Final Non-Precedential Decision Adopted: July 12, 2002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 3:10 p.m. on June 12, 2002, at Riverside, California.

Appellant was present and was represented by Armond G. Keith, Labor Relations Representative, California State Employees Association (CSEA).

Brian Branine, Senior Tax Counsel, represented the State Board of Equalization (BOE), 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 April 19, 2002, for being absent without approved leave from March 26, 2002 through April 5, 2002.1 CSEA filed a request (appeal) for reinstatement after automatic resignation on April 15, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.

By letter dated April 5, 2002, respondent notified appellant that effective April 20, 2002, he would be considered to have automatically resigned retroactive to March 26, 2002.2 Thereafter, CSEA filed appellant’s appeal for reinstatement with DPA. The appeal was a form appeal and gave no reason for the appeal.

At hearing appellant claimed that he should be reinstated because he had a valid reason for being absent and because he complied with respondent’s absence reporting requirements.

Prior to the taking of evidence, appellant made a motion to dismiss the automatic resignation. The motion was based on appellant’s allegation that the Coleman hearing was not held before a reasonably impartial party. Appellant presented no evidence or authority that supported this motion. This motion was denied.

Respondent admitted that he was absent from work on the days he was charged as being absent without leave. He claims he was ill. Appellant testified that around March 26, 2002,3 he started to feel pain when urinating and he had soreness in the kidney area. He stated he began “feeling bad” and thought that he might have “hepatitis C.” He thought he might have contracted the hepatitis C from an aunt who he had lived with and who was infected with the disease. He lived with his aunt for three years ending late last year.

Appellant testified he went to the doctor on March 26. He told the doctor he thought he might have hepatitis C. The doctor conducted tests and told appellant that he should come back in a week. The doctor gave appellant a prescription for medication. Appellant could not remember the name of the medication.

Appellant presented a note from a physician with the Pacific Alliance Medical Group, which states that appellant was seen on March 26, and that appellant, “has a follow up 1 week.” This note also states that appellant was able to return to work on March 28. Appellant testified that the doctor told him that if “he felt well enough” he could go back to work on March 28. The doctor was not called to authenticate the note or to testify regarding appellant’s illness or ability to work.

Appellant testified that the medication he was given made him nauseous. He quit taking it on March 27.

He called the doctor on March 28. He did not go to the doctor on this day.

Appellant testified that he saw a doctor again on March 29. He believes he saw the same physician. He did not submit any medical verification.

Appellant also testified that when he believed he had hepatitis C, he experienced mental anguish. He was scared and upset that his aunt exposed him to the disease without telling him until she moved out. He also had concerns that he could infect his coworkers.

Appellant did not recall the exact date that he received the results of the March 26 tests. He believed that it was within a two-week period after taking the tests. The tests showed that appellant did not have hepatitis C. He testified that he was “elated” when he got the news and went to Black Angus “and had a large meal.”

Appellant testified that he continued to experience health problems after March 29. These health problems resulted in disruption of his sleeping and eating patterns and rapid weight loss.

He testified that he first contemplated going back to work on April 3. However, because of the rapid weight loss and lack of sleep, he felt that he “wasn’t in the physical shape he needed to be in order to go to work.” He testified that he continued to have “no energy or enthusiasm for anything.”

Appellant testified that he saw a another physician sometime during the week of April 2. He testified that additional blood tests were done during this period and that the doctor told him that his white cells were low. Appellant claims that the doctor told him to stay home until he got the results of his tests.

Appellant introduced a note on Pacific Alliance Medical Group letterhead that indicates he was able to return to work on April 11, and that he was seen in the office on April 8 and April 9. The remarks are otherwise illegible. The doctor’s last name is also illegible. The note is dated June 10. No physician was called to authenticate this document or to testify regarding appellant’s illness or ability to work during this period.

Appellant’s testimony, alone, is not a reliable basis on which to ground a finding that appellant had good reason to be absent during this period. No medical personnel were called to authenticate the one legible doctor’s note he provided or to otherwise testify regarding appellant’s illness or ability to work. Appellant presented no medical verification whatsoever for his absences for March 28, 29 or April 2, 3, 4, and 5. Therefore, appellant did not, by a preponderance of the evidence, prove that he had a valid reason for being absent.

On or about August 8, 2001, the Supervising Tax Auditor gave appellant a memorandum outlining the reporting procedure that must be followed when appellant was not going to come to work. The Supervising Tax Auditor informed appellant that leaving a daily voicemail message on his voicemail system was not considered an approved leave of absence. The Supervising Tax Auditor told appellant that when he was going to be absent, appellant was to contact the Supervising Tax Auditor daily between 8 and 8:30 a.m. to request approval for his absence. If the Supervising Tax Auditor or the Van Nuys District Principal Auditor were unavailable, appellant was to get approval from another supervisor. The Supervising Tax Auditor also notified appellant that failure to obtain approved leave “will be considered as AWOL, . . . which can result in automatic separation from State Service . . . .” Appellant testified that he received this August 8, 2001 memorandum.

On or about November 15, 2001, the Supervising Tax Auditor again sent appellant notice advising him that leaving a daily voicemail on his voicemail system for absence from work was not considered an approved leave of absence. The Supervising Tax Auditor again notified appellant that failure to obtain approved leave “will be considered AWOL, . . . which can result in automatic separation from State service . . . .” Appellant testified that he received this November 15, 2001 letter.

