DPA Case Number 99-A-0045 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 30, 1999

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 6, and June 22 1999, at Sacramento, California.

Appellant was present and was represented by Kathleen O’Connor, Labor Relations Representative, California State Employees Association (CSEA).

Michael Kilpatrick, Senior 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.

Appellant was automatically resigned effective close of business March 4, 1999. She filed a request (appeal) for reinstatement after automatic resignation on March 25, 1999.

On the first scheduled day of hearing, May 6, 1999, appellant appeared without representation. She advised the ALJ that she was suffering from depression and requested a continuance in order to secure counsel. Based upon the circumstances of this case, appellant was granted a new hearing date of June 22, 1999, and advised no further continuances would be granted.

The appeal complies with the procedural requirements of Government Code section 19996.2.

Respondent notified appellant in writing on or about March 12, 1999, that effective April 20, 1999, she would be considered automatically (AWOL) resigned effective close of business March 4, 1999, based upon her absence without approved leave from March 5 to March 11, 1999.1 Appellant appealed on the grounds that she had a satisfactory reason for being absent and not obtaining approved leave and claimed she is ready, able and willing to return to work.

Appellant testified she was unable to work from March 5 through March 11, 1999, due to job stress. She suffered an upset stomach, lack of energy, headaches, cramps and bouts of crying. In support of her claim, appellant entered documentation and testimony from her treating physician for a number of years.

Appellant’s physician testified she examined appellant on March 11, 1999, and determined that she was tearful, depressed, non-functional and almost hysterical. She concluded appellant was depressed and unable to work that day. She also testified that appellant was treated for situational stress in February 1999. She could not recall the exact dates she saw the appellant and whether she or her assistant actually examined appellant between February 9, 1999, and March 11, 1999. The physician testified she was unable to determine whether appellant is currently able to return to work because she had not met with her since March 11, 1999.

Medical records established appellant was seen at the MedClinic, where the physician is employed on or about February 9, 1999, and that she was referred to a Licensed Clinical Social Worker and psychologist on or about February 1999. She was scheduled to see the psychologist on March 17, 1999. The physician was scheduled to reexamine appellant on March 8, 1999, and March 9, 1999, but was ill. The appointment was rescheduled for March 11, 1999.

Medical records also established that the physician concluded on March 11, 1999, based on the continuing course of treatment and appellant’s medical records, including records from a psychologist and another family practice physician that appellant was unable to work from January 29, 1999, at least through March 20, 1999, due to work-related stress.

Appellant was on approved leave from January 29, 1999, through March 4, 1999, based upon medical documentation from the second physician. The documentation established that the second physician examined her on February 18, 1999, diagnosed her with “situational stress” and excused her from work through March 4, 1999.

Appellant did not return to work on March 5, 1999. She scheduled a doctor’s appointment with her physician on March 8, 1999. Her physician was ill on March 8 and 9, 1999. The appointment was rescheduled for March 11, 1999.

Appellant testified that originally she did not realize the second physician's report only excused her from work through March 4 and she was expected to return to work on March 5. Therefore, she did not call and report her absence on March 5. On the following Sunday (March 7) she reviewed the April 23, 1999, status report from the second physician which indicated she was excused from work through March 4, 1999. On March 8, 1999, she called her work place at about 10:00 a.m. and spoke with her supervisor. She told her supervisor she had the same stress-related symptoms and was still unable to work. She also discussed with him the fact that the second physician's medical status report only excused her through March 4, 1999.

Appellant admitted she told her supervisor she was not going to the doctor until March 9, 1999. She also admitted he responded that she was considered absent without approved leave until she provided further substantiation for her illness.

On March 9, 1999, after her scheduled appointment, appellant called her supervisor’s boss because her supervisor was unavailable. She told him she was not able to work but that her doctor’s appointment had been canceled and rescheduled for March 10, 1999. She told him she would get another excuse at that time.

On March 10, 1999, she called her supervisor’s boss and got his voice mail. She left a message that her March 10th appointment was canceled and rescheduled for March 11th. She did not receive a call back. She made no other calls to her employer that day.

Appellant did not call her employer on March 11, 1999. She went to her doctor’s appointment. She obtained a work status report from her physician, which placed her off work until March 20, 1999. She did not submit the report to her employer and did not have it telefaxed by the doctor’s office on that day. Appellant testified she gave the work status report to her husband to deliver to her employer. (Appellant’s husband also works for DHS.) She claimed he delivered it on March 12, 1999, which was after the fifth day of AWOL.

Appellant admitted that she was aware of the requirements relating to reporting absences due to illness. On July 24, 1998, she had been issued an attendance restriction memorandum, which notified her that she was to report absences daily to her supervisor or another supervisor within ½ hour of her regular start time. It notified her that any failure to report in the first ½ hour would result in her being marked AWOL. It also notified her that all absences due to illness or medical appointment must be substantiated in writing by a medical professional.

Appellant did not provide a satisfactory explanation as to why she did not call timely each morning of her absence between March 5 and 11, 1999, and why she did not provide timely medical substantiation, particularly after being advised by her supervisor’s boss on March 9 that she was considered AWOL. Appellant claimed she was unable to obtain the report on March 9 or 10 because her physician was ill. However, appellant was also continuing to see the second physician who had provided the prior substantiation.

Appellant testified she is ready, able and willing to return to work. Appellant’s physician testified she could not make a determination as to whether appellant should be released to return to work without meeting and talking with her. It should be noted that on May 6, 1999, appellant claimed she was not able to proceed with the hearing because she was suffering from depression. Appellant made no efforts thereafter to be medically examined so that a determination could be made as to whether she was “able” to return to work.

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Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with 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/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 that 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 appellant provided a satisfactory explanation for her absence which was situational stress. Appellant's family physician testified appellant was unable to work from January 29, 1999, through at least through March 20, 1999. Appellant provided no reasonable explanation for not providing appropriate and timely leave substantiation to her employer. She also did not provide a satisfactory explanation for failing to comply with the reporting requirement that she call in each morning within ½ hour of her start work time. An employee who is off work for medical reasons for two months without a formal leave of absence cannot expect her employer to leave her position open indefinitely unless medical substantiation is provided to support the continuing absence.

Appellant provided no evidence that she is currently able to return to work. The evidence on the record is that she has a medical condition, stress or depression, which affects her ability to perform her job duties. Given the circumstances, even if appellant provided a satisfactory explanation for not obtaining approved leave, she would still need to prove her current ability to return to work, which she has not.

For the reasons set forth above, it is concluded the appeal should be denied.

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that the appeal for reinstatement after automatic resignation effective March 4, 1999, is denied.

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1. The notice read “The Department of Health Services (Department) has determined that you have been absent without leave from March 5, 1999 to March 11, 1999, a total of five consecutive working days." The five days included March 11, 1999.