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DPA Case Number 06-G-0027 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 13, 2006
By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 24, 2006, at Sacramento, California.
Appellant was present and was represented by Gerald James, Labor Relations Counsel, Professional Engineers in California Government (PECG).
Theodore A. Cobb, Assistant Chief Counsel, represented the State Water Resources Control Board (WRCB), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

On March 17, 2006, respondent notified appellant she was being automatically resigned effective close of business March 29, 2006, for being absent without approved leave from March 2 through March 17, 2006. PECG filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on March 28, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant argued she should be reinstated because she was too ill to work during the relevant period; she made reasonable efforts to keep her employer informed of her absence; and, she is ready, able, and willing to return to work. She also argued respondent’s requirements for obtaining leave were unreasonable.

III - REASON FOR BEING ABSENT

Appellant testified her absenteeism increased in 2005 and the beginning of 2006 because she had medical issues and family issues that required her to make various court appearances.
Regarding the period of March 2 through March 17, appellant testified that with the exception of March 13, she was unable to come to work because new medications her doctor prescribed on February 13 made her too ill to work. She testified she was unable to work on March 13 because her daughter was ill.
Appellant’s physician testified she had been treating appellant for anxiety and an adjustment disorder since January 2004. She saw the appellant on February 13 and March 16. During the February 13 visit, the appellant reported an increase in symptoms because she was not getting along with her supervisor. Appellant reported having insomnia, hypersomnia, trouble concentrating, tearfulness, and emotional instability. In response to appellant’s reported symptoms, the doctor changed appellant’s medication. The doctor did not take the appellant off work.
A follow-up visit was scheduled for March 15. Appellant did not keep the March 15 appointment. For reasons unknown, she rescheduled the appointment for March 16. On March 16, the doctor determined appellant was tolerating her stressors. Based on their discussion, the doctor noted in appellant’s file something to the effect, “Clearly patient needs to find a better work environment than she is working in today.” Nonetheless, the doctor gave the appellant a “Provider Report of Patient Status” (Provider Report) that noted appellant had been under the doctor’s care to “present;” and, that appellant could return to regular work on “3-20-06.” This report did not indicate appellant had been unable to work for any prior period. The doctor testified the appellant did not complain about the effects of her medications.
The doctor did not see the appellant again during the relevant period. Based on a March 20 telephone call from appellant requesting a note taking her off work from March 2 through March 16, the doctor issued a second Provider Report. The second Provider Report was dated March 20 and indicated appellant was off work from “3/02/06 through 3/17/06.”

IV - REASON FOR NOT OBTAINING LEAVE

NOTICE

Appellant was counseled about her attendance on September 15, 2005. On September 20, 2005 she received written procedures she was to follow to obtain leave. Appellant was instructed to call her supervisor if she would be more than thirty (30) minutes late or if she would be absent the entire day. She was instructed that if she didn’t speak directly to the supervisor, she was to leave a voicemail message and then call the reception desk with a message informing her second-level supervisor as well as her immediate supervisor that she would be absent. Appellant’s attendance did not improve.
On October 19, 2005, a written attachment again detailing the procedures to obtain leave was included with appellant’s performance appraisal. Appellant was placed on attendance restriction. She was instructed she was to report her absences by personally notifying her supervisor by 8:00 a.m. If her supervisor was not available, appellant was instructed to notify her second-level supervisor. If neither supervisor was available, appellant was to leave a message with the receptionist and a telephone number where she could be reached. If appellant was asked to provide medical substantiation for her absence, the substantiation was to include a legible telephone number and physician’s name; the nature of the illness; and, confirmation she was unable to work for the period of the absence. The medical substantiation was to be obtained during the period of the absence.
On February 3 appellant was given a formal reprimand for her attendance problems and her failure to consistently follow the procedures to obtain leave. The reprimand canceled appellant’s alternate work schedule and reminded her she needed to follow the procedures in the October 19, 2005 attachment to her performance appraisal. It again stressed that appellant had to leave a telephone number where she could be reached and that failure to do so or to respond to a return call could result in absence without leave. The reprimand also clarified that if appellant was required to provide medical verification for her absence, the verification must be dated the day it was requested and submitted on her return to work. If appellant was required to provide medical verification for a family illness, the verification had to include a notation indicating appellant’s care was required.
On March 13, respondent notified appellant she had to provide medical substantiation of her inability to work because her daughter was ill and she was needed to provide care for her.
Around 11:00 a.m. on March 16, appellant’s supervisor left appellant a telephone message informing her to check her electronic mail (e-mail) for details about what respondent considered her absence without leave. At approximately 2:00 p.m. on May 16, appellant’s supervisor notified appellant through respondent’s e-mail system that she was required to provide medical substantiation for her absences from March 13 to “the present” by noon on March 17. The medical substantiation was to be legibly signed by a medical practitioner on a physician’s letterhead with the physician’s telephone number. It had to include the date and time examined; the dates of illness and release to return to work; the general prognosis; and, any restrictions or limitations. Appellant’s supervisor left appellant a second voicemail message on March 17 again telling her to check her e-mail for details regarding the requirements for her to obtain leave and to avoid being automatically resigned pursuant to Government Code section 19996.2. In that March 17 message, the supervisor also verbally informed the appellant that doctor’s substantiation was due by noon on that day.

