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DPA Case Number 01-F-0121 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: January 17, 2002

By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on January 10, 2002, at Sacramento, California.
Appellant was present and was represented by Pam Manwiller, Regional Administrator, Union of American Physicians & Dentists (UAPD).
Tim Rossetti, Employee Relations Officer (ERO), California State Prison, San Quentin (San Quentin), represented the Department of Corrections (CDC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

Respondent automatically resigned appellant effective close of business October 22, 2001, for being absent without approved leave from October 23 through October 30, 2001. UAPD filed a request (appeal) for reinstatement after automatic resignation on November 13, 2001. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

At the hearing, appellant claimed that he had a satisfactory reason for being absent and for not having obtained approved leave. The parties stipulated that appellant is ready, able and willing to return to work.

III - CHRONOLOGY

Appellant last reported for work at San Quentin on September 10, 2001. On that date he was called into the office of the Chief Deputy Warden and advised that he was temporarily reassigned to Solano. The Chief Deputy Warden testified that he ordered appellant to Solano pending the outcome of an Internal Affairs Investigation involving appellant. He did so by delegation from the Health Care Manager (HCM) and the Regional Administrator.
Appellant did not report for work at Solano on September 11, 12 or 13, 2001. On September 13, 2001, the Employee Relations Officer (ERO) called appellant regarding his failure to report. He advised appellant that the HCM had directed that he tell appellant to report to the HCM at Solano until further notice. He also advised appellant that a failure to report would be grounds for punitive action.
Appellant testified he did not think that was right. Appellant subsequently demanded and received a written order from CDC to report to Solano. The Solano Regional Administrator issued a memorandum on September 21, 2001, directing him to report on Monday, September 24, 2001, at 8:00 a.m. to the Acting Chief Medical Officer (CMO) or the Chief Physician and Surgeon at Solano. She also discussed verbally with him that he should report on September 24, 2001. The memorandum did not reach appellant until Wednesday, September 26, 2001. Appellant reported to work at Solano on September 26, 2001.
Appellant worked his complete shift on September 26, 2001. After working his shift, he called Regional Administrator. He testified he told her something to the effect that the “place is a mess.” He also testified, she replied something to the effect of, “Cool it. We need to know what is coming out of San Quentin.” (This statement was not verified by the Regional Administrator. She was not called to testify.)
On October 2, 2001, respondent served appellant with a Notice of Investigatory Interview scheduled for October 4, 2001. Appellant and his representative requested a postponement to October 11, 2001. The postponement was granted. The interview took place on October 11, 2001, with both appellant and his representative present.
After September 26, 2001, appellant did not return to work at Solano. He did not call anyone to say he would not be returning. On October 15, 2001, appellant went back to work at Solano. He testified that he saw the Chief Physician and Surgeon on October 15, 2001. He testified that the Chief Physician and Surgeon asked him what he was doing at Solano; and he told him that the Regional Administrator told him he was to come to work there. Appellant also testified that the Chief Physician and Surgeon told him that the Regional Administrator had not informed him that appellant was coming to work on that date. (The statements appellant attributed to the Chief Physician and Surgeon were not verified. The Chief Physician and Surgeon was not called to testify.)
Appellant testimony implied that he believed that his services as a doctor were not needed at Solano. He testified that on October 15, 2001, he went to the Appeals Coordinator and volunteered to do appeals. He was provided with a number of appeals. He borrowed someone else’s computer and worked in a vacant office. When he reported to work again on October 16, 2001, appellant was informed that he was not authorized to use another employee’s computer.
Appellant did not come to work on October 17, 2001. He called and told the Appeals Coordinator he was ill. He did not call the CMO/HCM or his Regional Administrator to notify them he was ill and unable to work on that day. He testified that the Chief Physician and Surgeon had resigned at noon on October 16, 2001, so he would have been unavailable to take his call. He stated that he did not know who was the Acting Chief Medical Officer on that date, nor did he inquire as to who was serving in that capacity.
On October 18, 2001, appellant returned to work. He turned in completed appeals to the Appeals Coordinator. She gave him a few more appeals, and he completed those. Then he went home. He testified that before he left he informed the Appeals Coordinator he could not do any more work without a computer and a place to work. He did not advise anyone in his own chain of command in the Health Care Services Division (HCSD) that he was going home and not returning until certain conditions were met.
After October 18, 2001, appellant made no further efforts to report to work or notify anyone that he was not reporting to work. On November 1, he received a telephone call from the ERO. The ERO told him he was being rejected during his probationary period and automatically resigned by his appointing authority, CDC. The ERO then made arrangements for appellant to be served with the notices of rejection and resignation since appellant was still living on grounds at San Quentin at that time.

