Final Non-Precedential Decision Adopted: July 8, 1999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 June 24, 1999, at Sacramento, California.

Appellant was present and was represented by Marguerite M. Malloy, his attorney. Also present was Stephen Booth, Director, Unit 12 Division, International Union of Operating Engineers.

Corinne Steinebel, Personnel Analyst, 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.

Appellant was automatically resigned effective close of business March 18, 1999. He filed a request (appeal) for reinstatement after automatic resignation on April 19, 1999. Although the appeal was untimely, good cause was found for a late-filed appeal. A letter decision issued May 24, 1999. The appeal complies with the procedural requirements of Government Code section 19996.2.

Respondent notified appellant in writing on or about March 25, 1999, that effective April 1, 1999, he would be considered automatically (AWOL) resigned on March 18, 1999, based upon his absence without approved leave from March 19 through March 25, 1999. Appellant appealed on the grounds that he had a satisfactory reason for being absent and a satisfactory reason for not obtaining approved leave. Appellant also claims he is ready, able and willing to return to work.

Appellant was scheduled to work Friday, March 19, and Monday through Thursday, March 22 through March 25, 1999. His work hours were midnight to 8:00 a.m.

Appellant testified he did not report to work on March 19, 1999, because of pain from a degenerative hip disease. On March 19, 1999, a physician at Kaiser Permanente examined him. The physician gave him a visit verification slip stating he was unable to work March 19, 1999.

Appellant did not return to work on his next scheduled workday, which was March 22, 1999.

Appellant testified he was unable to work March 22, 1999, because he was at Kaiser Permanente. He was given a second visit verification slip from a Kaiser Permanente physician stating he was unable to work from March 19 through March 22, 1999, because of alcohol detoxification.

Appellant did not report to work on March 23, March 24 and March 25, 1999. He did not provide any medical substantiation that he was unable to work on those dates. He testified he was unable to work because he was inquiring into detoxification programs (other than the Kaiser Permanente program).

Respondent required appellant to call and report any medically-related absence by 7:30 a.m. on the date of any unexpected absence. On more than one occasion prior to March 1999, appellant was advised in writing of this requirement. Appellant admitted he was aware of the requirement.

On March 9, 1999, appellant called his supervisor and stated his father-in-law had died. He requested bereavement leave. His supervisor granted two days. The bereavement leave days were March 10 and March 11, 1999.

Appellant did not return to work on March 12 and did not call. As a result, appellant was placed on unapproved leave without pay (AWOL) for March 12, 1999.

Appellant did not call on March 13 and again was placed on AWOL.

On March 14, 1999, appellant's supervisor called his house and got no answer. Since appellant lived near his work site, the supervisor left a message in an envelope on his windshield asking him to call.

Appellant called his supervisor on Sunday, March 14, 1999. He told his supervisor he had a drinking problem and requested a referral to the State's Employee Assistance Program (EAP). The supervisor called EAP on his behalf but was advised appellant would have to contact EAP directly for services. The supervisor called appellant back and gave him the information and the telephone number for EAP.

On Monday, March 15, 1999, appellant’s supervisor called him at home and asked if appellant had called EAP. Appellant stated he had not. The supervisor volunteered to allow him to use two personal holidays to get into a program through EAP. He also reminded appellant to submit substantiation for his bereavement leave of the prior week or his March 9 and March 10, 1999 absences would be changed to AWOL. Appellant never provided substantiation because his father-in-law did not die.

On Tuesday, March 16, 1999, appellant’s supervisor called him and asked if he had contacted EAP. Appellant still had not. The supervisor reminded appellant that appellant was expected to report back to work on Wednesday midnight for his Thursday (March 18) shift, unless an EAP counselor directed him to be off work.

Appellant’s supervisor called him again on March 17, 1999, to verify appellant's return-to-work status. Appellant advised him he would not be back at work that evening and stated he was hurting. Appellant also said something to the effect of "it would not be good" for the supervisor or himself to come to work that night. The supervisor was concerned that the statement might be a veiled threat.

Appellant did not return to work on March 19, March 22, March 23, March 24 or March 25, 1999, and did not call to report each absence, as required.

Appellant testified he did not call because his supervisors knew about his alcohol problem and what he was doing. However, appellant never requested a formal leave of absence and did not enter a detoxification program until April 2, 1999.

At the hearing, appellant, through his representatives, contended that the call to his supervisor on Sunday, March 14, 1999, regarding EAP constituted a constructive1 leave of absence for appellant. It was further contended that by approving appellant for two days leave (use of two personnel holidays), on March 9 and 10, 1999, the supervisor "constructively" placed appellant on a leave of absence.

There was no evidence that respondent or any of its representatives granted appellant leave for March 19 through March 25, 1999. In fact, appellant was specifically directed back to work by his supervisor during the March 17, 1999, call.

Appellant entered an alcohol detoxification program at Kaiser Permanent on April 2, 1999. At the time of the hearing he was still in the program, although there was some evidence he has missed meetings and could be terminated. Appellant testified he is currently ready, able and willing 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 reason 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.

Appellant did not provide a satisfactory reason for failing to report to work from March 19 through March 25, 1999. Appellant offered copies of visit verification slips which he testified he obtained from Kaiser Permanente to support the need for him to be off work for medical reasons on March 19 and March 22, 1999. These verification slips were not provided to respondent prior to his automatic resignation. They were produced after the fact and were not corroborated by the physicians who saw and treated appellant. They constitute administrative hearsay. Respondent objected to the use of uncorroborated hearsay to make critical findings as to appellant's ability to work each day and to appellant's counsel's failure to call the treating physician as a witness (which would otherwise provide respondent an opportunity to cross-examine regarding the issue). The verification slips were entered into evidence to corroborate appellant's testimony that appellant went to Kaiser Permanente, but not relied upon to make findings as to appellant's reason(s) for being absence on March 19 and March 22, 1999.

Appellant did not provide a reasonable explanation for failing to call respondent and request leave on March 19 through March 25, 1999. Appellant claimed that he was looking for a detoxification program on March 23, March 24, and March 25, 1999. This explanation does not reasonably excuse his failure to report for a midnight to 8:00 a.m. shift on each of those days. Therefore, it is concluded that appellant failed to prove that he had a satisfactory reason for being absent from March 19 through March 25, 1999.

Appellant did not timely report his absence on any of the days at issue and testified it was because his supervisor knew where he was. It is not enough for an employee to presume that his/her supervisor knows where he/she is when an employee does not intend to report to work as scheduled. In this instance, it is concluded appellant made no reasonable efforts to call and report his absences, as required. Further, there was no evidence appellant ask for or was granted leave for the days in question. EAP or an EAP referral does not remove the obligation for reporting absences in the work place; and appellant was aware of the proper procedures for reporting. Accordingly, it is also concluded appellant provided no reasonable explanation for not obtaining approved leave.

Whether or not appellant is ready, able and willing to work need not be addressed because appellant has not proved that he has a satisfactory reason for being absence and not obtaining approved leave.

Accordingly, it is concluded appellant’s appeal should be denied.

 

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that the appeal for reinstatement after automatic resignation effective March 18, 1999, is denied.

 

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1. Appellant did not make a record of what elements must be present to constitute a "constructive," as opposed to an actual leave of absence. No legal citations were offered.