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DPA Case Number 02-S-0058 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 24, 2002
By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on September 30, 2002, at Riverside, California.
Appellant was present and was represented by Jill Middleton, Labor Relations Representative, California State Employees Association (CSEA).
Jeanell Bradley, Staff Services Manager I, represented the Department of Transportation (CALTRANS), 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 April 12, 2002, for being absent without approved leave from April 15 through April 25, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on May 3, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant contends he should be reinstated because he had a satisfactory reason for being absent and for not obtaining leave. The parties stipulated appellant is ready, able, and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant fell and hit his head in the shower at approximately 6:00 a.m. on Monday, April 15, 2002.1 He began to feel sick, took medication, and went to sleep until approximately 2:00 p.m. When he awoke, his neighbor insisted he go to Kaiser’s emergency room. His neighbor drove him to the emergency room. Sometime after 5:00 p.m., he saw an emergency room physician who diagnosed him as having “head trauma.” Appellant was taken off work for two days, and he was told to return to see a doctor in three days.
Appellant returned to Kaiser and saw a doctor on April 18. He was still having symptoms. The doctor prescribed rest and medication and took appellant off work until Monday, April 29.
Appellant saw a doctor again on April 26. He was released to return to work on this day.
Appellant had a satisfactory reason for being absent from April 15 through April 25.

IV - REASON FOR NOT OBTAINING LEAVE

In or about January 2001, appellant’s supervisor gave him a copy of the “Construction Administration Support Operation Work Plan.” This plan outlines the procedures employees must follow when they are going to be absent because of illness or if they are going to be late. It states in relevant part:
“.... Employees must call me in person for sick leave or coming in late. If I am unavailable, leave message on my voice mail with your phone number. Your call must be received no later than 8 AM.” (Bold in original.)
The supervisor discussed these requirements with appellant. Appellant could not recall seeing the work plan document, but he did recall being instructed to call his supervisor or another staff member if he was not coming to work because of illness.
Appellant called his supervisor on April 15 before 6:30 a.m. She was unavailable. Instead of leaving a voicemail message for her, he talked with an Office Technician. Appellant testified he told the Office Technician he hit his head and would not be coming to work. The Office Technician sent an e-mail message to the supervisor saying, “[name omitted] will be in at 11:00 today.” The Office Technician was not called to testify.
Appellant called his supervisor on April 16 at approximately 7:26 a.m. He left her a voicemail message. Appellant testified he reported he hit his head and he had a doctor’s note saying he was unable to work. He also testified he “didn’t think” he left any information regarding his release date. The supervisor testified that appellant’s April 16 voicemail message indicated appellant was going to be released to return to work on April 16. Appellant did not report to work on April 16, 17, or 18 and he did not call his supervisor.
At approximately noon on April 18, the supervisor called appellant. She talked to his wife because appellant was sleeping. The supervisor asked appellant’s wife about appellant’s condition. The supervisor told appellant’s wife that his April 16 message was unclear. Appellant’s wife told the supervisor appellant hit his head on the shower. Appellant’s wife also testified she told the supervisor appellant was able to return to work “a week from Monday.” The supervisor testified appellant’s wife told her appellant was going to return to work “on Monday.” The supervisor did not tell appellant’s wife to have appellant contact her. The supervisor also did not tell appellant’s wife to have appellant send medical documentation to verify his absence and/or his anticipated date of return to work.
Appellant testified he was going to call his supervisor on April 18 after he went to the doctor. After returning from the doctor, appellant gave his wife a copy of the doctor’s note taking him off work until April 29. Instead of calling his supervisor, appellant went to bed because his head hurt. When he awoke, his wife told him his supervisor had called. Appellant’s wife also told him she had notified his supervisor that he would not be coming to work until “a week from Monday.”
Appellant did not call his supervisor after this and he did not send in medical verification that he was unable to return to work until April 29. Respondent mailed the notice of automatic resignation to appellant on April 26.

V - READY, ABLE AND WILLING

The parties stipulated appellant 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 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 a 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 proved by a preponderance of the evidence he fell and sustained a head injury on April 15 which prevented him from working during the relevant period. Appellant obtained medical care multiple times during the time he was off work. His testimony was corroborated by medical documentation and by his wife’s testimony. Appellant had a valid reason for being absent from work.
Appellant also proved by a preponderance of the evidence he had a valid reason for not obtaining leave. Appellant believed respondent had been adequately notified of his inability to work during the relevant period. He attempted to call his supervisor immediately after his accident on April 15. When he could not reach her, he called a co-worker. Even if the evidence could show he originally stated he would come in at 11:00 a.m., his failure to report to work or to contact his supervisor personally is understandable given the nature of his injury and the fact he fell asleep until around 2:00 that afternoon and then was taken for medical treatment.
Appellant did leave a voicemail message for his supervisor on April 16. Although his supervisor did not completely understand the message, she did not attempt to contact appellant until two days later on April 18. Appellant had no way of knowing his message was unclear until that date.
On April 18, appellant’s wife told him his supervisor had been notified he was unable to work until “a week from Monday.” The supervisor did not tell appellant’s wife that appellant needed to call her or that he needed to submit medical verification prior to coming to work. The supervisor did not tell appellant’s wife that appellant’s leave was not approved. The guidelines appellant was issued in January 2001 do not require him to call in on a daily basis nor do they require him to provide medical verification prior to returning to work.
Appellant reasonably believed respondent knew he would not be returning to work until April 29. Appellant had no reason to believe respondent was not approving his leave for this period. Appellant had no reason to believe he was expected to be at work on April 22 or that he needed to contact his supervisor before April 29. Appellant should not be penalized for any miscommunication between his wife and his supervisor. Appellant had a satisfactory reason for not obtaining leave.
The parties stipulated appellant was ready, able, and willing to return to work. Accordingly, appellant should be mandatorily reinstated to his prior position in the Irvine Office.
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective April 12, 2002, is granted.
 
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FOOTNOTES

1. All dates are 2002 unless otherwise indicated.
 
  Updated: 5/22/2012
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