DPA Case Number 02-R-0086 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: November 14, 2002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 1:00 p.m. on September 25, 2002, at Sacramento, California.

Appellant was present and was represented by Dennis J. Lovejoy, Labor Relations Representative, California State Employees Association (CSEA).

David Beales, Staff Counsel III, represented the Department of General Services (DGS), 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 July 12, 2002, for being absent without approved leave from July 15, through July 22, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on July 31, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contends he should be reinstated because he was medically unable to work from July 15 through July 19; he had a valid reason for not obtaining leave; and, he is ready, able and willing to return to work.

Appellant has eight pins in his right ankle as a result of a car accident in December, 1999. He has chronic pain. Appellant disclosed this to his employer when he was hired.

Appellant twisted his ankle on Saturday, July 13, 2002,1 when he tripped on a sprinkler. His ankle began to swell and throb. It became difficult to walk. The ankle was swollen and painful on Sunday, July 14. Appellant iced, soaked, and elevated his ankle. Appellant did not seek medical treatment on Saturday or Sunday.

Appellant’s ankle was still swollen and painful on Monday, July 15. He did not work on this day. Appellant did not get medical treatment on July 15.

Appellant’s ankle was still swollen and painful on Tuesday, July 16. He did not work on this day. Appellant called Kaiser to get a doctor’s appointment. He was unable to get an appointment to see a doctor until Tuesday, July 23. He explained his injury to a health care professional on the telephone. Based on appellant’s July 16 explanation, Kaiser faxed appellant a “Visit Verification/Family Leave Health Care Provider Certification” (hereinafter referred to as a “certification form”) indicating appellant could not work from July 15 through July 17. Although appellant could not recall the exact date he received this fax, he testified he had this note in his possession on Thursday, July 18.

Appellant’s ankle was still painful on Wednesday, July 17. He did not work on this day. He went to the emergency room where he was seen by a nurse. Based on examination and symptoms described by the appellant, the nurse diagnosed appellant’s injury as a “twisting injury” to his ankle with symptoms lasting “3 days.”

The nurse gave appellant a copy of a “Medical Screening Examination” report. Appellant told the nurse he needed a doctor’s verification of his inability to work. Appellant testified that emergency room personnel told him they would send a message to his doctor asking the doctor to send verification of his inability to work. Appellant subsequently lost the original copy of the Medical Screening Examination report he was given by the nurse on July 17.

Appellant testified his ankle was still painful on Thursday, July 18. He did not work on this day. He did not get medical treatment on this day.

Appellant testified he still could not stand on his leg and foot for a long period of time, and that he still walked with difficulty on Friday, July 19. He did not work on this day. He did not get medical treatment on this day.

Appellant did not report to work on Monday, July 22. He notified his supervisor he was going to Kaiser to obtain medical verification of his inability to work. Appellant did not see a doctor on this day. Appellant did not get the medical verification documents he needed on this day.

Appellant went to the emergency room on the morning of Wednesday, July 23. Based on his statements, he obtained a certification form that said he was unable to work from July 18 through July 23.

Appellant also kept his doctor’s appointment on July 23. His doctor diagnosed appellant with a right ankle strain and released appellant to return to work on July 24. The doctor also recorded that appellant stated he could not work from July 15 through July 23.

Appellant proved he had a valid reason for being absent from July 15 through July 17. Appellant’s testimony that he injured his ankle and that it was painful and swollen for this time period is credible. In this situation it is reasonable to believe that appellant tried to self-treat his chronic injury for a short time before seeking treatment. Appellant’s testimony regarding his inability to work during this period is supported by the health care professional who found appellant’s description of his injury credible enough to provide him with a note for July 15 through July 17 saying he was unable to work and by the emergency room nurse who examined him and evaluated his symptoms on July 17.

Appellant failed to prove, however, that he was unable to work after July 17 because of his injury. The supervisor testified credibly that appellant told him on Thursday, July 18 that he had seen a doctor and he was “off until Monday.” The supervisor also testified appellant called in on Friday, July 19 when he “didn’t have to” because the supervisor already knew appellant would not be in on Friday. The evidence showed appellant did not have a note on July 18 that excused him until July 22. Appellant failed to provide any reliable, properly authenticated, timely documentation or testimony from any health care professional or any other person regarding the condition of his ankle or his inability to work after July 17. On July 17, the emergency room nurse did not indicate any reason or residual symptoms which would require or justify appellant’s being off work on July 17.

