DPA Case No.: 11-H-0122 - Appeal of Denial of Sick Leave
Final Decision Adopted December 7, 2011
By: Ronald Yank, Director
A hearing was held on October 20, 2011 in Riverside, California before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA).
Appellant was present and represented by Jo Ann Juarez-Salazar, Union Representative, Service Employees International Union, Local 1000. Theresa Menefee, Medical Employee Relations Officer, represented the California Department of Corrections and Rehabilitation (CDCR), California State Prison – Lancaster (CSP – LAC), Correctional Health Care Services (CHCS), respondent.
I - JURISDICTION
On August 5, 2011, CDCR, CSP – LAC, CHCS, respondent, notified appellant, her sick leave request for July 24, 2011 was denied. Appellant filed an appeal with DPA on August 24, 2011.
California Government Code sections 19859(a) provides each employee is entitled to sick leave with pay, on the submission of satisfactory proof of the necessity for sick leave as provided by rule of the department. An employee may file an appeal with DPA if the appointing power denies a request for sick leave with pay. The appeal complies with the jurisdictional requirements of Government Code section 19859(a). DPA has jurisdiction over the appeal.
II - ISSUES
1. Did respondent unreasonably deny appellant’s sick leave of July 24, 2011?
2. Is appellant entitled to be paid sick leave for July 24, 2011?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant, a Registered Nurse, has been employed by respondent’s California State Prison-Los Angeles County facility since March 27, 2006. Her supervisor is a Supervising Registered Nurse II (SRN II). Her regularly scheduled days off (RDO) are Friday and Saturday and she generally begins work at 7:00 a.m. At the time of the denial of sick leave, appellant had sufficient sick leave credits.
Appellant was not at work from June 28, 2011 through July 24, 2011. She was given a note from her doctor on July 18, 2011, excusing her from work from June 28, 2011 through July 21, 2011. She also had a doctor’s note dated July 19, 2011 excusing her from work from June 28, 2011 through July 24, 2011. The July 18, 2011 doctor’s note was received by respondent’s Return-to-Work (RTW) coordinator’s office on July 18, 2011. The July 19, 2011 doctor’s note was not received by the RTW coordinator’s office until August 12, 2011.
Respondent’s RTW coordinator assists employees returning to work after a long-term absence. On July 22, 2011, the RTW coordinator called appellant’s work area to advise appellant was cleared to return to work Sunday, July 24, 2011. The RTW coordinator spoke with an employee and told her if appellant did not return to work on July 24, 2011, the supervisor should call appellant to determine her off-work status.
The RTW coordinator advised she would follow-up on July 25, 2011, but did not. (fn. 1) There was another person who also worked in the RTW coordinator’s office who was to assume the RTW coordinator’s responsibilities in her absence. There was no evidence she did so. The RTW coordinator explained any employee returning after a 5-day or longer absence must go through the RTW coordinator. She explained an employee may bring their medical documentation prior to returning to work after a long-term absence or upon their return to work.
Respondent called appellant on July 24, 2011 to determine her off work status. Appellant advised another SRN her leave was through July 24, 2011. Appellant returned to work on July 25, 2011 at 7:00 a.m. No one asked her for a doctor’s note before she began work; however, later that morning her supervisor asked her for a doctor’s note to substantiate her time off.
Appellant told the SRN II her doctor’s notes were provided to the RTW office. On July 26, 2011, the SRN II again asked for a doctor’s note for July 24, 2011. Appellant told him something to the effect of, “you will get it.” Two days later, the SRN II again asked appellant for her doctor’s note and again appellant told him to check with the RTW office.
Appellant believed the RTW coordinator had received both doctor’s notes, dated July 18, 2011 and July 19, 2011, which cleared her absence through July 24, 2011. Appellant had the July 19, 2011 doctor’s note sent to a certain fax number, she later learned was incorrect. When appellant learned the fax number was incorrect, she delivered another copy of the July 19, 2011 doctor’s note to the RTW office.
On August 3, 2011, twelve days after it should have been sent, the RTW office sent a notification to the SRN II appellant was cleared for full duty effective July 22, 2011, not July 24, 2011. The notification was not sent to appellant. After receiving the notification from the RTW office, the SRN II did not ask appellant for a doctor’s note for July 24, 2011.
On August 5, 2011, the SRN II gave appellant a Letter of Instruction (LOI). The LOI told appellant she failed to report for work as scheduled on July 24, 2011 and would therefore be charged an unapproved absence without leave (no pay) for Sunday July 24, 2011. The memo stated in relevant part, “[y]ou are aware of the
proper procedure to use when requesting time off from work or calling in sick.” No sick leave policy was offered as evidence.
