Final Non-Precedential Decision Adopted: October 14, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on October 6, 2004, at Sacramento, California.

Appellant was present and was represented by Beth A. Huber, Attorney.

Navtej Bassi, Deputy Attorney, represented the Department of Transportation (CALTRANS), respondent.

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

On July 7, 2004, respondent notified appellant he was being automatically resigned effective June 29, 2004 for being absent without approved leave from June 30, 2004 through July 7, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on July 27, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued he had a valid reason for being absent because an illness, personal problems, and, in some instances, his supervisor precluded him from coming to work. He argued he had a valid reason for not obtaining leave because (1) an illness prevented him from following the requirements to obtain leave; (2) he otherwise followed “the spirit” of the leave restrictions he had been given; and, (3) his supervisor approved his absence from work. He also contended he was ready, able, and willing to return to work.

Appellant also argued that the automatic resignation should not have been taken because he was not absent five consecutive days.

Appellant testified he suffers from Restless Leg Syndrome (RLS), depression, and Attention Deficit Disorder (ADD). He testified the RLS causes sleeplessness. He takes medication on a regular basis. At times, he takes medication at night to help him sleep. When he takes the medication at night to help him sleep, he may not wake in time to report to work at his regularly scheduled start time.

Appellant testified he did not report to work on Wednesday, June 30 because he took medication to help him sleep and he did not wake up until approximately 2:00 p.m.

Appellant testified he did not report to work on Thursday, July 1 because he took medication to help him sleep and he did not wake up until approximately 1:45 p.m.

Appellant testified he came to work on Friday, July 2 at around 11:30 a.m. to pick up his paycheck. He further testified he remained at work until approximately 1:25 p.m. He testified he performed some “trivial work” by looking at his inbox and checking the status of one of his projects. He also picked up his paychecks, talked with a friend, cashed his paychecks, got something to eat, and paid off some debts he had incurred with his co-workers. He had intended to leave earlier than 1:25 p.m., but a conversation with his supervisor kept him later than he had anticipated. The supervisor testified appellant came into work on July 1 rather than July 2.

July 3 and 4 was a weekend and appellant was not required to report to work. July 5 was a State Holiday and appellant was not required to report to work.

Appellant testified he did not report to work on Tuesday, July 6 because he did not have transportation that would get him to work before 10 or 10:30 a.m. Appellant testified he believed his supervisor may send him home because he had done so on one prior occasion when appellant arrived late. When the supervisor did not return appellant’s call to approve his late arrival, appellant decided to stay at home.

Appellant testified he did not report to work on Wednesday, July 7 because he had a court ordered psychiatric examination and he had transportation difficulties.

On April 14, 2004 the supervisor issued a Letter of Warning to appellant because of his continuing unapproved absences. From October 8, 2003 through April 12, appellant had been absent without approval on 25 occasions. The supervisor reminded appellant that he was required to call him at his cell phone or office phone before 8:30 a.m. when he was going to be absent. He also instructed appellant to discuss with him any questions appellant had regarding the attendance policy.

On April 21, the supervisor met with appellant to discuss appellant’s unapproved absences and his absences without proper notification and substantiations. The supervisor subsequently sent appellant a memorandum on that date in which appellant was instructed to call his supervisor between 7 a.m. and 9 a.m. if he could not come to work. Appellant was also instructed to provide substantiation for the absence on the day of return to work. He was also reminded that his work hours were from 8:30 a.m. to 5:15 p.m.

During the April 21 discussion and also in the memorandum, appellant’s benefits and options were discussed. The supervisor provided appellant with a reasonable accommodation request form and information package; a leave of absence request form; an employee assistance program information package; and, a duty statement. Respondent notified appellant he did not qualify for leave under the Family Medical Leave Act (FMLA) because he had not worked the qualifying number of hours. There was no evidence respondent’s calculation was inaccurate.

Appellant indicated to his supervisor he did not plan to request reasonable accommodation. At hearing appellant indicated he did not want to request reasonable accommodation because he believed it would restrict his ability to obtain flexible work hours if he agreed to an established schedule. Appellant never submitted a written request for reasonable accommodation which provided the nature of the accommodation which would be needed for appellant to be able to perform the essential functions of his job.

In the April 21 memorandum, appellant was also asked to provide substantiation for absences for the prior two months and he was asked to provide a list of all medicines he was taking with a “write up” from his doctor providing the side affects that may impact his ability to perform his work. Appellant never provided the requested list of medications and supporting documentation from his doctor.

On April 22, the supervisor placed appellant on leave control. Appellant was instructed as follows:

“1. All absences due to illness for yourself or eligible family members must be substantiated in writing by a physician, and in the case of your illness, the substantiation must be obtained during the period of your illness and turned in to me when you report back to work or within 3 days, whichever is first. If you fail to provide proper substantiation, your request will be denied and the time reflected as AWOL. The substantiation must include the following:

a. General nature of illness.

b. Full period of your absence and the date you can return to work.

c. Date treated by the physician.

d. Work limitations (if any) and the duration.

e. If sick leave absence is for a family member, the relationship of the person who is ill and that your attendance was mandatory.

2. If unanticipated absences occur, you must personally contact me no later than 9:00 a.m. on the day of absence at my office phone (number) or my cell phone (number). If you fail to follow this procedure, your request for time off may be denied and the absence will be reflected as AWOL, and you will be considered insubordinate.

