DPA Case Number 03-W-0052 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 28, 2003

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on September 17, at Santa Barbara, California.

Appellant was present and was represented by Maureen Lynch, Labor Relations Representative, California State Employees Association (CSEA).

John Thepot, Staff Counsel, represented the Department of Social Services (DSS), respondent.

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

Respondent automatically resigned appellant effective May 20, 2003,1 for being absent without approved leave from April 28 through May 5. CSEA filed a request (appeal) for reinstatement after automatic resignation on May 18. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant claimed she had a valid reason for being absent, a valid reason for not obtaining leave, and that she is currently ready, able, and willing to return to work.

Appellant testified she was ill April 28 through May 5, the period she was charged with being absent without leave. She had not worked since October 30, 2002. Since that time, she was treated by numerous physicians for both physical and psychological problems. She submitted multiple absence verifications to respondent from various physicians excusing her from work throughout this period. Respondent accepted these absence verifications. Appellant was granted leave under the Family Medical Leave Act (FMLA) for a portion of the time she was absent.

At hearing appellant presented a physician’s note dated May 6 indicating appellant was temporarily disabled from April 22 through June 22. This corroborates appellant’s testimony she was unable to work. Appellant had a valid reason for being absent April 28 through May 5.

Appellant contended she complied with respondent’s requirements and past practice for obtaining leave. She argued it was respondent’s responsibility to contact her when she needed a physician’s note substantiating her inability to work and that respondent had an obligation to accept the documentation whenever she provided it.

Appellant was excused from work through January 8. Appellant was expected to return to work on January 9. She did not return to work on this day. On January 9, respondent sent appellant a letter advising her that she was expected to be at work and that she must provide additional medical substantiation by Monday, January 13, if she was unable to report for work. It also advised appellant that unapproved absences for a minimum of five consecutive workdays may constitute an automatic resignation under Government Code section 19996.2. The letter further notified her she was expected to report for work and have regular attendance; that it was her responsibility to call her supervisor within one-half hour of her start time to report that she would be absent; and that continued failure to report for work and/or submit medical substantiation may result in separation from State service. In response to this letter, appellant provided medical substantiation taking her off work from January 6 through March 3. This substantiation was faxed to respondent on Wednesday, January 15. Respondent accepted this documentation even though it was two days past the date on which appellant was originally ordered to provide it.

Appellant did not return to work on March 4. Appellant’s supervisor telephoned appellant’s sister to have appellant call her regarding her return to work. Appellant’s sister called the supervisor on March 7 telling her that a doctor’s note taking appellant off work was forthcoming. Appellant did not have a telephone.

Respondent next expected appellant at work on March 24. She did not return to work on this day. Respondent sent appellant a letter on March 25 advising her that because she had not called her supervisor to explain or seek approval for her absence and because she had not submitted further medical substantiation to cover additional absences, her absences on March 24 and 25 were not approved. Appellant was again reminded that unapproved absences for five consecutive days may constitute an automatic resignation from State service under Government Code section 19996.2. Appellant was also advised again that her continued failure to call her supervisor and failure to submit the required medical substantiation may result in a separation from State service. Respondent advised appellant she must call her supervisor immediately to obtain approval for her absences and that further medical substantiation must be received on or by Wednesday, March 26. In response to this letter, appellant arranged for medical substantiation be sent to respondent on March 27. The physician put appellant off work from March 26 through April 27. Respondent accepted this documentation even though it was submitted one day after the date on which appellant was ordered to provide it.

Appellant was scheduled to return to work on April 28. She did not return to work on April 28 or on any other day. She did not call her supervisor and no one called on her behalf. Appellant did not submit medical verification of her continuing need to be absent prior to notification that she was being automatically resigned.

At her Coleman hearing with respondent on May 22 and again during the instant proceeding, appellant presented a disability authorization from her physician indicating she was temporarily disabled from April 22 to June 22. Appellant argued she did not provide this medical substantiation to respondent before this date and she did not call her supervisor when she was absent because the May 5 notice of automatic resignation notified her of separation and did not tell her she must do so.

V -

Appellant’s testimony regarding her ability to return to work was ambiguous. At one point she testified her doctor released her to return to work on a part time basis. At another point, she testified she was “released to return to work.” At still another point, she testified that she and her doctor were “working on a plan” for her to return to work. She did not testify which doctor or doctors she was working with or which released her to return to work. Although appellant referred to a medical document in her possession that substantiated her testimony, none was presented that specifically addressed her ability to return to work or which clarified her testimony. No physician or other medical personnel were called to testify.

 

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

Appellant proved she was ill. Therefore, she had a valid reason for not reporting to work on April 28 through May 5. She did not prove she had a valid reason for not obtaining leave. Although respondent worked with appellant to allow her to obtain leave on at least two occasions, it simultaneously notified her in both its January 9 and March 25 correspondence that her continued failure to report to work, to call her supervisor and/or to submit medical substantiation of her continuing need to be absent may result in a separation from State service. Respondent specifically warned appellant on March 25 that five consecutive days of unapproved leave may constitute an automatic resignation. There was no credible evidence that appellant had any reason to believe that she would not be automatically resigned if she failed to follow the appropriate procedures for obtaining leave after March 25.

Although appellant testified she knew she had to submit medical substantiation to get approved leave, she allowed five consecutive days to lapse without contacting her supervisor or providing such substantiation. The responsibility for keeping the employer apprised of an employee’s work availability falls with the employee. There is no statutory or regulatory authority which shifts this burden to the employer.

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 reasons. As set for 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 a preponderance of the evidence that she was ready, able, and willing to return to work.

that the appeal for reinstatement after automatic resignation effective May 20, 2003, is denied.

 

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FOOTNOTES

1. All references are to the year 2003 unless otherwise indicated.