Appellant did not seek further medical treatment on July 18, 19, 20, 21, or 22. He had to go to Kaiser on July 22 to get medical documentation of his inability to work after July 17 because he had not seen or communicated with a health care professional since July 17. He knew he could go to the emergency room for treatment and to get medical documentation. He did not do so on these days. Appellant failed to prove he was medically unable to work from July 18 through 22.

Appellant proved he had a valid reason for not reporting to work on July 15, 16 and 17, but he did not prove he had a valid reason for being absent on July 18, 19 and 22.

Appellant contends he should have been granted leave because respondent had no basis on which to require him to bring a doctor’s note and because he attempted to comply with respondent’s requirements for obtaining leave.

Appellant argued that section 8.2 (E) of the January 31, 2002, through July 2, 2003, collective bargaining agreement between CSEA and the State prohibited respondent from requiring him to bring a doctor’s verification of his illness. Section 8.2 (E) states:

“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 had 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.”

Appellant argued he did not have a demonstrable pattern of sick leave abuse and that his supervisor had no opinion whether or not appellant’s absence was for an authorized reason. Therefore, appellant contended he should not have been required to get medical verification and his absence should have been approved. This argument is without merit.

Respondent presented uncontroverted evidence appellant had been docked for six consecutive months for a total of 167 hours because he was absent. This represents approximately one month of work time. Respondent had ample reason to believe appellant may be abusing sick leave and it had ample reason to require appellant to bring verification of his illness.

Appellant also contends he had a valid reason for not obtaining leave because he called his supervisor each day and he attempted to comply with his supervisor’s instructions to provide medical verification.

It is undisputed appellant timely called his supervisor each day to notify him he would not be coming to work. It was also undisputed that on some days he called his supervisor more than once to discuss his absence.

Although the content of the morning conversations between appellant and his supervisor was disputed, the crux of this matter turns on what documentation appellant was told he needed to provide to obtain leave and when he was told about these requirements.

At the time of his absence on July 15, appellant had not been placed on what his second level supervisor termed “a doctor’s note.” Appellant had not been notified he would be required to see a doctor on the first day he was absent or that he was required to bring in an original doctor’s verification that he was unable to work for the first two days he was not at work.

The supervisor testified that when he became appellant’s supervisor on May 8, he advised appellant “to get a Doc. note if he was off sick so he could have a paper trail too be on the safe side [sic].”

The supervisor also “advised” the employees he supervised, “If you’re off three days make sure you get a doctor’s note, go to the doctor’s office.” Appellant therefore reasonably believed he was not required to bring in a doctor’s note until he was off three days.

On July 15, when appellant called his supervisor to notify him he would not be coming to work, the supervisor told appellant “to bring a Doc.note [sic].” This instruction was contrary to the supervisor’s previous statement that a doctor’s note was not required until after three days.

On July 16 and 17, the supervisor again advised appellant to get a doctor’s note. On these two days, however, the supervisor added the requirement the note should not be a note that indicated “he [appellant] stated he was sick.” The supervisor did not inform appellant he was revoking his previous advise that appellant was to go to the doctor’s office after three days. There was no evidence that appellant was told what the note had to include or that it had to be an original document. Under pressure by respondent’s counsel, the supervisor testified he told appellant on May 8 to make sure the note said why he was sick. The supervisor testified he recorded his conversation with appellant on May 8. His record did not reflect he told appellant to make sure the doctor’s note said why he was sick. Therefore, the supervisor’s testimony that he told appellant to make sure the note said why he was sick is unreliable. There is no dispute appellant was to provide the required doctor’s verification at the time he returned to work.

After the supervisor advised appellant on July 16, he would not accept a doctor’s note that verified appellant’s illness based on his own statements, appellant attempted to get a doctor’s appointment. He was unable to get an appointment until July 23. When he could not get an appointment, appellant attempted to get the required doctor’s note by talking with a health care professional by telephone and having the document faxed to his home. It is unclear exactly when appellant finally received the faxed July 16 certification form but appellant testified he told his supervisor he had the document on July 18.

