Final Non-Precedential Decision Adopted: April 14, 2006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 March 8, 2006, at Riverside, California.

Appellant, was present and was represented by Olga Hansen, Labor Relations Representative, Service Employees International Union (SEIU).

James E. Toomey, Jr., Attorney at Law, represented the State Compensation Insurance Fund (SCIF), respondent.

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

On November 16, 2005, respondent sent appellant written notice she was being automatically resigned effective December 2, 2005, for being absent without approved leave from October 31, 2005 through November 16, 2005. Olga Hansen, Labor Relations Representative, SEIU, filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on December 9, 2005. DPA received the appeal on December 13, 2005.

California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation only if the employee files a request (appeal) for reinstatement within fifteen (15) days after service of the written Notice of Automatic Resignation. Allowing an additional five days for mailing, appellant had until close of business December 6, 20051 to file her appeal. (See California Code of Civil Procedure (CCP) section 1013.)

Appellant filed her appeal for reinstatement after automatic resignation on December 9, 2005. The appeal was untimely because it was filed three days after service of the written notice.

DPA Rule 599.904 states that upon good cause being shown, DPA may allow an appeal to be filed within thirty (30) days after the end of the period in which the appeal should have been filed. Appellant’s appeal was filed within the requisite 30 days.

Appellant claimed good cause for late filing because of a miscommunication with her representative. Appellant spoke with her representative on December 6. Based on that conversation in which the appellant stated she received the appeal on December 2, appellant’s representative believed she could meet with the appellant on December 8 to perfect the appeal. It was not until the representative finally reviewed the documents on December 8 that she learned the action had been served on November 16 and was effective on December 2. The representative filed the appeal with DPA on December 9, the day after her meeting with the appellant.

This situation is similar to that in Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364. In that case the court found “good cause” to excuse an attorney’s six day delay in filing an appeal because of a breakdown in communication between the attorney and client. The court also held the delay was short and found no prejudice to the State department.

There is good cause in this case to accept appellant’s late filed appeal based on appellant’s miscommunication with her representative, the short delay of three days, and lack of prejudice to the respondent.

Appellant argued she had a valid reason for being absent because she was ill. She argued respondent wrongfully denied leave even though she faxed and mailed medical substantiation. Appellant also argued she relied on her supervisor’s past practice of consistently contacting her by telephone when the supervisor required her to submit medical information. Appellant also contended she is ready, able, and willing to return to work.

Appellant had been off work because of illness since at least September 12. She argued she was absent from October 31 through November 16 because she continued to be ill and her doctor had taken her off work. In support of this testimony, she provided a doctor’s note taking her off work from October 31 through November 16. Appellant had a valid reason for being absent.

Appellant has a pattern of absenteeism and/or problems regarding the reporting of her absences dating back to at least 2003. She has been counseled numerous times regarding her attendance and reporting requirements.

On or about March 1, she was given written requirements for obtaining leave. She was instructed to call within 15 minutes after her normal starting time each day she was going to be absent. She was required to speak directly to her supervisor or another supervisor. She was also instructed that she may be required to provide verification for her illness on a case-by-case basis. She was warned she would be considered absent without leave (AWOL) if she did not follow the requirements.

On or about September 21, appellant received a letter reminding her of the March 1, reporting requirements. Appellant was also told she would be considered absent without leave until she provided medical substantiation to support her absence from September 13 through “current” and that if medical substantiation was not provided, the “AWOL statute” would be invoked. Appellant testified she received the September 21 letter.

Appellant testified she called her immediate supervisor on September 27 to tell her she was faxing medical substantiation for her absence from September 12 through October 7. Appellant faxed the medical substantiation on that day. However, it was illegible.