APPELLANT’S POSITION

Appellant argued she reasonably complied with the requirements to obtain leave. She testified that on March 2, 3, 6, 7, 8, 9, and 10 she first left her immediate supervisor a voicemail message and then called the receptionist to report her absence. She testified she generally reported her absences by 8:00 a.m. She also testified she reported she would be absent because she was sick as a result of problems with her medication. Appellant further testified she reported her absence on March 13 as required but she chose to not to go to the doctor to get medical substantiation of her daughter’s illness. Appellant admitted she did not call in on March 14 or 15. She admitted she should have called in on March 14. However, she did not call in on March 15 because she believed her scheduling of a doctor’s appointment on the office calendaring system constituted notice of her absence. Appellant rescheduled her medical appointment for March 16. She reported her absence on March 16 around 2:45 p.m. She delayed reporting her absence until she could talk with her doctor. On March 16, appellant left her supervisor a message saying she had seen her doctor and she would be reporting to work on Monday, March 20. Appellant did not call to report her absence on March 17 because her March 16 message informed her supervisor she would be back at work on March 20.
Appellant testified she did not receive her supervisor’s March 16 message instructing her to provide a doctor’s substantiation for her absences until March 17 at approximately 9:30 a.m. When she received the message, she began trying to locate a fax machine to provide the March 16 medical substantiation as requested. Appellant testified she was unable to find a location with fax equipment so she began installing the fax capability on her home computer. She encountered difficulty. At approximately 11:30 a.m. she called her supervisor and left him a message and then contacted the receptionist. She asked the receptionist to inform her supervisor she would be providing the required medical information as soon as she could and that she was having trouble getting her fax machine to work. Appellant finally faxed the medical substantiation at approximately 2:30 p.m. She called the office to make sure the fax had been received. She asked a co-worker to deliver the fax to her supervisor. The co-worker put the fax on the supervisor’s chair. By this time, however, the notice of automatic resignation had been mailed.

RESPONDENT’S REBUTTAL

Respondent disputed appellant’s argument that she reasonably complied with the requirements to obtain leave. Appellant’s supervisor recorded appellant’s absences and her reporting conduct on a daily basis. He obtained the recorded information from either voicemail messages left by the appellant for him on his telephone answering machine or from the receptionist with who appellant spoke on at least some of the days she was absent. According to the supervisor, the appellant reported her absences at various times of day and she provided a variety of reasons why she would either be late for work or why she would be absent.
Appellant’s supervisor testified about appellant’s absences and reporting efforts and his communication with her as follows. On March 2, appellant left a message saying she would be at work by noon. She did not report to work at all that day. On March 3, appellant left a message with the receptionist at approximately 10:00 a.m. indicating she possibly would not be coming to work that day. She did not come. Appellant left a message on March 6 reporting she would be coming to work by 12:30 p.m. Appellant did not come to work on this day. However, appellant was not expected to work because it was her regularly scheduled day off under her alternate work schedule. Appellant notified her supervisor at approximately 9:30 a.m. on March 7 that she overslept, but she would be in by 12:30 p.m. Appellant did not report to work that day. On March 8, appellant called in “sick” at approximately 9:35 a.m. and on March 9 she called at approximately 9:30 a.m. to report she would not be at work because she had a “stomach bug.” On March 10, appellant reported at approximately 6:31 a.m. she would be staying home and that she had her “meds under control.” Appellant left a message for her supervisor at approximately 7:00 a.m. on March 13 stating her daughter was sick that day but she would be in the next day. This was the only day during the relevant period that she also left a telephone number where she could be reached. Appellant’s supervisor returned her call on March 13 and left a message informing her that to obtain leave she needed medical substantiation of her daughter’s illness. Appellant did not report her absence on March 14 or on March 15. Appellant did not call to report her absence prior to 8:00 a.m. on March 16. Respondent’s supervisor called appellant at approximately 11:10 a.m. at the telephone number she had left on March 13. Respondent’s supervisor testified he left a message saying something to the effect he considered appellant absent without leave and that he believed she had “abandoned her job.” He instructed her to check her e-mail for more detailed information. Appellant’s supervisor did not contest appellant left a message for him at approximately 2:45 p.m. on March 16 telling him she had been to the doctor and that she would be at work on Monday, March 20. However, he also testified appellant included in her message that she had received his message and e-mail and that she was not abandoning her job. Appellant’s supervisor called appellant at approximately 8:15 a.m. on March 17 at the telephone number she left on March 13. He reiterated she needed to check her e-mail because she was considered absent without leave. He also verbally informed her she needed to provide medical substantiation for her absence by noon that day. It was undisputed appellant called respondent at approximately 11:30 a.m. on March 17 saying she would provide the medical substantiation as soon as possible. It was also undisputed that appellant faxed the Provider Report dated March 16 around 2:30 p.m. and that respondent received the faxed Provider Report.
When respondent did not receive medical substantiation by noon on March 17, it served the notice of automatic resignation by depositing it in the United States mail. Appellant received the notice on Saturday, March 18. Therefore, she did not return to work on March 20.

