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DPA Case Number 04-A-0020 - Reinstatement After Automatic Resignation

DPA Case Number 04-A-0020 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: April 23, 2004
By: Michael T. Navarro, Director

DECISION

This matter was heard before Wesley M. Travis, Jr., Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. April 6, 2004, at Sacramento, California.
Appellant was present and was represented by Claire C. Iandoli, Staff Attorney, California State Employees Association.
Ron Cassidy, Staff Services Manager, 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 January 14, 2004, for being absent without approved leave from January 14, 2004 through January 30, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on February 18, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant claims she should be reinstated because she had a valid reason for being absent; she believed she complied with respondent’s requirements for approved leave; and, she was ready, able and willing to return to work.

III - REASON FOR BEING ABSENT

On December 18, 2002, appellant slipped and fell at work causing injury to her back, neck, and upper right shoulder. Her injury affected her ability to fully perform the duties required for her position as a toll collector. Appellant was assigned to modified duty while recovering and returned to full duty on August 8, 2003. On September 25, 2003, the pain in appellant’s back and shoulder returned and she was re-examined by her doctor. Her doctor recommended therapy and she was taken off work. Appellant provided medical evidence that she regularly attended therapy during her absence. Her doctor testified that appellant was receiving medical care during the relative time period. Appellant’s doctor also testified that she was cleared to work full time beginning on February 20, 2004. Thus, appellant proved by a preponderance of the evidence that she had a valid reason for being absent.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant contends that her doctor’s office was faxing Progress Reports to respondent during the relative time period apprising respondent of her medical and work status. She argues, therefore, that she fulfilled her obligation in notifying respondent and obtaining approved leave. However, the evidence clearly established that her doctor’s office was inconsistent in faxing the required documentation, and that appellant failed to personally notify her supervisor about her work status. Consequently, when the doctor’s office failed to send a fax regarding appellant’s status, respondent would have to contact appellant by telephone to obtain the information. Respondent informed appellant both verbally and in writing that it was her responsibility, not her doctor’s, to keep her supervisor informed of all doctor’s visits, appointments and work availability status.
On August 22, 2003, appellant’s first line supervisor a Toll Captain sent appellant a memorandum stating in relevant part: “I would like to remind you that it is your responsibility to keep you (sic) assigned bridge informed of all doctor visits, doctor appointments, and your work availability status. All doctor visit verifications and work status reports may be faxed or submitted in person.”
On November 29, 2003, appellant’s supervisor sent appellant a second memorandum stating in relevant part: “As always it is your responsibility to inform your assigned bridge of all doctor appointments, doctor visits, and your work status. All doctor visit verifications and work status reports are to be submitted immediately upon conclusion of the visit to the Richmond-San Rafael Bridge. The doctor visit verification and/or work status reports may be faxed ([number omitted]) or submitted in person.”
On December 31, 2003, appellant’s second line supervisor sent her a third memorandum stating in relevant part: “It is YOUR RESPONSIBILITY as an injured employee to keep your assigned bridge informed of your doctor appointments and your work status after your doctor appointments. It is not our responsibility to call you or your doctor’s responsibility to keep us informed of your work status.... This letter is to advise you that the Richmond/San Rafael Bridge supervisors will no longer call you to remind you that you have not fulfilled your duty to promptly inform your supervisors as to your current work status and future doctor appointments... Failure on your part to immediately inform your supervisors at the Richmond/San Rafael Bridge of your work status following a doctor visit may result in your being reported as AWOL... Your next doctor appointment is scheduled for Wednesday January 14, 2003, no time given. The work status report from that doctor appointment should be delivered to us no later than 5 PM that day... Please remember that it is your responsibility, and yours alone, to keep us informed of your work status and future doctor appointments. We will no longer call and remind you that you have not furnished the required documentation.” (Emphasis in the original). Neither appellant nor her doctor’s office notified or delivered a work status report to respondent following appellant’s January 14, 2003 doctor’s appointment.
As stipulated by the parties, the December 31, 2003 memorandum was sent Certified Mail to appellant’s official mailing address on file with respondent. Appellant testified that she did not sign the certified mail receipt for the memorandum. She contends that her grandfather, who has Alzheimer’s disease, signed for her and placed the memorandum on a shelf. Appellant testified she did not discover the memorandum until February 13, 2004. However, appellant presented no corroborating evidence that her grandfather signed the return receipt; that he has Alzheimer’s disease; that the memorandum was misplaced; or that she found the memorandum over two months after it was delivered.
Given respondent’s numerous verbal and written warnings, admonishing appellant that it was her sole responsibility to provide doctor visit verifications and work status reports, and her doctor’s history of inconsistency, appellant’s continued reliance on her doctor’s office to provide respondent with the required documentation for approved leave was unjustified. Therefore, appellant failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining approved leave.

V - READY, ABLE AND WILLING

Appellant’s doctor testified that she was ready, able and willing to return to work. However, since appellant did not provide a valid reason for not obtaining approved leave, her ability to return to work is not relevant.
 
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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. 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 that she had a valid excuse for being absent and that she was ready, able and willing to return to work. However, she failed to prove by a preponderance of the evidence that she had a valid reason for not obtaining approved leave.
Initially, respondent approved appellant’s leave by accepting faxed verification of appellant’s medical and work status directly from appellant’s doctor. However, because her doctor’s office was inconsistent in providing timely medical verifications and work status reports, respondent notified appellant by memorandum on August 22, 2003, November 29, 2003 and December 31, 2003, in addition to verbal admonishments, that it was her sole responsibility to personally provide timely medical verifications and work status reports. Appellant was adequately warned that noncompliance with her duty to provide her work status following a doctor’s visit may result in her being reported AWOL. Appellant’s continued failure to heed respondent’s clear and numerous admonitions was unjustified. Also, appellant’s argument that she should not be held accountable because her doctor’s office negligently failed to timely provide the required documentation for approved leave, and that she failed to receive one of respondent’s admonishing memorandums is unpersuasive and unsupported by the evidence.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective January 14, 2004, is denied.
  Updated: 5/21/2012
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