Final Decision Adopted October 12, 2011

By:  Ronald Yank, Director

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on August 31, 2011 in Sacramento, California.

 

Appellant, was present and represented by J. Felix De La Torre, Assistant Chief Counsel, Service Employees International Union (SEIU), Local 1000.

 

Roger Kemmerle, Staff Services Manager I (Specialist), represented the Department of Transportation, respondent.  Judi Smith, Staff Services Manager I, Department of Transportation (DOT), was respondent’s representative.

On May 6, 2011, DOT, respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from May 2, 2011 through May 6, 2011.  Appellant filed a request for reinstatement appeal with DPA on May 27, 2011.

 

California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation if he makes a satisfactory explanation as to the cause of his absence and his failure to obtain leave and DPA finds he is ready, able, and willing to resume the discharge of the duties of his position.  The appeal complies with the procedural requirements of Government Code section 19996.2.  DPA has jurisdiction over the appeal.

Appellant argues he had a valid reason for his absence due to his debilitating migraines; he provided the necessary doctor’s notes to respondent and is now ready, able, and willing to return to his position as an Associate Information Systems Analyst (Specialist).

 

Respondent contends while appellant may have had a valid reason for his absence, he failed to obtain leave and it is not clear whether he is ready to resume the discharge of his duties.

 

The issues to be determined are:

 

1. Did appellant have a valid reason for his absence from May 2, 2011 through May 6, 2011?

 

2. Did appellant have a valid reason for not obtaining leave from May 2, 2011 through May 6, 2011?

 

3. Is appellant ready, able, and willing to resume the discharge of duties of an Associate Information Systems Analyst (Specialist).

The evidence established the following facts by a preponderance of the evidence. 

 

Appellant began work with DOT on November 17, 1997.  At the time of his AWOL separation, he was an Associate Information Systems Analyst (Specialist) and worked an eight-hour Monday through Friday shift at respondent’s Information Technology division in Marysville, California.  Appellant suffers from chronic migraine headaches.  He began missing work because of those migraine headaches in February 2011, and did not work at all in March 2011 or April 2011. 

 

In March 2011, appellant received a typewritten doctor’s note from his doctor  taking him off work for approximately 8-10 weeks.  The Office Manager for appellant’s doctor testified telephonically.  Appellant was a patient of his doctor for at least 12 years and the doctor’s Office Manager frequently sent doctor’s notes to respondent via fax regarding appellant’s medical condition. 

 

On March 24, 2011, the Office Manager faxed a typewritten doctor’s note, signed by the doctor, to respondent’s fax number 741-7123.  The March 24, 2011 typewritten doctor’s note, states:

 

“. . . is a patient of my (sic) that I have been treating as well as his doctor in San Francisco.   He is undergoing treatment and is currently unable to work and I do not feel he will be returning to work for at least 8 to 10 weeks.”

 

The Office Manager had no reason to believe the fax was not received by respondent.  Respondent claims non-receipt of the March 24, 2011 typewritten doctor’s note, but claims receipt of a handwritten doctor’s note dated March 24, 2011 which states: 

 

“Patient [appellant] is to be off work for today and tomorrow, 3-25-11.”

 

Appellant clarified his May 6, 2011 email was to advise respondent the medical documentation regarding his absences was on the way, but his doctor’s office closed at noon on Friday.  The email did not go directly to appellant’s supervisor because his email address was typed incorrectly, so the Division Chief forwarded the email to appellant’s supervisor.  Appellant’s supervisor, who left work at 3:00 p.m. on Friday, May 6, 2011, did not receive appellant’s email until he returned to work on Monday, May 9, 2011.

 

Appellant called his doctor at 8:00 a.m. on Monday, May 9, 2011 to request his previous doctor’s note taking him off work for 8-10 weeks be resent to respondent.  On May 9, 2011, the doctor’s office refaxed the original typewritten March 24, 2011 OWO excusing appellant for 8-10 weeks and a new OWO taking appellant off work until June 1, 2011.  Appellant also provided respondent with a letter from his doctor recapping his prognosis and his need to be out through June 1, 2011.

 

Appellant’s supervisor has a “relaxed” policy regarding absences and that email communications regarding absences are okay.  No other policy or procedure for long- term absences was introduced into evidence.  An “expectations letter,” not signed by appellant, stated, “I expect you to contact me or my designee and the help desk, no later than ½ hour after your start time if you are going to be out or late for any length of time.  You may leave a voice mail message on my phone if you do not get me directly.”  [Emphasis in original.]  The “expectations letter” was silent on the issue of delivery of sick notes and obtaining time off for long-term absences.

 

Appellant had long-term absences before and had always sent in doctor’s notes for his long-term absences which had always been accepted. He has never taken any other steps to obtain leave.  On Friday, May 6, 2011, prior to his early departure, appellant’s supervisor notified his disciplinary services unit that, “there were 5 consecutive days appellant had not called or told him he was going to be absent.”  On Friday, May 6, 2011, respondent issued its Notice of AWOL separation to appellant for his absence from May 2, 2011 through May 6, 2011.  No doctors were called to testify, but medical notes were introduced by appellant; the most recent indicating appellant was ready to return to work with no restrictions effective August 15, 2011.