Appellant’s supervisor testified she called the appellant on September 28, told her the fax was illegible, and asked her to mail the documentation. In contrast, appellant testified both that she did not know the fax was illegible until she called her supervisor on October 11 to report her absence and alternatively that her supervisor called her and said the fax “did not come through,” so she re-faxed the document. Appellant testified she told her supervisor on October 11 that she had previously mailed a copy of what she had faxed on September 27, but the mailed envelope came back on or about October 1 because it had an insufficient address. Appellant also testified she told her supervisor she would mail medical substantiation for September and October. Appellant testified she placed the September and October documentation in another envelope along with the envelope that had been returned and mailed it to her supervisor. She did not testify when she did this.

It was undisputed appellant’s supervisor called appellant on October 11 or 12, 18, 26 and 27 regarding her medical substantiation. On October 27 appellant’s supervisor told her she would be charged as being absent without leave from October 12 unless substantiation was provided. Appellant’s supervisor testified she finally received the medical documentation of appellant’s absence on October 28 when she received an envelope postmarked October 27. The envelope contained medical documentation for September and October which excused appellant from work until October 30.

Appellant testified she both called her supervisor and faxed medical verification to her supervisor for her absence from October 31 through November 16 on October 31. She also testified she may have mailed the documentation for this period at a later date.

Appellant’s supervisor testified she did not receive either a call or any medical information excusing appellant from work on October 31. She further testified she had not seen any medical information excusing appellant from work for October 31 through November 16 prior to hearing.

Appellant testified she was ready, able, and willing to return to work.

 

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Appellant filed a late appeal for reinstatement after automatic resignation. Her appeal was approximately three days late. Appellant claimed good cause for not timely filing her appeal. Appellant claimed miscommunication between herself and her union representative regarding the date of the notice of automatic resignation. Based on the short delay and lack of prejudice to the appellant as well as the finding in Gonzales v. SPB (supra) 76 Cal.App.3d 364, appellant’s appeal is considered timely consistent with DPA Rule 599.904.

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 by a preponderance of the evidence that she had a valid reason for being absent. The documentation presented by appellant substantiated her statement that she was medically unable to work. Respondent accepted such documentation in the past to approve leave. This is demonstrated by the fact respondent did not charge appellant with being absent without leave from September 12 through October 30 because it received documentation similar to that presented at hearing for the period October 31 through November 16. In addition, appellant’s supervisor testified she knew appellant was out because she was ill.

Appellant’s argument that it was her supervisor’s responsibility to consistently call her whenever she needed medical substantiation is without merit. Appellant was put on notice on September 21 and at least as late as October 27 that it was her responsibility to provide medical substantiation and call everyday to report her absences if she had not provided previous medical verification. Appellant finally provided the medical verification for her absences ending October 30 only after her supervisor called her several times to remind her of her obligation and to inform her she had not yet gotten the promised information. When appellant’s supervisor did not call appellant after October 30, appellant failed to comply with the instructions she had been given in March, September, and October. Appellant was never instructed she did not have to follow these procedures if her supervisor did not contact her. It is appellant’s responsibility to follow the required procedures to report her absences and provide documentation to obtain leave. Appellant did not follow the required procedures from October 31 through November 16.

The appellant provided no substantiation for her testimony that she faxed medical verification of her October 31 to November 16 absence to her supervisor. She provided no corroborating evidence she mailed medical substantiation or that she called appellant on October 31 or any other day through November 16. Appellant’s failure to timely mail the medical substantiation for her absences through October 30 and the undisputed calls from appellant’s supervisor after September 21 persistently asking appellant for the medical verification appellant kept saying she would provide lends weight to respondent’s position that appellant did not provide timely medical substantiation for her absences and did not call her supervisor each day to report her absence from October 31 through November 16. Appellant failed to prove she had a valid reason for not obtaining leave.

Appellant also failed to prove she was ready, able, and willing to return to work. Appellant has a history of absenteeism and has had considerable health problems which have kept her off work. Appellant’s self-serving statement without additional medical substantiation or further explanation is an inadequate basis to determine appellant is currently ready and able to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Workers’ Compensation Insurance Technician effective December 2, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.