3. All future instance of tardiness will be reflected as AWOL.

4. All requests for use of leave other than sick leave (vacation, personal holiday, personal leave, etc) must be approved by me in advance. Failure to obtain my approval will result in denial of the request and time will be reflected as AWOL.”

Appellant did not call his supervisor or anyone else to report his absence on June 30. On July 1, appellant left a voicemail message for his supervisor sometime in the afternoon after he woke up. He testified he reported he was having problems with RLS and problems of a personal nature. He also testified he told his supervisor he had to go to court on Friday (July 2) and that on Friday he could provide him with proof of that.

On July 2, appellant did not call his supervisor to either report he would be late or that he was not coming into work. He called a clerical worker around 9:00 a.m. to see if his paycheck was available. When he came into work around 11:30 a.m., he spoke with his supervisor. The supervisor informed appellant that appellant’s money-borrowing activities were beginning to cause disruption in the workplace. There was no evidence that the supervisor and appellant discussed appellant’s failure to call him or appellant’s failure to appear prior to 11:30 a.m. Appellant testified he gave the supervisor a copy of a document from the Marin County Superior Court that indicated he was instructed to appear in court that day at 2:30 p.m. The supervisor testified he never got this document. Appellant testified his supervisor told him to “Go ahead and go” to the court appearance. The supervisor testified he did not give appellant this approval.

On July 6, appellant left a message for his supervisor around 7:00 a.m. saying he would be at work around 8:30 a.m. He left a second message for him around 7:50 a.m. saying he could not get to work until approximately 10:30 a.m. He asked his supervisor if he should come under those circumstances. The supervisor was on vacation that day and did not return appellant’s call.

On July 7, appellant did not call his supervisor or anyone else to report he was not coming to work or that he was coming to work late. Appellant testified he mentioned his July 7 doctor’s appointment to his supervisor either in his July 1 voicemail message or during his conversation with him on July 2. The supervisor testified appellant never notified him of this appointment and never got approval for leave.

Appellant testified he was ready, able, and willing to return to work. He testified that his medication for his RLS was now stabilized, his personal and legal problems were now behind him, and that he was also buying a car which would end his transportation problems.

 

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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 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.

Appellant proved by a preponderance of the evidence that he had a valid reason for being absent from work on the afternoon of July 2 when he was ordered to appear in Marin County Superior Court. This is the only instance in which appellant proved that he had a valid reason for being absent. Appellant did not call his doctor or any other medical professional to testify regarding his illness, his medications, the medications’ potential side effects and appellant’s instruction and/or prescription regarding how, when, and if to use medication to combat any potential sleeplessness. Appellant did not provide such information when respondent asked him to do so and he did not provide this information at hearing. Furthermore, Appellant bears the burden of arranging for reliable transportation to get to work. He knew he could not drive himself and he had the responsibility for arranging for reliable alternate transportation. Appellant’s explanation that he did not report for work because his supervisor did not call him and approve his late arrival is equally unpersuasive. His supervisor did send him home on one occasion when he was late, but this was when appellant did not call to report his tardiness. In addition, when appellant was put on leave control on April 22, he was informed all future instances of tardiness would be reflected as AWOL - not that he would be sent home. Appellant failed to prove he had a valid reason for being absent on all days except for that time appellant spent in connection with his July 2 mandated court appearance.

Appellant proved by a preponderance of the evidence that he had a valid reason for not taking steps to obtain additional leave for July 2 because he believed he had gotten leave from his supervisor. The evidence shows the supervisor was confused about whether appellant came into the office to pick up his paycheck on July 1 or 2. The evidence shows appellant came in on July 2, the same day as the mandated court appearance. Appellant cut a discussion with his supervisor short because he was in a hurry to get to court on time. The supervisor had previously approved vacation time for appellant to make a court appearance on June 29. Appellant testified that his supervisor told him to go ahead and go to his court appearance. Based on his supervisor’s confusion, his past record of approval for similar activity, his frustration with appellant’s attendance record, and the nature of the discussion he and appellant were having on July 2, appellant’s testimony is credited over his supervisor’s testimony in this instance. Appellant failed to bear his burden of proof on all other days to show he had a valid reason for not obtaining leave.

Appellant has worked with his RLS since at least 1995. His attendance problems have stemmed not only from his illness but also from legal and other personal problems. He testified he is ready, able and willing to return to work because his medication has stabilized his illness, and his transportation and other legal and personal problems are now behind him.

It is apparent that appellant and his supervisor are equally frustrated. Appellant is frustrated that his supervisor does not allow him a flexible work schedule and does not allow him to work at home. The supervisor is frustrated because he needs appellant at work to perform his supervision duties. Nonetheless, the evidence indicates that appellant has met his burden of proof in his statement that he is now ready, able, and willing to return to work. If appellant continues to be sporadically tardy, absent, or unable or unwilling to perform the essential functions of his job, respondent’s remedy lies in either a fitness for duty examination pursuant to Government Code section 19258.5 or a disciplinary action before the State Personnel Board.

 

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that the appeal for reinstatement after automatic resignation effective June 29, 2004, is granted. Respondent is ordered to reinstate appellant to his position within three weeks of receipt of this decision.

 

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1. All dates are 2004 unless otherwise indicated.