Referred to as the AWOL statute, Government Code section 19996.2(a) states:  “[a]bsence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.”  It is not disputed appellant was absent for more than five consecutive days as he was not at work from May 2, 2011 through May 6, 2011.

 

Government Code section 19996.2(a) also provides:  “[r]einstatement 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.”

 

The Department of Personnel Administration has long held when circumstances regarding the health of an employee are beyond their control and not through any fault of their own, a satisfactory explanation exists for the absence.  It was undisputed appellant suffers from a chronic illness manifested by extreme migraine headaches.  Appellant’s chronic illness is a valid reason for his absence.

 

There was no evidence appellant was told how to report long-term absences.  In fact, his direct supervisor testified he had a “relaxed” policy regarding absences.  He did not fully explain his “relaxed” policy, and respondent failed to show appellant was told any other way to report his long-term absences.  Although a duty statement and employee “expectations letter” were in evidence, neither document spoke of how appellant was to obtain long-term leave. 

 

For his part, appellant understood to leave a message for his supervisor or help desk if he was going to be absent.  He also understood if he was anticipating a long- term absence he was to provide the necessary doctor’s note verifying his need to be off work.  In the instant case, appellant did everything he had done in the past in order to request long-term leave, which was to provide respondent with a doctor’s note validating the need for time off.

 

The mid-April 2011 email from the Division Chief, appellant’s supervisor’s supervisor, was not only cordial, it suggested appellant’s leave had been approved and said nothing of what, if anything, was expected of appellant.  Appellant did not call during April 2011, believing his March 24, 2011 typewritten doctor’s note taking him off work for 8-10 weeks had been received by respondent.  

 

The phrase “arbitrary and capricious” has no precise meaning and is not defined in statute.  However, conduct which lacks any reasonable basis or is without any rational support whatsoever may be considered to be arbitrary and capricious.  (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57.)  It also encompasses conduct not supported by a fair or substantial reason.  (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d. 398.)  Respondent not only did not request any additional information from appellant, it waited until the last minute to tell appellant to further substantiate his absence.

 

Respondent’s failure to provide appellant ample time to provide the requested documentation is not supported by a fair or substantial reason.  It is not reasonable under the circumstances the appellant be given less time to comply than on previous occasions.  To give appellant less than 4 hours to provide medical substantiation appears arbitrary in light of the evidence, particularly when respondent waited an entire week to receive a note in April 2011 without a problem.   

 

Respondent knew appellant suffered from debilitating migraines and had been off work consistently since March 2011.  Respondent also knew, or at least learned at the time of the Coleman hearing, appellant had been treated by several doctors for his medical condition and had been taken off work until at least June 1, 2011.

 

Moreover, appellant’s supervisor’s notification to his disciplinary services unit that, “there were 5 consecutive days appellant had not called or told him he was going to be absent,” is not supported by the evidence.  The supervisor failed to check before his early departure that Friday afternoon if anything had been received by appellant.  To be fair to appellant, and in keeping with his “relaxed” policy, appellant’s supervisor needed to ensure his statement to his disciplinary unit was sound.  He did not.  His last-minute notice to appellant to provide a doctor’s note or come to work, belies the claim he advocated a “relaxed” leave policy.

 

Conversely, it was not unreasonable for appellant to rely on respondent’s past behavior regarding long-term leave and act in conformity with that behavior.  A good example of respondent’s past behavior is appellant’s supervisor’s dateless notation in an otherwise date specific timeline.  The notation, conceivably made on March 30, 2011, stated appellant had a doctor’s note taking him off work.  The supervisor did nothing more.  He did not notify his disciplinary services unit appellant was absent for five consecutive days, nor did he AWOL appellant even though the doctor’s note in question was not received for a week. 

 

Yet a month later, unbeknownst to appellant, respondent altered its policy and gave him one afternoon to provide an OWO or report to work.  This arbitrary behavior is unfair at best and capricious at its worst.  Appellant should not be penalized for respondent’s failure to communicate a reasonable rule for obtaining leave.  While respondent has the right to establish and enforce a uniform procedure that employees must follow to obtain leave, such a procedure must be clear and consistently applied.   

Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence he had a valid excuse for his absence and failure to obtain leave and he is currently able to return to work.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 

 

Appellant’s migraines are no longer debilitating and he is on a drug regimen which allows him to return to work.  He has no less than three separate physicians evaluating and treating his chronic migraine condition.  His return-to-work order from one of those treating physicians together with appellant’s demeanor and testimony during the hearing, is sufficient for appellant to meet his burden by a preponderance of the evidence he is ready, able, and willing to return to work.  

Appellant proved by a preponderance of the evidence he had a valid reason for his absence and he had a valid reason for not obtaining leave.  Appellant has also shown by a preponderance of the evidence he is ready, able, and willing to return to work.  Respondent shall restore appellant to his position as an Associate Information Systems Analyst (Specialist) within 2 weeks of this order.  No back pay is authorized.