On the third day of appellant’s absence, July 17, appellant went to the emergency room. He was seen by a nurse who, after some examination and questioning of appellant, diagnosed him as having an injured ankle with symptoms lasting three days. The note indicated appellant needs a “work excuse.” Appellant testified emergency room personnel told him they would forward this request to a doctor who would send the required certification he was unable to work.

Appellant read the information on the Medical Screening Report to his supervisor on July 17 while he was in the emergency room. The supervisor responded by instructing appellant to bring in the note. Appellant believed his supervisor would accept this note to verify his absence for July 15 through July 17.

On July 18, appellant called his supervisor and told him he had seen a doctor and he was unable to work until Monday, July 22. Appellant also told his supervisor he would bring in a note on Monday “with the reason for being sick.” On July 19, appellant called his supervisor again and repeated he would bring in a note on July 22. The supervisor simply repeated to appellant he needed to bring in a doctor’s note.

On July 22, appellant called his supervisor and told him he would be in late that day because he was going to Kaiser to get the required medical documentation. Appellant went to Kaiser to obtain a copy of the lost July 17 medical screening report, and documentation he was unable to work on July 18 and 19. The supervisor did not object to appellant’s course of action.

When appellant could not obtain the required documentation on July 22, he called both the supervisor and the second line supervisor. Neither supervisor told appellant he would be automatically resigned if he did not report to work or provide the required medical information on this date. On July 22, the second line supervisor sent appellant’s supervisor a memorandum recommending appellant immediately be put “on a doctors [sic] note” because he was showing a continuous pattern of sick and vacation abuse. By this time, however, the supervisor had already decided to resign appellant because he determined appellant did not provide adequate medical documentation within five days.2

Appellant got a note based on his statements certifying he was unable to work from July 18 through 23 on July 23 when he went to the emergency room. After his visit to the emergency room, appellant took the faxed copy of the July 16 Kaiser certification form and a copy of the July 23 emergency room certification form to his supervisor.

The supervisor would not accept the July 16 verification because it was a faxed copy, it did not provide a diagnosis, and it was based on appellant’s statement that he was ill and unable to work July 15 through July 17. The supervisor did not recall seeing the July 23 certification form.

Appellant told his supervisor he had a doctor’s appointment that day and he would get the required additional information to verify his illness for all days he was absent. The supervisor told appellant to come back with a valid note. The supervisor did not tell appellant he had already made the decision to automatically resign him on July 22. After his doctor’s appointment on Tuesday, July 23, appellant called his supervisor. His supervisor told him he had been automatically resigned.

Appellant obtained the original copy of the July 16 Kaiser certification form, and a second copy of the July 17 Medical Screening Examination sometime after July 24. He presented these documents along with copies of the two July 23 Kaiser certification forms at his Coleman hearing. Respondent would not accept these documents and would not grant appellant leave for July 15 through July 22.

Appellant had a valid reason for not obtaining leave for the period of July 15, 16, and 17. The evidence supports appellant’s assertion he attempted to comply with his supervisor’s instructions as he understood them on these days. The evidence shows appellant did not receive clear, unambiguous instruction regarding what information was required in a doctor’s note in order to obtain leave. The supervisor testified he advised the employees he supervised to bring in the doctor’s note “if you’re off three days.” This instruction is inconsistent with the supervisor’s July 16 and 17 requirement that the doctor’s note could not be based on appellant’s statements. In order to avoid a diagnosis based on appellant’s statement, appellant would have been required to be seen by a doctor on his first day of absence. This requirement was not conveyed to appellant. There was no evidence that appellant was ever told a faxed copy of a medical note was unacceptable. There was no reliable evidence appellant was ever told what a doctor’s verification had to include.

From July 15 through July 17, appellant tried to comply with his supervisor’s instructions as they were conveyed to him. Under the circumstances of this case, appellant proved he had a valid reason for not obtaining leave July 15 through July 17.

Appellant did not, however, prove he had a valid reason for not obtaining leave for July 18 through July 22.

