Final Non-Precedential Decision Adopted: December 2, 1998
By: K. William Curtis, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 11:30 a.m. on September 22, 1998, and 11:30 a.m. on November 18, 1998, at Oceanside, California.
Appellant was present without representation.
Michael Cayaban, Labor Relations Counsel, DPA represented the Water Resources Control Board (WRCB), respondent.
Evidence having been received and duly considered, the Hearing Officer makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Appellant automatically resigned effective July 7, 1998. He filed a request (appeal) for reinstatement after automatic resignation on July 23, 1998. The appeal complies with Government Code section 19996.2.
The first day of hearing was continued to allow appellant time to obtain counsel. Appellant did not obtain counsel but chose to go forward without representation on November 18, 1998.
II - CAUSE FOR APPEAL
Respondent notified appellant in writing on or about July 23, 1998, that effective July 24, 1998, he would be considered to have automatically resigned on July 7, 1998, based upon his absence without approved leave from July 7 through July 17, 1998. Thereafter, appellant filed his request for reinstatement with DPA claiming he had a satisfactory reason for being absent without approved leave.
III - REASON FOR BEING ABSENT
It was undisputed for the purpose of this proceeding that appellant's treating physician determined he was suffering from depression and treated him with antidepressant medication and psychotherapy for the period including July 7 through July 17, 1998. Appellant was on sick leave until January 6, 1998. He was on Nonindustrial Disability Insurance (NDI) from January 6, 1998 through July 6, 1998, when his claim was exhausted.
On October 15, 1998, appellant was found to be retroactively entitled to Industrial Disability benefits. The period of entitlement was not indicated on the record.
IV - REASON FOR NOT OBTAINING LEAVE
On or about March 24, 1998, appellant and respondent were notified in writing by the Employment Development Department that appellant’s claim for NDI benefits would expire July 7, 1998. Appellant did not return to work after that date and took no steps to notify his employer when and if he would return.
Appellant did not provide his employer with timely medical substantiation to support a leave of absence for the period after July 7, 1998. He stated the reason was that they never asked for it.
Upon cross examination, appellant vaguely recalled speaking with his last supervisor in March or April 1998 regarding a work matter (his computer passport) and telling him he was not released to work. However, he admitted he did not request an extended leave of absence for the period after July 7, 1998, from his supervisor.
V - READY, ABLE AND WILLING
Appellant testified his psychiatrist released him to work so long as he had a job which had nothing to do with a former position supervisor or an Assistant Executive Officer for the Los Angeles Regional Water Board.
Appellant also testified that even if his psychiatrist released him, he was neither willing nor able to work for the former supervisor or Assistant Executive Officer.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE HEARING OFFICER MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the Department of Personnel Administration.
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.”
In 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 the 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.
In this case the parties agreed that appellant had a medical reason for being absent from work between July 7 and July 17, 1998. However, appellant did not present a satisfactory explanation as to why he did not contact his employer and request a medical leave of absence after July 7, 1998. He did not present his employer with medical substantiation to support a medical leave of absence after July 7, 1998 either.
Appellant admitted he is not willing to return to his former position. Whether or not he is medically able was not proved.
Accordingly, it is concluded that appellant’s appeal should be denied based on his failure to prove that he had a satisfactory reason for not obtaining leave and his failure to establish he is ready, willing and able to return to his former position.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective July 7, 1998, is denied.
