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DPA Case Number 02-R-0103 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: January 15, 2003
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 November 1 and 2, 2004 and January 20, 2005, at Sacramento, California.
Appellant was present and was represented by Jay Dyer, Attorney, Service Employees International Union (SEIU).
Jennifer Gittisriboongul, Senior Staff Counsel, represented the Department of Fair Employment and Housing (DFEH), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - PROCEDURAL HISTORY AND JURISDICTION

Respondent automatically resigned appellant effective August 28, 2002, for being absent without approved leave from August 21 through August 27, 2002.
California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation only if the employee files a request (appeal) for reinstatement within fifteen (15) days after service of the Notice of Automatic Resignation, unless the employee was not served with a written notice. Allowing an additional five days for mailing, appellant had until close of business September 16, 2002 to file her appeal.
The California State Employees Association (CSEA), which is now incorporated into the SEIU, filed a request (appeal) for reinstatement after automatic resignation on September 18, 2002. The appeal was untimely because it was more than 20 days after service of the notice.
DPA Rule 599.904 states that upon good cause being shown, DPA may allow an appeal to be filed within thirty (30) days after the end of the period in which the appeal should have been filed. Appellant's appeal was filed within the requisite 30 days. Accordingly, a jurisdictional hearing was held on December 23, 2002.
On January 15, 2003, DPA issued its decision dismissing the appeal because appellant did not have good cause for late filing. Appellant appealed DPA's decision to the Sacramento County Superior Court. The Court issued a decision on March 11, 2004 remanding the case to DPA for further proceedings.
Respondent filed a Motion to Dismiss appellant's appeal for reinstatement on June 7, 2004. Respondent argued the case should be dismissed based on res judacata because all issues had been decided by the Superior Court. DPA denied respondent's motion.
Pursuant to court order, a hearing was held on June 22, 2004 and July 16, 2004, before ALJ Wesley M. Travis. At the July 16 hearing, ALJ Travis informed the parties that he had returned to his previous position as an attorney with the California Department of Corrections. Based on this disclosure, the parties requested the hearing be rescheduled with DPA's other ALJ.
A hearing on the merits was held before DPA's ALJ Linda A. Mayhew on November 1 and 2, 2004, and January 20, 2005.