V - READY, ABLE AND WILLING

Appellant testified she was ready, able, and willing to return to work.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

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.
In this instance, appellant failed to prove she had a valid reason for being absent. Appellant testified she was absent from March 2 through March 10 and March 14 through March 17 because of problems with medication that was prescribed to her on February 13. However, her doctor testified that appellant did not complain to her about the medication at any time. There was no evidence appellant contacted her doctor for any reason between February 13 and March 16 except to delay her medical appointment. Moreover, prior to the hearing, appellant provided shifting justification for her absences.
Appellant admitted the doctor did not take her off work on February 13. The March 16 Providers Report from appellant’s physician does not indicate appellant was unable to work between February 13 and March 16. Appellant’s physician did not provide the March 20 Providers Report which takes appellant off work retroactive from March 2 through March 17 until she was asked to do so by the appellant after appellant received her notice of automatic resignation. Appellant’s physician did not re-examine her and provided the document based on the information provided by appellant over the telephone. There was no evidence that appellant’s condition had changed between March 16, the date of appellant’s last doctor’s examiniation, and March 20. The only thing that changed was that appellant had been notified she was automatically resigned. Although appellant was notified she was eligible for leave if she had a serious health condition that prevented her from working, she did not submit any claim of serious medical impairment. Under the circumstances, the appellant’s testimony and the physician’s note that was obtained after appellant’s notification of automatic resignation based on appellant’s request are an inadequate basis on which to find appellant had a valid reason for being absent. Appellant also failed to provide substantiation of her need to be absent on March 13 when she reported she could not work because her daughter was ill. Appellant admitted she chose not to obtain approved leave for this day.
Appellant also failed to prove she had a valid reason for not obtaining leave. Although she argued she made reasonable efforts to obtain leave and argued that her employer was being unreasonable in its demands and enforcement of its leave criteria, these arguments are without merit. Respondent automatically resigned appellant because she consistently failed to meet the criteria it set for obtaining leave. Appellant was notified of the importance of following the procedures for obtaining leave on at least three occasions prior to March 16. Appellant failed to follow the procedures to obtain leave on every workday between March 2 and March 17. On March 2, 3 and 7, she reported she would be late, but she never reported to work at all on those days. On March 8 and 9, she reported after her 8:00 a.m. reporting deadline and she failed to leave a telephone number at which she could be contacted. On March 10, she failed to leave a telephone number at which she could be reached. Appellant chose not to obtain and submit the required medical documentation to confirm her report that she was unable to work on March 13 because her daughter was ill. Appellant did not call her supervisor to report her absences on March 14 or 15. She did not go to the doctor on March 15, but she still did not report to work and did not follow the instructions her supervisor gave her to obtain leave. Appellant did not report her absence on March 16 until after her 8:00 a.m. reporting deadline and she did not leave a telephone number where she could be reached.
Respondent’s requirements to call at or before 8:00 a.m. and to leave a telephone number where she could be reached each day was reasonable. If appellant would have called at or before 8:00 a.m. to report her absence on March 16 and to report she was going to the doctor, and if she would have left a telephone where she could have been reached that day, appellant’s supervisor may have been able to contact her directly on March 16 to fully and personally explain the requirement to provide medical substantiation by noon on March 17. Such timely reporting and providing the required telephone number could have potentially ensured earlier notification of the medical substantiation requirement. Respondent used the only methods of communication appellant had provided. The requirement to provide medical substantiation by noon on March 17 was available to appellant by 2:00 p.m. on March 16. If indeed appellant did not receive the instruction that she was to provide medical substantiation by noon on March 17 until 9:30 a.m. on March 17, the responsibility for failure to either access the information or otherwise receive it before that time rests with the appellant.
Respondent’s instruction to provide the required medical substantiation by noon on March 17 and its subsequent automatic resignation of appellant when it did not receive the information by that time is also reasonable in this situation. Appellant had been thoroughly counseled and notified of the importance of adherence to the requirements for obtaining leave. She had been notified of the consequence of failure to comply with these instructions. Her past pattern of non-compliance and unreliability reasonably supported appellant’s lack of confidence in appellant’s assurance she would comply “as soon as possible.” Nothing prevented appellant from either delivering the medical information personally or going to Kinko’s to fax the information as suggested by the receptionist with whom she talked about her faxing difficulties. Appellant failed to prove she had a valid reason for not obtaining leave.
Because appellant failed to prove she had a valid reason for her absence and a valid reason for not obtaining leave, it is unnecessary to determine if she is currently ready, able and willing to return to work.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation from the position of Water Resource Control Engineer effective close of business March 29, 2006, is denied.
 
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FOOTNOTES

1. All dates are 2006 unless otherwise indicated.
  Updated: 5/22/2012
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