Final Non-Precedential Decision Adopted: January 24, 2006

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 7, 2005 and October 5, 2005 at Sacramento, California. The record remained open through December 2, 2005, to allow filing of post-hearing briefs.

Appellant was present on all days of hearing and was represented by Jay Dyer, Staff Counsel, Service Employees International Union, Local 1000 (SEIU).

Terrence Ohler, 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.

On January 3, 2005, respondent notified appellant she was being automatically resigned effective close of business November 17, 2004, for being absent without approved leave from November 18, 2004 through December 31, 2004.1 SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on January 13, 2005. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she had a valid reason for being absent because she was medically unable to work. She contended she had a valid reason for not obtaining leave because she provided “everything” that respondent required to grant her leave. She contended she is ready, able and willing to return to work.

Appellant further argued that respondent failed to notify her of any potential leave under the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) and that respondent should have continued to carry her on “inactive pay status” or on an unpaid leave of absence instead of automatically resigning her. Such arguments regarding the legality of respondent’s decision to invoke the automatic resignation statute (Government Code section 19996.2) are beyond the scope of DPA’s jurisdiction. The parties were advised of this at hearing.

Appellant has a history of medical problems as a result of diabetes. Beginning in December 2003 she had multiple surgeries on her feet. She was off work intermittently because of these medical problems and at times performed light duty. Appellant’s last day at work was May 5.

Appellant claimed she was off work from November 18 through December 31 because of potential diabetes-related complications related to a November 22 operation to both of her feet. Appellant’s treating podiatrist and surgeon (podiatrist) performed surgery on appellant’s feet on November 22. The podiatrist authorized appellant to be off work from November 22, through January 22, 2005 for recuperative purposes in light of potential complication which could result from her diabetic condition.

Appellant argued she relied on her doctor to provide all information respondent requested. She contended all the information requested by respondent was provided by the doctor’s office.

Appellant testified she informed her supervisor approximately two weeks prior to November 22 that she was having surgery on her feet on November 22 and that she did not expect to return to work until the middle or end of January 2005. She left a voicemail message for her supervisor on November 29 saying she was going to the doctor to have stitches removed and she would call him back after the doctor’s appointment. Appellant never called the supervisor back on November 29.

On or about November 29, appellant contacted the Chief of Technical Operations Support Section in DHS’ Women, Infants & Children Supplemental Nutrition Branch. She inquired about getting catastrophic leave. The chief instructed appellant to contact the supervisor about the leave. Appellant never contacted the supervisor about catastrophic leave.

The supervisor sent appellant a letter on December 9 telling her he had no medical substantiation for her absence and she was to provide such substantiation by December 17. He informed her such substantiation had to include the general nature of her illness, the date she was seen by the physician, the specific dates she had been incapacitated, and her prognosis. The supervisor further informed appellant that failure to provide the required information would result in her being automatically resigned. After receiving the December 9 letter, appellant called the supervisor. She told him she could mail him the requested information but she could not personally deliver it because she could not drive. Appellant testified the supervisor told her that if she mailed it, “it would be too late.” On December 16, appellant called her doctor’s office and asked the receptionist to provide medical information to the supervisor. Appellant testified she asked the receptionist to send all medical information from October and November including reports that had been completed and submitted to the Employment Development Department (EDD) for Non-Industrial Disability Leave (NDI).

The receptionist testified she faxed the supervisor the following documents on December 16:

1. A copy of an Excuse Slip dated “12/16/04” signed as “[Podiatrist] DPM/sf,” which stated in relevant part: “[Appellant] is under my care. He/She is released to return to work on 1-22-05.” The receptionist authored the Excuse Slip and the “sf” indicated she signed it on the podiatrist’s behalf. The paper on which the Excuse Slip was copied also states, “To: [supervisor]” and lists the supervisor’s fax number. It also states, “From: [podiatrist]” and lists the medical office’s telephone number. The receptionist used the page on which the Excuse Slip was copied as a cover sheet and the first page for the remaining pages she testified she faxed to the supervisor on December 16.

