Final Non-Precedential Decision Adopted: June 9, 2004

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 October 14, 2003, and January 29, 2004, at Sacramento, California. The record remained open until May 26, 2004 to allow for filing of briefs.

Appellant was present at all hearings. She represented herself on October 14, 2003. Brian H. Caldeira, Labor Relations Representative, California State Employees Association (CSEA) represented appellant on January 29, 2004.

Linda Deos, Senior Staff Counsel, represented the Employment Development Department (EDD), respondent.

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

Respondent automatically resigned appellant effective July 10, 2003, for being absent without approved leave from July 11 through July 17, 2003. CSEA filed a request (appeal) for reinstatement after automatic resignation on August 4, 2003. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleged she should be reinstated after automatic resignation because she didn’t know she was scheduled to work, and she was nevertheless too ill too work during the period she was charged with being absent without leave. Appellant further argued she obtained and presented respondent with valid medical substantiation of her inability to work and she should have been granted leave. She simultaneously argued she believed she had been given leave. Finally, she also alleged she is ready, able, and willing to return to work as of February 2, 2004 with accommodation.

Appellant has a history of illness. Since she began working with EDD on May 15, 2000, she has filed 11 workers’ compensation claims. Her various illnesses led to multiple work absences. She requested a reasonable accommodation as early as March or April 2002 whereby she would regularly work 20 hours a week, 1:00 pm to 5:00 p.m., Monday through Friday instead of being required to work on an intermittent, irregular basis. Respondent met with appellant in September 2002 and granted this reasonable accommodation. Appellant worked Monday through Friday, 1:00 p.m. to 5:00 p.m. from September 2002 until June 19, 2003, the last day she reported to work.

Appellant testified that beginning June 20 through July 11, 2003,1 she was too ill to work because she was suffering from work-related stress. She presented a typed note dated June 25, which she testified was authored by her doctor and corroborated her inability to work from June 20 through September 15. No medical personnel were called to testify.

On April 15, appellant received a memo instructing her to speak directly to her supervisor or another manager when she was unable to report to work. If she left a voicemail message, she was instructed to call back until she spoke directly with a manager. It was uncontested that appellant was not required to call every day if she submitted medical verification from a licensed medical professional substantiating her absence.

The call-in instructions were reiterated to appellant in a June 28 letter. The letter also instructed appellant to provide medical substantiation of her inability to work. Appellant was also provided an “Operation Support Schedule for Week Ending July 4, 2003.” Appellant was notified she was scheduled to work June 30 through July 3. The schedule also informed appellant she was responsible for confirming the following week’s schedule.

Appellant did not return to work on June 30. On July 2 or 3, she came into the office to sign her June timesheet and pick up additional blank personnel forms. There was no evidence appellant informed her supervisor at that time that she expected to be absent for an extended period or that she otherwise provided her supervisor with medical verification of illness.

On July 8, appellant faxed her supervisor a one page document intended to substantiate her absence beginning June 20. However, the document did not substantiate her absence. Readable words on the document reflected a doctor’s name, address, date and appellant’s name. The only other readable word was “VOID” which appeared multiple times. On July 8, the supervisor called appellant and informed her he needed clarification of the medical slip because he could not tell if it was a “valid medical response” from her doctor and he needed something he could read. Appellant testified that after that discussion, she believed she did not have to call in each day and that “everything was fine.” She also testified she understood she needed to provide additional medical substantiation/clarification.

Appellant did not call in to report her absence after July 9. She attended a religious conference in San Francisco on July 11 to July 13. She had previously requested vacation but had not obtained approval for this time.

On or about July 18, appellant completed an “Employee’s Claim for Workers’ Compensation Benefits.” On this form she stated, “Ill from stress due to conflicts and animosity at workplace; provided with a faulty reasonable accommodation; employer not applying doctor’s recommendation for job transfer for my stress and work injury; I continue to be harassed by supervisors due to my work injury and illness.” She did not provide any medical verification of her illness or need to be absent. The record is unclear when and to whom appellant originally provided this document. The supervisor received this form on July 22.

Respondent notified appellant she was being automatically resigned on July 18. On the afternoon of July 21, appellant faxed respondent a typed document that she testified came from her physician. She testified it was a typed copy of the June 25 medical verification which had been unreadable when it was originally presented to respondent on July 8. The document excused appellant from work through September 15. Respondent refused to accept this document as verification of appellant’s need to be absent July 11 through July 17.

