts to obtain timely medical verification also does not support a finding that appellant had a valid reason for not obtaining leave.

Appellant did nothing to assure respondent that she intended to comply with its request for medical verification as allowed under the collective bargaining agreement. Appellant refused FMLA leave. Appellant failed to provide respondent with any medical substantiation for her absence prior to the hearing even though she was well aware that failure to do so could result in her being automatically resigned. Appellant had previously given respondent reason to question her credibility regarding her absences. Appellant had previously demonstrated a pattern of recent absenteeism. Appellant failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave.

Appellant’s unsupported and otherwise unexplained bare assertion that she is ready, able, and willing to return to work was also insufficient to support appellant’s return to work in this situation.

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that the appeal for reinstatement after automatic resignation effective March 15, 2002, is denied.

 

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1. All dates are to the year 2002, unless otherwise indicated.