2. A one-page EDD NDI form signed by the podiatrist and dated 11-22-04 which indicated appellant was last treated on 11-16-04 for bilateral foot problems and was anticipated to return to work on 1-22-05;

3. A one-page EDD NDI form signed by the podiatrist’s associate and dated 10/14/04 which indicated appellant was last treated on 10/11/04 for a problem on her right foot and was anticipated to return to work on 11-14-04;

4. An EDD doctor’s certificate signed by the podiatrist indicating appellant was undergoing a foot operation on 8-11-04 and was anticipated to return to work on 10-11-04;

5. An Excuse Slip signed by the podiatrist dated 6-30-04 which indicated appellant was seen in his office on that day and was unable to return to work because of foot ulcers for two weeks. This slip also indicated it was faxed to the supervisor at the same number listed on the December 16 Excuse Slip that it was from the podiatrist at the same office number as that on the December 16 slip; and

6. An Excuse Slip dated 6-22-04, signed by the podistrist that indicated appellant was unable to work from 5-10-04 to 6-30-04 because of a diabetic ulcer on her left foot.

The receptionist testified she did not speak with either appellant or the supervisor after December 16 regarding what had been faxed or received. The receptionist further testified, contrary to testimony from appellant that she was never asked to provide and never did provide copies to appellant of the information she faxed to the supervisor on December 16, 2005. The receptionist also testified appellant never asked her to send additional information to respondent.

The supervisor testified the only information respondent received on December 16 was the first faxed document - - the Excuse Slip dated 12-16-04. The supervisor further testified that although the Excuse Slip was faxed to him on December 16, he did not physically receive the slip until December 17.

On December 17, appellant left a message for the supervisor saying she would not be returning to work until Monday, January 24 “if everything went okay.”

The supervisor left appellant a voicemail message on December 22. He told her she needed to provide additional medical information consistent with the requirements outlined in the December 9 letter. He also informed her she needed to provide the information in a document that had the doctor’s original signature. He extended the time for receipt of the information to December 27. The supervisor also told appellant that failure to provide the information would result in her being absent without leave. Appellant called the supervisor back on December 22. She left him a voicemail message indicating that because the doctor’s office would not be open until Monday, December 27, the supervisor would not receive anything before that date. Appellant also stated that because she could not drive, the information would be mailed from the doctor’s office and would not be to the supervisor by December 27. She also questioned why the supervisor was requiring an original document when a faxed copy had previously been sufficient.

The supervisor called appellant and spoke to her on December 23. He again informed her she needed to provide an original document from a physician that provided the information referenced in the December 9 letter. He reiterated the information had to be provided by December 27.

On December 24, appellant called the supervisor and left a message again questioning why respondent was now requiring an original document instead of a faxed copy when respondent had previously accepted faxed documents. She also stated that the doctor would not tell respondent why she was under his care, the dates she was under the doctor’s care, or the nature of the illness. Appellant reiterated that she could not drive on Monday (December 27) and that she didn’t have a car even if she could drive. She also told the supervisor that she had the doctor fax documentation to him and she accused him of simply “giving [her] a hard time.” In response to appellant’s message, the supervisor called appellant on December 24 and left her a voicemail message. He again explained what medical documentation he needed by December 27. He also cited his right to receive such information pursuant to the collective bargaining agreement.2

On December 27, appellant left the supervisor two additional voicemail messages. In the first message, appellant told the supervisor that he had already received “substantial...documentation” which contained the only information the doctor was going to provide. She indicated he had been provided this information via fax from the doctor. She reiterated she could not drive and stated she didn’t know what the supervisor expected her to do or what he wanted. In a second message, appellant reiterated to the supervisor that the doctor was not going to give him a prognosis, that he had already been informed she would be off until January 22, and that he was not going to get any information regarding restrictions because the doctor didn’t have that information as yet. She stated she had given respondent all the information to which they were entitled under the “contract.”

The supervisor did not return appellant’s December 27 calls. Appellant did not contact her doctor to forward any additional information to respondent. Respondent did not receive any additional information regarding appellant’s absence between November 18 and December 31. On January 3, respondent notified appellant she was being automatically resigned.

Appellant testified she is ready, able, and willing to return to work. Appellant contacted the supervisor on January 5 and notified him she was able to return to work prior to January 22. By his time respondent had already sent the notice of automatic resignation.