Appellant contended at hearing she was ready, able and willing to return to work. She testified that when she explained to her physician that she was having a hearing, he released her to return to work on February 2, 2004. Appellant presented at hearing a written document dated January 23, 2004, which she testified was authored by her doctor. The document stated appellant is under the doctor’s care and that it would be beneficial to appellant if she works from 1 p.m. to 5:00 p.m., five days a week. It also recommends that appellant be transferred to another position in another office as soon as possible. This recommendation is consistent with the information appellant provided on her July 18 workers’ compensation benefits claim form. It is also consistent with appellant’s testimony at hearing that in order to return to work, she would require additional reasonable accommodation other than the regular work schedule that had already been provided. According to appellant, prior to her automatic resignation she had not been granted that part of a reasonable accommodation request that would have transferred her to another position.

“Hearsay evidence” is a statement that was made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated. Except as provided by law, hearsay evidence is inadmissible. (Evidence Code section 1200.)

Hearsay evidence may be used in administrative hearings for the purpose of supplementing or explaining other evidence. But, over timely objection, hearsay evidence is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. (Government Code section 11513(d).)

Respondent timely objected to the admission of the following documents on the basis of hearsay and lack of authentication and foundation: Appellant Exhibit C (June 25, 2003 handwritten note on letterhead indicating [appellant’s physician]); Appellant Exhibit D (typed note dated June 25, 2003 on letterhead reading Fair Oaks Psychiatric Associates); Appellant Exhibit H (June 17, 2003 letter on letterhead reading Fair Oaks Psychiatric Associates); and, Appellant Exhibit K (June 23, 2004 note “To Whom It May Concern” on letterhead reading Fair Oaks Psychiatric Associates).

Appellant argued Appellants Exhibits C and D were an exception to the hearsay rule because they were business records. She argued that Article 8.2 of the relevant collective bargaining agreement only required the employee to submit medical verification. She contended that any time the employee responded by providing any type of medical documentation, the documents had to be accepted by the employer and they were no longer hearsay.

Appellant’s argument is without merit. First, Article 8.2 of the relevant collective bargaining agreement was not offered into evidence and its mere mention in appellant’s closing brief does not represent substantive evidence. Second, the medical information presented to the employer by appellant prior to the automatic resignation was unreadable and did not represent medical verification. Third, respondent did not accept the documents tendered by appellant as medical verification of her need to be absent. Fourth, appellant did not present any statute, regulation, or case law to support her position that medical information supplied to the employer as a result of a collective bargaining agreement was either exempt from or an exception to the hearsay rule. In order to qualify as a business records exception to the hearsay rule, a custodian or other qualified witness must testify to a document’s identity and mode of preparation and the sources of information and method and time of preparation in such a manner as to indicate the document’s trustworthiness. (Evidence Code section 1271.) Such a witness was not called in this case and the necessary foundation for an exception to the hearsay rule was not established. The documents in question were not sufficient to adequately explain or supplement other evidence without additional clarification and testimony. Therefore, although they were admitted as relevant hearsay evidence, they cannot be used to support a finding. (Government Code sections 11513 (c) and (d).)

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 he/she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

Appellant failed to prove by a preponderance of the evidence that she had a valid reason for being absent from work July 11 through July 17. She failed to present objective, reliable evidence to substantiate her need to be absent during this period. Her argument that she did not know she was scheduled to work is unreasonable given the fact that she had requested and agreed to a reasonable accommodation in September 2002 which assured her of a regular, consistent work schedule which she had worked for approximately nine months before her automatic resignation. In addition, the evidence shows appellant was notified it was her responsibility to verify her weekly work schedule.

Appellant’s argument that she had a valid reason for not obtaining leave was also not proven by a preponderance of the evidence. She had been notified that she had not submitted adequate, i.e. readable, medical verification of her need to be absent. She admitted she knew she had to provide additional clarification. She admitted she knew she was expected to call each day that she was absent when she did not have approved leave based on medical verification of her absence. Appellant did not call during the period July 11 through July 17 and she did not submit clarification of the unreadable medical document until July 21, three days after she was automatically resigned. Appellant’s contention that she believed “everything was fine,” that she had been granted leave and that she did not have to do anything else to secure leave is simply not credible.

Finally, appellant failed to prove by a preponderance of the evidence that she is ready, able, and willing to return to work. She testified she could return with accommodation. The doctor’s slip she provided to substantiate her ability to return is fraught with recommendations for reasonable accommodation. Appellant’s July 18 workers’ compensation claim was partially based on respondent’s failure to accommodate her by transferring her to a different position. Both appellant’s medical ability and her willingness to return to the position she held at the time she was automatically resigned remains questionable.

 

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that the appeal for reinstatement after automatic resignation effective July 10, 2003, is denied.

 

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1. All dates are 2003 unless otherwise indicated.