DPA Case Number 05-H-0025 - Reinstatement After Automatic Resignation
Final Non-Precedential Decision Adopted: February 6, 2006
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 January 24, 2006, at Sacramento, California.
Appellant, was not present. He was represented by Jay Dyer, Attorney, Service Employees International Union (SEIU). Mr. Dyer had appellant’s authority to proceed in appellant’s absence.
Craig A. Seminoff, Staff Counsel, represented the Department of General Services (DGS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION AND PROCEDURAL HISTORY
On January 27, 2005, respondent notified appellant he was being automatically resigned effective February 17, 2005, for being absent without approved leave from January 18 through January 25, 2005. On February 17, 2005, SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf. The appeal complies with the procedural requirements of Government Code section 19996.2.
The hearing of this matter was originally set for May 3, 2005. Appellant requested and was granted a continuance. The hearing was rescheduled for July 6, 2005. On July 5, 2005, appellant’s representative served written notice withdrawing appellant’s appeal. DPA closed the case. Appellant filed for reconsideration on August 4, 2005. DPA granted reconsideration on August 23, 2005. A hearing was set for September 8, 2005. Appellant requested a continuance of this hearing based on unavailability of an expert witness. The continuance was granted. The hearing was rescheduled to January 27, 2006 by agreement of the parties.
II - CAUSE FOR APPEAL
Appellant argued he had a valid excuse for being absent because he was seeking treatment for his alcoholism. He argued he had a valid reason for not obtaining leave because his alcoholism is a serious health condition which was known by his employer. He argued his employer was obligated to give him leave and/or allow him to use his leave credits instead of automatically resigning him. He further argued he is ready, able, and willing to return to work.
III - FACTS
The relevant facts are not in dispute. Appellant is an alcoholic. He successfully completed a residential in-patient treatment program in 1997 prior to being employed by DGS. He remained sober until on or about October 26, 2004. On that day appellant was informed he was being reassigned from the Education Building to the Board of Equalization Building. This notification caused appellant to begin drinking.
October 26, 2004 was the last day appellant worked for the DGS. Between October 26, 2004 and January 18, 2005 appellant submitted two doctor’s notes that excused him from work. The first slip submitted in early November was issued by appellant’s physician at Kaiser. It excused appellant from work so that he could stay off his feet because of a foot infection. The second slip was issued by someone other than appellant’s physician. It was unclear what reason was given for appellant’s absence on the second medical excuse.
In mid-November appellant told respondent he could not come into work because he was drinking. Respondent referred appellant to the Employee Assistance Program (EAP). The EAP referred appellant to Kaiser. Appellant informed his employer he had an appointment with his doctor on December 27, 2004. Appellant believed he needed treatment at a residential, in-patient facility. Kaiser did not have such an in-patient program. Appellant needed a free program because he had no income. At some point during this period, appellant began attending Alcoholics Anonymous (AA) meetings. He also became homeless.
In early to mid-November 2004, appellant attempted to return to work. He was sent home because he could not walk steadily and he smelled of alcohol. Appellant attempted to return to work again in late November and again on December 7, 2004. On both occasions he was sent home because he had trouble walking and smelled of alcohol.
Respondent sent appellant a letter in early December 2004 telling him he may have a serious health condition that qualified for leave under the Family Medical Leave Act (FMLA). Respondent included the documents that appellant needed to submit to obtain FMLA leave. Respondent never received any completed forms requesting leave under the FMLA or any other statute.
The last doctor’s note appellant submitted to respondent indicated appellant could return to work on January 18, 2005. Appellant did not return to work on January 18, 2005 and he did not call his employer to report his absence.
Appellant did not report to work on January 19, 2005. He left a voicemail message saying his physician was on vacation. Appellant said he would call back later. Appellant did not call back on January 19, 2005. Also on January 19, appellant and his second level supervisor met by chance on a downtown street. Appellant told his second level supervisor he would return to work the next day. Appellant also apparently told his second level supervisor he was still drinking. The second level supervisor told appellant to get help and referred appellant to the EAP.
Appellant did not come to work on January 20, 2005. He called his second level supervisor and told him his doctor would e-mail him “the paperwork.” It is unclear what appellant meant when he referred to “the paperwork.”
Appellant did not come to work on January 21, 2005. At midnight, he left a supervisor a message saying he was still waiting for his physician to return from vacation.
Appellant did not report to work and did not call respondent on January 24, 2005, his next scheduled work day.
On January 25, 2005, appellant called his second level supervisor and said he would be returning to work that evening. Appellant did not report to work on January 25, 2005.
Respondent never received medical documentation from his physician or any other physician indicating appellant could not return to work between January 18 through January 25, 2005.
On January 27, 2005, respondent notified appellant he was being automatically resigned effective February 17, 2005.
Appellant saw his physician in April 2005. Appellant’s physician diagnosed appellant as having alcoholism as a serious health condition. At some point after the automatic resignation, appellant enrolled in and completed an in-patient alcoholism recovery program.
IV - REASON FOR BEING ABSENT
It was undisputed appellant was absent from work from January 18, 2005 through January 25, 2005 because he was drinking and laboring under the effects of alcohol. Appellant argued he was absent during this period because he was waiting for his doctor to return from vacation to obtain assistance with his alcoholism. There was no evidence appellant actually received treatment for alcoholism between January 18 and January 25, 2005. There was no evidence regarding what steps, if any, appellant took to obtain treatment during this period.
V - REASON FOR NOT OBTAINING LEAVE
Appellant argues he was illegally denied leave. He argued that because respondent was aware of his alcoholism, it was obligated to grant appellant FMLA leave and/or allow appellant to use vacation or sick time. He also argued that his alcoholism colored his judgment and ability to seek leave.
VI - READY, ABLE, AND WILLING
Appellant contended he was ready, able, and willing to return to work. This was undisputed.
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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 had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.
- Appellant failed to prove he had a valid reason for being absent and a valid reason for not obtaining leave. His argument that his alcoholism automatically validates his absence and requires leave is without merit. While alcoholism may be a serious health condition under the FMLA, the statute does not require an employer to grant leave time to an employee who is absent because he was drunk. “. . .[A]bsence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.” (29 CFR 825.114)
Appellant’s contention that he was waiting for his doctor to return from vacation to get treatment is unpersuasive. It is inconceivable that appellant through due diligence was unable to see a physician until April 2005 when he finally saw his physician. He knew he could contact another physician to obtain an off-work order. Indeed he saw two different physicians to secure leave prior to January 18, 2005. Appellant knew he needed to provide medical substantiation to secure leave. He made contact with supervisors between January 18 through January 25, 2005 assuring them he would send information and/or report to work. He did neither. There was no evidence appellant made any attempt to secure treatment during the relevant period.
Respondent sent appellant the required documentation to obtain leave and referred him to EAP on at least two occasions prior to January 18, 2005. Respondent was not obligated to do more by automatically granting appellant leave.
Appellant’s contention he is ready, able, and willing to return to work was undisputed.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation from the position of Custodian effective February 17, 2005, is denied.