IV - REASON FOR BEING ABSENT

Appellant admitted that he did not report to work after October 18, 2001. The reasons he gave were that the Solano facility was in chaos and he perceived they had enough physicians. He also testified that he went home on October 18, 2001, because he was not provided with his own computer and office space, and that he told the Appeals Coordinator he was not going to return until they were provided.
There was no evidence that appellant made any effort to provide medical care to patients, gave medical services to patients or performed other related work under general direction from a CMO or Chief Physician or Surgeon (acting or otherwise) during the period October 15 through October 18, 2001, at Solano. There was also no evidence that handling appeals was part of his related duties.
Throughout his testimony, appellant referred to several conversations occurring between himself and staff from San Quentin, Solano and HCSD at headquarters, some of which have been referenced above. Those conversations occurred between September 10, 2001 and appellant’s resignation. Appellant’s representative did not call any of those staff members to testify and corroborated the statements attributed to them. Consequently, this uncorroborated hearsay was not considered for the truth of the matters stated therein. The testimony was considered for the purpose of establishing appellant’s state of mind (i.e. his discontent) over being reassigned to Solano while an internal investigation was being conducted, regarding, at least in part, his conduct towards the HCM while at San Quentin.
Appellant’s testimony clearly established that he was unhappy with being reassigned to Solano and with the circumstances surrounding his reassignment. It also established that he continued to condition his attendance at work upon being provided certain working conditions and equipment.

V - REASON FOR NOT OBTAINING LEAVE

Appellant admitted he did not report to work between October 23 and October 30, 2001. He admitted he never requested permission to be absent on any of those work days. Appellant claimed he did not notify anyone in his chain of command in HCSD because there was confusion over who was in charge of Health Care Services at Solano after the Chief Physician and Surgeon tendered his resignation at noon on October 16, 2001. He also testified that he believed the CMO/HCM, had been reassigned to division headquarters. He provided no explanation as to why he did not contact his Regional Administrator or the Assistant Deputy Director of Operations to find out of who was Acting CMO/HCM or Chief Physician and Surgeon at Solano and/or request permission to be off work.
Although appellant testified he told the Appeals Administrator he was going home on October 18, 2001, because he did not have a computer or office assigned to him, he did not request, nor was he granted, permission by her to be absent from work. Nor was she the appropriate person to grant him leave. From his own testimony at the commencement of the hearing, appellant was well aware of his chain of command, which was the CMO/HCM, his Regional Administrator and his Deputy Director.

VI - READY, ABLE AND WILLING

The parties stipulated appellant is 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 a request 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 he/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/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 the preponderance of the evidence that he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
Appellant challenged the jurisdiction of San Quentin to issue him a Notice of Automatic Resignation over the signature of the HCM, since at the time of his automatic resignation he had been placed on temporary reassignment to Solano. The ERO and Regional Administrator stated that both facilities consulted and made joint decisions regarding appellant’s temporary transfer and his rejection and automatic resignation from CDC.1 As set forth above, consistent with Coleman v. DPA, DPA is not charged with determining the propriety of CDC’s action in automatically resigning appellant.
At the time of the hearing, appellant was resigned from State service and seeking mandatory reinstatement. The parties stipulated appellant is ready, able and willing to return to work. Accordingly, in making a determination as to whether appellant should be mandatorily reinstated, the ALJ considered only whether appellant had a satisfactory reason for being absent from October 23 through October 30, 2001, and whether appellant had a satisfactory reason for not obtaining leave.
Appellant failed to prove by the preponderance of the evidence that he had a satisfactory reason for not reporting to work from October 23 through October 30, 2001. Appellant was not ill and was not otherwise unable to work. Appellant’s testimony proved that appellant was unwilling to come to work until his employer made certain changes in his work environment, including providing him with a computer and office.
An employer has a right to expect an employee to report for work unless the employee has been excused for illness or injury or for other non-medical reason. As set forth in Bettie Davis v. Department of Veterans’ Affairs (1986) 792 F. 2d 1111, 1113,
“an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency.”
Appellant also failed to prove by the preponderance of the evidence that he had a satisfactory explanation for not requesting permission to be absent from work from October 23 through October 30, 2001. Although appellant told the Appeals Coordinator he was leaving on October 18, 2001, and that he did not intend to work unless he was assigned his own computer and office space, he never requested permission to be absent from anyone in authority over him at CDC. Appellant’s claim that he was unable to contact anyone in his chain of command is incredible. He may not have known who was Acting CMO/HCM or Acting Chief Physician and Surgeon immediately following the October 16 resignation of the Chief Physician, however, appellant was certainly not without resources to contact his Regional Administrator or Deputy Director to notify them he was not coming to work or to find out to whom he should report his absence.
For the reasons set forth above, it is concluded that appellant should not be mandatorily reinstated to his prior position. Accordingly, the appeal should be denied.
Appellant retains permissive reinstatement rights to State service.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective October 22, 2001, is denied.
 
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FOOTNOTES

1. California Department of Corrections, not the particular facility, was appellant’s appointing authority.
 
  Updated: 5/29/2012
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