By July 18, appellant had been absent four days. He knew his supervisor expected him to be seen by a health care professional to verify he was unable to work on the day he reported he could not work. He also knew by this time that a call to a health care professional resulted in a verification based only on his own statements. By this time, appellant knew this was unacceptable. Appellant also knew that he could be seen and obtain the required verification from the emergency room. Appellant did not attempt to obtain medical treatment or evaluation on July 18, 19, 20, 21, or 22.

Although he told his supervisor on July 18 that he had seen a doctor and he was unable to work until Monday, July 22, appellant failed to provide any evidence to support that he had authorization to be absent on July 18 and 19 prior to July 23.

Appellant’s supervisor gave him ample time to obtain adequate medical documentation for these days. Appellant failed to comply with his supervisor’s instructions. He did not have a valid reason for not obtaining leave for July 18 through July 22.

Appellant testified he is ready, able and willing to return to work. Appellant’s testimony was not rebutted.

 

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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 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 by a preponderance of the evidence he had a valid reason for being absent on July 15, 16, and 17. His testimony that he hurt his ankle and was unable to work on these days was corroborated by two Kaiser health care providers based on appellant’s description of his condition and on physical examination. Appellant failed to prove by a preponderance of the evidence he had a valid reason for being absent July 18, 19, and 22. He failed to seek medical attention on these days. When he was seen on July 17, the medical examiner noted the symptoms lasted three days and did not indicate there was any residual problem which would provide justification for appellant’s absence on these days. Appellant told his supervisor on July 18 had seen a doctor and he was unable to work until July 22. He had no medical basis at this time to substantiate this time off work. Appellant failed to provide properly authenticated medical documents or medical testimony to serve as a reliable basis on which to find appellant had a valid medical reason for being off work on July 18, 19, and 22. Therefore, appellant proved he had a valid reason for being absent for three of the five days required by Government Code section 19996.2, to automatically resign an employee.

Appellant also proved by a preponderance of the evidence he had a valid reason for not obtaining leave for July 15, 16, and 17. Appellant was not on medical restriction at this time. The evidence shows appellant did not receive clear, consistent, unambiguous instructions regarding what medical information was needed and when it was required. Nonetheless, as his supervisor gradually notified him of increased requirements to obtain leave, appellant attempted to comply with these requirements for the period of July 15 through July 17. Although appellant’s decision to call a doctor instead of going to the emergency room on July 16 may have been poor judgment, it is consistent with his report to his supervisor that he had car trouble and that he believed the note was not required until he was absent three days. Appellant’s poor judgment is not so egregious as to invalidate his other conscientious efforts. He kept his supervisor consistently informed of his efforts to comply. His supervisor gave him no reason to believe his efforts were unsatisfactory. Based on appellant’s efforts to comply and the inconsistency and ambiguity of respondent’s instruction, appellant had a valid reason for not obtaining leave on July 15, 16, and 17.

However, appellant did not prove by a preponderance of the evidence he had a valid reason for not obtaining leave for July 18, 19, and 22. By July 18, his fourth day of absence, he knew he needed to be seen by a medical professional on the day of his absence in order to obtain medical verification of his inability to work. His supervisor gave him every opportunity to obtain the required medical verification. Appellant did not seek medical treatment on July 18, 19 or 22. He did not provide any reason why he did not go to the emergency room to obtain the required documentation in a timely fashion. Appellant failed to provide a valid reason for not complying with his supervisor’s instructions at this time. He did not have a valid reason for not obtaining leave on July 18, 19, and 22.

Based on appellant’s unrefuted testimony, he is currently ready, able, and willing to return to work.

Appellant had a valid reason for being absent on three of the five statutorily-required days he was charged with being absent without leave. He also had a valid reason for not obtaining leave for three of the statutorily-required five days. He is ready, able and willing to return to work. Accordingly, appellant should be mandatorily reinstated to his prior position as a janitor in the Sacramento office.

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that the appeal for reinstatement after automatic resignation effective August 12, 2002, is granted.

 

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1. All dates refer to 2002 unless otherwise indicated.

2. The supervisor testified he believed he had to automatically resign appellant for being absent for five days without bringing in a doctor’s note. He testified he based this belief on his own personal experience when he did not provide adequate documentation.