II - CAUSE FOR APPEAL

Appellant alleged she had a valid reason for being absent because she was ill. She contended she had a variety of valid reasons for not obtaining leave. She alleged she did not obtain leave because she relied on respondents past practice of not charging her with being absent without leave (AWOL). She also contended respondent wanted "to get rid of her" and changed its past practice without notice or ensuring that she understood the difference between being docked and being absent without leave. Appellant also argued that she complied with the spirit of her attendance restrictions by calling respondent and providing medical information. She further argued she should not have been required to obtain leave because her attendance restriction was in violation of the Collective Bargaining Agreement (CBA) between the State and CSEA, appellant's exclusive bargaining representative at the time of this dispute. Appellant testified she is ready, able, and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant had a history of illness dating back to 1999 when she was treated for depression. She last worked for respondent on August 1, 2002. Between August 2, 2002 and August 20, 2002, she reported she was unable to work for a variety of reason. She submitted faxed documents to respondent informing them she was released to return to work on August 20, 2002.
Appellant testified she was absent from August 21, 2002 through August 27, 2002 because she was being treated for chronic depression. In support of her testimony, she offered three "Department of Fair Employment and Housing Certification of Health Care Provider CFRA" forms ("CFRA form(s)") which were dated August 20, 2002, August 21, 2002, and, September 6, 2002 respectively.
These CFRA forms do not provide authority for appellant to be absent. They are ambiguous at best. No medical provider was called to clarify the CFRA forms or appellant's alleged complete inability to work from August 21, 2002 through August 27, 2002. Appellant failed to prove she had a valid reason for being absent during the charged period.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant alleged she did not obtain leave because she relied on respondent's past practice of not charging her with being absent without leave when she had been absent in the past. She argued appellant unfairly discontinued this practice and should have granted her leave because she attempted to comply with the "spirit" of the leave restrictions that had been unlawfully placed upon her in violation of the relevant CBA. She argued respondent "wanted to get rid of her" and there was nothing she could have done to obtain leave.
Appellant's arguments are without merit. Although respondent had docked appellant and had allowed her to use various types of leave to cover some past absences, there was no evidence that respondent had permitted appellant to be absent for five consecutive days without submitting substantiating medical information when she was requested to do so. In addition, the evidence shows appellant had not always approved appellant's absences. Appellant had been charged as being absent without leave (AWOL) on at least 14 different dates between March 15, 2001, and August 1, 2002.
Respondent notified appellant on December 4, 2001, July 31, 2002, and August 1, 2002 she could be charged with being AWOL and that she could be terminated as a result of being AWOL for five consecutive days. On at least two occasions, appellant's supervisor provided appellant with a memorandum outlining the attendance restrictions. The supervisor discussed each paragraph of the memorandum with appellant.
A December 4, 2001 "Attendance Restriction Policy" memorandum stated in relevant part:
"1. All sick leave absences for yourself or eligible family members will require substantiation in writing and signed [sic] by a physician or licensed practitioner. All absence substantiation must a) be obtained at the first day of your absence and faxed to me by your doctor's office; and b) confirm that you are unable to work for the period of your absence.
2. Absences not fully documented will be considered absence without leave (AWOL), and your pay will be reduced accordingly. Five (5) consecutive days of AWOL could be grounds for termination. AWOL or unapproved absences reported after the monthly cut-off will delay the issuance of your monthly salary (warrant).
3. All use of vacation, CTO or 'comp time' must be approved by me in writing at least 48 hours (2-days) in advance.
4. Vacation, Personal Holiday, Holiday Credit or Compensating Time Off (CTO) time may not be substituted for sick leave.
5. Make-up time will not be allowed for work time missed."
The policy also incorporated the non-conflicting terms of a March 23, 2001 Time and Attendance Reporting Memorandum. Among other things, the March 23, 2001 memorandum required appellant to talk to her supervisor personally to report absences. If appellant was too ill to call herself, she was instructed to have a family member call and personally speak with her supervisor.
Respondent gave appellant a second attendance restriction memorandum on August 1, 2002. The terms of the August 2002 restriction policy are essentially the same as those appellant previously received on December 4, 2001. Appellant was reminded she had to provide substantiation in writing which was signed by a physician or licensed practitioner that confirmed she was unable to work for the period of her absence. She was also reminded that absences not fully documented would be considered AWOL and that her pay would be reduced. Respondent also reiterated that five consecutive days of AWOL could be grounds for termination.
Appellant did not return to work after receiving the August 2002 attendance restriction memorandum. Appellant unreasonably concluded that respondent would not enforce the terms of the attendance restriction she had been given only the day before she did not report to work.
Appellant's arguments that she complied with the "spirit" of her attendance restrictions and that she did everything she could to comply with these restrictions are also without merit. Appellant did not communicate with her supervisor to inform her she would not be at work. On August 19, 2002, appellant spoke with her supervisor and told her she would let her know whether or not she would be able to return to work after her doctor's appointment on August 21, 2002. Appellant did not call her supervisor to inform her of her work status on August 21, 2002. Appellant did not report her absence to her supervisor personally between August 21, 2002, and August 27, 2002 as previously instructed. On August 26, 2002 appellant called the personnel analyst. The personnel analyst told appellant to call her supervisor. Appellant did not call her supervisor on August 26, 2002. On August 27, 2002, appellant left a voicemail message for her supervisor after work hours at 7:21 p.m. The supervisor did not receive the voicemail message until September 4, 2002 because she was on vacation.
Appellant also did not provide the required documentation to substantiate her absence prior to receiving notice she was AWOL. On August 26, 2002, appellant told the personnel analyst that the doctor had completed the "FLMA" form on that date and that she would bring it to her that afternoon. Appellant did not bring the "FMLA" form to the personnel analyst. Appellant did not provide to respondent or at hearing any form that was completed by a doctor and dated August 26, 2002.
Although appellant may have had a typed CFRA form as early as August 20, 2002, she made no effort to provide it to respondent until August 27, 2002, when she mailed it to respondent via Federal Express. She offered no evidence why she did not provide the form earlier even though she knew it was required and she knew she may not be granted leave without medical substantiation.
As of close of business August 27, 2002, respondent did not have medical substantiation of appellant's inability to work from August 21, 2002 through August 27, 2002. As of close of business on August 27, 2002, appellant had not communicated directly with her supervisor to provide an update on her medical status. Although appellant had indicated she would provide the required documentation, she did not do so. Appellant's reliance on an ambiguous CFRA form which she alleged she presented at the Coleman Hearing and which was dated after she learned she was automatically resigned does not alter the analysis. Appellant did not comply with the "spirit" of the attendance restrictions and did not do all that she could to obtain leave.
Appellant further failed to prove that respondent maliciously refused to grant her leave and instead invoked an automatic resignation because it "wanted to get rid of her." To the contrary, the evidence shows that respondent attempted to work with appellant on her absenteeism issues and attempted to contact Kaiser directly to obtain the required medical substantiation even though it is appellant's responsibility to do so. Appellant failed to prove any animosity between the parties which would even remotely support this allegation.
Appellant failed to prove she had a valid reason for not obtaining leave.

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. Therefore, DPA makes no finding regarding appellant's allegations that the automatic resignation was inappropriately taken because respondent allegedly violated the CBA.
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.
Appellant failed to prove by a preponderance of the evidence that she had a valid reason for being absent. The documents she provided at hearing to substantiate her inability to work were ambiguous at best. They do not substantiate appellant's absence between August 21, 2002, and August 27, 2002. No medical provider was called to clarify the documents or appellant's work status during the relevant period.
Appellant also failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave. She failed to explain why she did not call her supervisor to report her absence or why she did not provide the CFRA forms or other required documentation to respondent in a timely fashion.
Given appellant's failure to prove she had a valid reason for being absent and a valid reason for not obtaining leave, it is unnecessary to determine if she is ready, able, and willing to return to work.
All other arguments advanced by appellant are deemed without merit.
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective August 28, 2002, is denied.
  Updated: 5/22/2012
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