Appellant testified that he talked with the Van Nuys District Principal Auditor on March 26. Appellant claims that he explained that he may have contracted hepatitis C, that he was going to the doctor, and that he would speak with the Van Nuys District Principal Auditor that afternoon or leave a message. Appellant claims that the Van Nuys District Principal Auditor told him he didn’t want to hear the details of the absence – that he was just to bring in a doctor’s note to substantiate the absence “when he came in.” Appellant did call the Van Nuys District Principal Auditor that afternoon. He left a voicemail message saying he would provide a doctor’s note verifying his absence and he asked to meet with the Van Nuys District Principal Auditor personally when he came in the next day.

Appellant did not come to work the next day, March 27. He testified that he called and talked with the Van Nuys District Principal Auditor. Appellant claims that he told the Van Nuys District Principal Auditor that he would just leave messages regarding his absences because he had to go to the doctor “very early.” There was no testimony regarding the Van Nuys District Principal Auditor’s response.

Appellant testified that he left voicemail messages for the Van Nuys District Principal Auditor regarding his absences on March 28 and 29.

Appellant testified that he “believed” he called in on April 2, 3, 4, and 5. He was unsure if he spoke to a supervisor or left a message.

The Van Nuys District Principal Auditor testified that he kept contemporaneous records of appellant’s calls. These records reflect that appellant called the Van Nuys District Principal Auditor and spoke with him personally on March 26 and 28, and on April 2. Appellant left voicemail messages for the Van Nuys District Principal Auditor on March 27 at 9:18 a.m.;

March 28 at 8:24 a.m.; March 29 at 7:43 a.m.; and, on April 3 at 7:34 a.m. There are no records of calls or messages after April 3.

Appellant testified he did not talk to his supervisor or leave messages for him because his supervisor had become “unreasonable in granting requests.” Appellant testified there was a “level of belligerence” between himself, his supervisor and the Supervising Tax Auditor. He preferred to deal with the Van Nuys District Principal Auditor because he felt he would “tell the truth.” Appellant was put under another supervisor on April 4. Appellant could not recall whether or not he ever attempted to contact his new supervisor.

Appellant did not comply with the procedures required for him to obtain approved leave. Appellant did not provide any documentation verifying any illness excusing him from work beyond March 27. He did not present any documentation to his employer prior to the time he was automatically resigned. He did not call respondent on a daily basis. He often did not call between 8 and 8:30 a.m. as instructed and he often left voicemail messages instead of speaking directly with a supervisor. Appellant’s testimony implying that the Van Nuys District Principal Auditor agreed to let him leave voicemail messages instead of speaking directly with a supervisor is not credible in light of the specific directions that were repeated to appellant on numerous occasions. Although appellant argues that he complied with the provisions of the relevant collective bargaining agreement between the State and CSEA, there is nothing in the collective bargaining agreement that supercedes or prevents respondent from requiring appellant to present doctor’s verification of his absence and to call respondent as ordered.

Appellant was told that his leave was unapproved until he provided doctor’s verification. Appellant testified he understood this requirement. Appellant’s failure to return to work did not excuse this obligation. Appellant never provided respondent with a doctor’s verification of his absences. Therefore, respondent did not excuse appellant’s leave.

Appellant testified that he attempted to return to work on April 12 before he received a copy of his notice that he had been automatically resigned. There was no testimony that addressed whether appellant was ready, able, and willing to work as of the date of the hearing.

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with 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 case, appellant failed to prove that he had a satisfactory reason for being absent. Appellant’s own testimony was insufficient to establish by a preponderance of the evidence that he had adequate reason to be absent. He did not place on the record testimony from any medical doctor or other healthcare professional to substantiate that he was ill and unable to work. At the hearing, appellant was made aware that the medical documentation he presented could not be used by the ALJ to make a decision regarding his illness or absence from work. Appellant presented no medical documentation whatsoever regarding any illness or excuse for his absence for March 28, 29, April 2, 3, 4, or 5. Therefore, appellant did not prove by a preponderance of the evidence that he had a valid reason for being absent.

Appellant’s testimony also failed to establish by a preponderance of the evidence that he had a satisfactory reason for not having obtained leave. Respondent notified appellant on numerous occasions of the procedure he was to follow in order to obtain leave approval. Appellant did not take these instructions seriously. He made little or no effort to comply. He called when he wanted, whom he wanted, and if he wanted. Appellant’s explanation that the Van Nuys District Principal Auditor impliedly approved of his leaving voicemail messages and not providing doctor’s verification is not credible in light of respondent’s numerous warnings and notices to appellant that failure to comply with the procedures would result in automatic separation. Appellant acknowledged he knew he had to present a doctor’s verification of his illness and absence in order to get approved leave. He did not present the required verification either before he returned to work or at any other time.

Respondent had no verifiable basis on which to grant leave. Therefore, respondent was justified in denying leave.

Assuming arguendo that appellant proved both a satisfactory reason for being absent and for not having obtained leave, he did not present evidence sufficient to establish he is currently ready, able, and willing to work. He simply did not address this issue.

 

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that the appeal for reinstatement after automatic resignation effective close of business on April 19, 2002 is denied.

 

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1. The parties stipulated that the actual dates of the charged absence without leave are March 26, 27, 28, 29, April 2, 3, 4, and 5. April 1 was a State holiday and, therefore, not considered as a day of absence.

2. Respondent mailed the notice of automatic resignation to the wrong address. Appellant did not receive the notice until April 12, 2002 when appellant attempted to return to work. There were no allegations or evidence that this incorrect mailing affected appellant’s rights in this proceeding in any way.

3. All dates are in 2002 unless otherwise indicated.