print logo
Main Content Anchor

DPA Case Number 05-I-0027 - Reinstatement After Automatic Resignation

​DPA Case Number 05-I-0027 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 24, 2005
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 June 15, 2005, at Riverside, California.
Appellant was present and represented by George Steele, Disabled Veterans Representative, Governor’s Committee on Aid to Handicapped.
Janice M. Snyder, Staff Counsel, represented the Department of Health Services (DHS), 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 January 11, 2005, for being absent without approved leave from January 12, 2005, through February 10, 2005. Appellant filed a request (appeal) for reinstatement after automatic resignation on February 16, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant requested reinstatement because she argued she was ill during the period she was charged with being absent without leave; she was not given clear instruction regarding the procedure she needed to follow to obtain leave; and she is currently ready, able and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant testified she was unable to work from January 12 through February 10, because she suffered from depression. Appellant testified her depression began in December 2004. She testified she was not able to get out of bed and found it hard to even get up to go to the bathroom. She testified she was tearful, had poor judgment, and contemplated suicide.
She originally sought treatment for this condition from a psychologist in the Employee Assistance Program (EAP). The psychologist recommended she get medication. On or about December 13, 2004, appellant was evaluated at Kaiser and medication was prescribed for her. She enrolled in group therapy sessions. It is unknown how long appellant participated in these sessions.
Appellant presented three “Kaiser Permanente Documentation of Medical Impairment” (DMI) forms that she testified she received from the medical personnel conducting the therapy sessions. These documents indicate the appellant was completely unable to work through January 10. Appellant provided these three documents to respondent.
At hearing, appellant presented a fourth Kaiser Permanente DMI form dated February 12 which indicates the appellant was seen on that day. This is a Saturday.2 Unlike the other three DMI forms, this one records that the “employee states” the “date of injury/date illness began,” was January 5. Unlike the other three DMI forms, this form does not clearly indicate appellant was completely unable to work. The information in (b) the “Off Work” section is not fully completed, but it does indicate a period of 39 calendar days starting with “1-5-2005.” The form also states the appellant can return to work on Monday, February 14. This was the first work day following the February 12 doctor’s visit. Appellant did not provide this document to respondent prior to the hearing.
No medical provider was called to testify. There was no testimony explaining why the note dated February 12 indicated appellant was excused from work for a period before appellant saw the doctor she testified completed this form. There was no medical evidence that appellant saw any health care provider between January 11 and February 10. Appellant failed to prove she had a valid reason for being absent from January 12 through February 10.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant contended she believed she was on approved disability leave and that she didn’t need to call her employer on a daily basis. She further alleged that respondent failed to provide her with adequate information on how to obtain leave and that respondent failed in its duty to ensure appellant understood the information it did provide to her regarding various leave options.
On some days, prior to December 17, 2004, appellant called another supervisor she believed was assuming some of appellant’s supervisor’s duties, to report she would be absent because she was ill. On at least one occasion she reported to the other supervisor that she was depressed and she was seeking psychological help.
Appellant’s supervisor called her on December 17, 2004. On that day, her supervisor told appellant she needed to provide doctor’s notes for her absence and she needed to call if she was not going to be at work. On or about December 23, 2004, the other supervisor called appellant and asked her for medical verification to substantiate her absence. Appellant got the required medical verification and faxed it to the other supervisor the same day. Appellant also provided respondent with two other medical documents in December 2004 that substantiated her need to be absent through January 10.
On December 28, 2004, appellant was mailed information and forms to apply for leave under the Family and Medical Leave Act (FMLA), Non-Industrial Disability Leave (NDI), and catastrophic leave. A call to appellant was made on January 5 to confirm appellant’s receipt of these forms.
Appellant failed to follow her supervisor’s instructions to submit medical documentation for her absence. She failed to call to report her absence from January 12 through February 10 – the period during which she had not provided medical certification of her inability to work.
Appellant also failed to request leave even though she had received information and forms to do so. Although she argued she didn’t understand the required procedures, she also testified she had received NDI previously. There was no evidence appellant asked any questions about the leaves even though the call appellant received was specifically regarding the leave information. There is no statute or case law that imposes a greater duty on respondent in regard to appellant’s application for leave. Appellant failed to provide a valid reason for not obtaining leave.

V - READY, ABLE AND WILLING

Appellant contended she is ready, able and willing to return to work.
 
* * * * *

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 failed to prove she had a valid reason for being absent and a valid reason for not obtaining leave. A doctor’s verification of an absence based on appellant’s self diagnosis before the date the doctor saw the patient is an insufficient basis on which to conclude appellant’s illness required her to be absent from work.
Appellant failed to follow her supervisor’s instructions to call to report her absence and/or provide a timely medical verification of her need to be absent from January 11 through February 10.
Furthermore, appellant’s argument that she did not apply for leave because she did not understand the process is simply not credible based on her previous leave experience and her own failure to inquire.
Appellant is ready, able and willing to return to work.
 
* * * * *

WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective close of business January 11, 2005, is denied.
 
* * * * *

FOOTNOTES

1. All dates are 2005 unless otherwise indicated.
2. Pursuant to Evidence Code section 452, the ALJ takes official notice of the days of the week in February 2005.
 
  Updated: 5/21/2012
One Column Page
Link Back to Top