On August 12, 2011, appellant brought the July 19, 2011 doctor’s note indicating her original leave from June 28, 2011 was extended to July 24, 2011 to the RTW coordinator. Appellant, who thought the July 19, 2011 doctor’s note had already been faxed to the RTW office, provided another July 19, 2011 doctor’s note in the hopes it would clear up any problem with her July 24, 2011 absence.
The RTW coordinator told appellant she did not need another note and only took the July 19, 2011 doctor’s note because appellant insisted. The RTW coordinator believed since “she had processed [appellant’s] return to work,” she did not need another note especially since it was “just for one day” and simply “an extension of the original note.” The RTW coordinator took the July 19, 2011 doctor’s note from appellant and attached it to the original documentation, but did not notify appellant’s supervisor.
IV - ANALYSIS
Government Code section 19859 and the California Code of Regulations, Title 2, section 599.745 provides an appointing power shall approve sick leave and may require the employee to submit substantiating satisfactory proof of the necessity for sick leave including, but not limited to, a physician’s certificate. If the appointing power does not consider the evidence adequate, the request for sick leave shall be disapproved.
Respondent unreasonably denied appellant’s sick leave request.
In accordance with article XXIV, section 4, of the California Constitution, the Legislature, by Government Code section 18100, (fn. 2) has provided for sick leave credits for all civil service personnel upon the “submission of satisfactory proof of the necessity for sick leave.” (Wallace v. SPB (1959) 168 Cal.App.2d 543.)
Appellant’s supervisor appeared angry and frustrated during his testimony and made it clear appellant should be punished for not following the sick leave policy. However, he could not produce a written sick leave policy stating instead, “everyone knows what the policy is – it’s standard practice – everyone knows.” He admits had appellant produced the July 19, 2011 doctor’s note returning her to work on July 24, 2011, there would be no problem.
While the phrase “arbitrary and capricious” has no precise meaning and is not defined in statute, it generally encompasses conduct which lacks any reasonable basis or is without any rational support whatsoever. (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57.) Appellant’s supervisor’s outrage at appellant’s absence clouded his ability to properly handle appellant’s return to work, and his actions are without any rational support.
Appellant’s supervisor also admits he did not have a problem with the July 19, 2011 doctor’s note authenticity and never communicated to appellant he needed a doctor’s note for only July 24, 2011. Additionally, the RTW office failed to timely communicate to appellant or to appellant’s supervisor there was no doctor’s note for July 24, 2011. Had the RTW office or appellant’s supervisor communicated the need for a note for July 24, 2011, this issue could have been avoided. For his part, appellant's supervisor should have checked with the RTW coordinator before disciplining appellant.
Moreover, the RTW coordinator should have alerted the supervisor of the new note clearing appellant’s absence for July 24, 2011. Instead, she did nothing, except staple the note to her paperwork. The RTW coordinator believed her job was done after she issued her notification, albeit nearly two weeks late, and believed that, “once I’ve cleared them I attach [any additional documentation] to the original note” – “for me it was not an extension because she was already cleared.”
This careless approach to merely “process paperwork” without exercising attention to the significance of the return-to-work documents is not reasonable. The
RTW coordinator must be diligent in returning employees to work after a long-term absence. It is much more than simply “processing the leave” after the employee returns to work. When appellant provided a new doctor’s note for her long-term absence, the RTW coordinator should have modified the return-to-work date. She did not.
Appellant should not be made to lose a days’ pay because paperwork was not processed in an appropriate manner. Furthermore, the supervisor must act like a prudent supervisor. When he failed to pursue the July 24, 2011 absence issue more thoroughly with appellant and the RTW office, his actions were arbitrary and unreasonable.
Appellant is entitled to be paid sick leave for July 24, 2011.
Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence she provided substantiating evidence for her request for sick leave. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) All of the evidence adduced at the hearing indicates appellant acted in good faith to deliver satisfactory proof of her absence. Respondent did not provide a sick leave policy and failed to properly follow its own procedure in returning appellant to work after her long-term absence. Appellant is blameless in this matter, as it was incumbent upon the respondent to communicate to appellant the need for a doctor’s note for the July 24, 2011 absence.
V - CONCLUSIONS OF LAW
Appellant proved by a preponderance of evidence she provided adequate medical substantiation and her sick leave request for July 24, 2011 was unreasonably denied. She is entitled to sick leave pay for July 24, 2011.
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THEREFORE, IT IS DETERMINED, the denial of sick leave appeal is hereby granted. Respondent shall reimburse appellant the sum of $365.52 within 30 days of the attached Order.
Footnotes
1. The RTW coordinator usually sent a clearance letter to the employee’s supervisor, but called instead because she was going to be out of the office the following week.
2. Government Code section 18100 was renumbered 19859.