Appellant’s physician testified his office had not treated appellant since December 6 and he was unable to verify her ability to return to work at the time of 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 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 proved she had a valid reason for not reporting to work. Her doctor testified he excused her from work to prevent complications after her foot surgery which could result from her diabetes.

Appellant failed to prove she had a valid reason for not obtaining leave. The ultimate responsibility for ensuring that the employer receives the required documentation rests with the absent employee. As early as December 9 respondent outlined what was required to obtain leave. The only action appellant took to ensure respondent obtained the required documentation was one call to her doctor’s office on December 16. She did not call the doctor’s office to see what was sent to respondent. She did not call her doctor’s office to request additional information be mailed or faxed to respondent. Even though she left numerous voicemail messages and had at least one conversation with the supervisor after December 16, she never asked him what he received from her doctor. She knew respondent was asserting it did not have all the required information at least as early as December 22. If, indeed, appellant knew exactly what the receptionist had faxed to the supervisor on December 16, it is reasonable that she would have referred him to the specific documentation that answered his questions regarding her prognosis, last treatment date, and nature of her condition. Such information is contained in the documents that the receptionist testified she faxed to the supervisor on December 16. However, while the receptionist credibly testified that she faxed such documents to the supervisor, the supervisor testified equally credibly that he only received the December 16 Excuse Slip signed by the receptionist on the podiatrist’s behalf which only indicated appellant was out until January 22. That document did not indicate appellant had been seen by the doctor, the dates appellant had been disabled or the reason for the disability. The supervisor testified that even the signature looked different from other Excuse Slips he customarily had received from the podiatrist. There was no evidence that all of the documents the receptionist faxed were in fact received by respondent.

Instead of exercising due diligence in obtaining and ensuring that respondent obtained the required information, appellant chose to question respondent’s authority to request such documentation and to inform respondent that it was not going to be provided certain information such as a prognosis and nature of injury which the collective bargaining agreement clearly permits. Appellant’s assertions are confusing. If appellant knew what documents had been faxed to the supervisor, appellant would have known that the information she was telling the supervisor he would not get had already have been provided. Such contested information had been provided to respondent by the podiatrist in the past, and appellant made her assertions that such information would not be provided without first contacting her physician.

Appellant’s contention that her inability to drive precluded her from providing the information in an original document signed by her physician also does not excuse appellant’s failure to obtain leave. First, she failed to take any steps to get the original medical document as requested. Second, she failed to follow through on her representation that she would have the doctor’s office mail the original even though it might not arrive on December 27; and third, while she was able to arrange transportation to her doctor’s office after her November 22 surgery on at least two occasions, there was no evidence she made any effort whatsoever to arrange transportation for herself to deliver the document or to have anyone else deliver the document. She was not totally incapacitated. She simply “could not drive” and did not have a car. If appellant could arrange for transportation in some situations, it is not unreasonable to anticipate that she should made the same effort in this situation where she had been warned that failure to provide the requested information may result in her automatic resignation. She made no effort absent one call to her physician on December 16 to ensure respondent received the required information.

Based on appellant’s failure to provide a valid reason for not obtaining leave, it is unnecessary to determine whether she is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Information System Technician effective close of business November 17, 2004, is denied.

 

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1. All dates are 2004 unless otherwise indicated.

2. Appellant is a member of State Bargaining Unit 1 which covers Professional, Administrative, Financial, and Staff Services employees. Section 8.2F of the July 3, 2003 through June 20, 2005 Agreement between the State of California and the California State Employees Association covering Bargaining Unit 1 provides in relevant part: “The department head or designee shall approve sick leave only after having ascertained that the absence is for an authorized reason and may require the employee to sumit substantiating evidence including, but not limited to, a physicians or licensed practitioner’s verification. The state recognizes the confidential nature of the relationship between the health care provider and the patient. However, such substantiation shall include, but not be limited to, the general nature of the employee’s illness or injury and prognosis (i.e. the anticipated length of the absence, any restrictions upon return to work that prevent the employee from performing the full range of his/her normal work assignment and anticipated future absences If the department head or designee does not consider the evidence adequate, the request for sick leave shall be disapproved. Upon request, a denial of sick leave shall be in writing stating the reason for denial.”