DPA Case Number 02-R-0062 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: December 24, 2002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 9:00 a.m. on August 15, 2002, at Sacramento, California. A second day of hearing was held on November 20, 2002.

Appellant was present and was represented by John A. Alexander, Labor Relations Representative, California State Employees Association (CSEA).

Daphne T. Lee, Staff Counsel, represented the Department of Health Services (DHS), 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 13, 2002, for being absent without approved leave from March 14, 2002 through April 30, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on May 16, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleges she should be reinstated because she will ill during the period of March 14, 2002 through April 30, 2002; 1 her supervisor approved her time off; and she is ready, able, and willing to return to work.

She also argues that respondent is prohibited from automatically resigning her because it knew she had a serious illness, and she should have been placed on leave pursuant to the Family Medical Leave Act (FMLA) instead of being automatically resigned.

Appellant contends she was absent from work on March 14 through April 20 because she was ill and unable to work. She presented testimony and documentation from her primary care physician indicating she was being treated for stress and muscular, skeletal injuries for the period January 4 through March 29. He testified appellant was unable to work from March 13 through March 29, but that she could return to work on April 1.

Appellant also submitted testimony and documentation from a Clinical Psychologist. The Clinical Psychologist testified she saw appellant for treatment on February 28, March 5, March 21, and April 12. The Clinical Psychologist also testified she knew appellant was not working when she saw her on these dates and that she expressed concern to appellant that appellant not return to work too soon. Although the Clinical Psychologist originally anticipated appellant would return to work before May 1, appellant’s return was delayed by the death of a close friend and authority figure. On April 12, the Clinical Psychologist and appellant jointly developed a return to work plan whereby appellant would return to work May 1 on a part-time basis.

Appellant asserts her leave was approved because her supervisor knew she was ill and told her she did not have to bring notes verifying her illness until she returned to work.

Appellant testified that she talked to her supervisor on March 13 and told him she was unable to work until April 1. She testified he told her to bring in medical verification when she returned to work.

She also testified she talked with her supervisor again on March 29 after seeing the Clinical Psychologist on March 28. Appellant testified she told her supervisor she would be medically unable to work until May 1, when she could return on a part-time basis.

Appellant further testified she mailed her supervisor documents from physician and the Clinical Psychologist verifying her inability to work from March 13 to April 30. She did not testify as to when she mailed these documents.

The supervisor’s testimony contradicts appellant’s testimony.2 He denies talking to her on either March 13 or 29. He testified appellant left him a voicemail message at 9:06 p.m. on March 14 saying she would be off work until April 1 and saying something to the effect, “Will let you see the note when I return.” He also testified she left a voicemail message at 5:20 p.m. on April 1, a State holiday, saying she would not be to work until April 8. The supervisor further testified appellant notified him by voicemail at 6:02 p.m. on April 15 that she would not be returning until May 1. She also said something like, “My notes – I have them all.”

The supervisor testified he notified appellant by telephone on April 16 he needed the verifying doctor’s notes and suggested the notes be faxed. Thereafter, appellant left a voicemail message for her supervisor saying she would bring him the notes on April 17. She did not bring in the notes on April 17. The supervisor testified he did not receive any doctor’s notes verifying appellant’s inability to work for March 13 through April 30.

Appellant’s testimony is not persuasive. Appellant did not have an appointment with the Clinical Psychologist on March 28. The Clinical Psychologist testified that the plan for appellant to return to work part time on May 1 was not formulated until April 12. Therefore, appellant could not have informed her supervisor on March 29 that she was medically unable to work until May 1 when she was released to return to work part time.

In addition, appellant provided no verification to substantiate her assertion that she mailed medical verification of her inability to work to her supervisor prior to April 30. Neither her physician nor the Clinical Psychologist could testify with certainty when such documentation was provided to appellant. Appellant did not testify as to when she mailed the verification.

Respondent denied appellant leave because it did not receive the required medical documentation as requested on April 16.

Pursuant to Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Therefore, DPA makes no finding whether appellant should have been placed on FMLA leave rather than being automatically resigned.

To the extent appellant argues she had a valid reason for not obtaining leave because respondent failed to give her FMLA leave, this argument is without merit. Appellant presented no evidence that appellant asked for and was denied FMLA leave.

As discussed above, there is also insufficient evidence that appellant provided respondent with the required medical documentation of a serious illness for the period of March 13 through August 30 (see 29 C.F.R § 825.312 (b)).

Appellant testified she was ready, able, and willing to return to work. Neither of appellant’s treating health care professionals testified about her current ability to return to work. The Clinical Psychologist testified her diagnosis that appellant would be able to return to work on May 1 was predicated on continued treatment. The Clinical Psychologist also testified she was no longer treating the appellant and she had not treated her since April 12. Appellant presented no evidence she received additional treatment since April 12.

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“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 (supra) 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.

Appellant proved she had a valid reason for being absent March 13 through April 30. She was being actively treated during this period and her absence from work was sanctioned by her treating doctors.

Appellant failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave. Appellant’s testimony that she informed her supervisor on March 29 that she was medically unable to return to work until May 1 is not supported by the evidence. The Clinical Psychologist testified she only saw appellant on February 28, March 5, March 21, and April 12. The Clinical Psychologist testified she and appellant did not formulate the plan that appellant should return to work on May 1 until April 12. Therefore, appellant could not have informed her supervisor on March 29 she was able to return to work part-time on May 1 until after April 12.

Appellant’s bare assertion that she mailed respondent medical verification of her inability to work is an inadequate basis on which to find respondent had a satisfactory basis on which to grant appellant leave for the period March 14 through April 30.

Even if appellant was originally told she did not need to bring in medical substantiation for her absence until she returned to work, that direction was based on her supervisor’s belief she was returning to work on April 1. In addition, that direction was reversed on April 16 when the supervisor told appellant he needed the doctor’s notes and she said she would bring them in on April 17. Appellant did not bring the notes on April 17 or any other day.

Appellant failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave.

Appellant also failed to prove by a preponderance of the evidence she was ready, able, and willing to return to work. Although appellant asserted she was ready to return, her treating psychologist testified appellant’s return on May 1 was predicated on appellant’s receiving additional treatment. The Clinical Psychologist testified she had not treated appellant since April 12. Appellant offered no testimony regarding any additional treatment she may have received since April 12. Therefore, appellant has not met her burden of proof in this area.

WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective March 13, 2002, is denied.

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1. All dates refer to 2002 unless otherwise indicated.

2. The parties stipulated the supervisor could refer to his notes while he testified. These notes were not entered into evidence.