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DPA Case Number 00-S-0081 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: November 1, 2000
By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA), at 9:00 a.m. on September 27, 2000, at Sacramento, California.
Appellant was present and was represented by Marina Magdaleno, Labor Relations Representative, California State Employees Association (CSEA).
Deborah J. Kerns, Staff Counsel, represented Department of General Services (DGS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Appellant was issued a Notice of Automatic Resignation on August 1, 2000, for being absent without approved leave from July 25, 2000, to August 1, 2000. A corrected notice was issued on August 10, 2000. Appellant filed a request (appeal) for reinstatement after automatic resignation on August 25, 2000. The appeal complies with the procedural requirements of Government Code section 19996.2.


Respondent automatically resigned appellant retroactive to close of business July 24, 2000. Appellant filed a form appeal with DPA. At the hearing, appellant claimed that she had a “stomach impairment,” which prevented her from working and that she was too ill to follow the standard procedures for requesting and obtaining leave. Appellant also claimed she is currently ready, able and willing to return to work.


Appellant worked on Monday July 24, 2000. She did not report for work on Tuesday through Friday, July 25 through July 28, 2000. She also did not report for work on Monday, July 31, 2000. Appellant claimed that she worked the afternoon of Tuesday, August 1, 2000. Respondent acknowledged appellant came to pick up her paycheck on Tuesday, August 1, 2000, but disputed that she performed any work on that day. The following sequence of events occurred which caused appellant to be off work.
On July 25, 2000, appellant did not report to work and did not call her supervisor. About 9:00 a.m., her supervisor became concerned and called her home. No one answered. He called again at approximately 10:00 a.m. and again no one answered. He called at 11:00 a.m. and was unable to reach appellant. Appellant’s daughter answered the phone and advised him that appellant was in her car and going to work. Appellant never went to work and did not return her supervisor’s call.
That same morning at approximately 8:28 a.m., appellant called the Regional Manager in Sacramento to complain about her supervisor. According to the Regional Manager, appellant told him she could do her supervisor’s job better than he could and claimed she felt abused. He determined that appellant was angry with her supervisor. He did not know she was not at work. He assumed she was calling from work. Appellant testified that she told the Regional Manager she would not be in to work that day. She did not recall if he responded directly to her statement. However, the Regional Manager testified she “never addressed the issue of being absent” during the conversation.
On Wednesday, July 26, 2000, appellant did not report to work and did not call either her supervisor or the Regional Manager. Her supervisor made no attempt to call her.
On Thursday, July 27, 2000, appellant did not report to work and did not call either her supervisor or the Regional Manager.
Also on Thursday, July 27, 2000, appellant’s supervisor called the Regional Manager to report that appellant had not been at work and that his own vacation was starting the following day. He requested that the Regional Manager contact appellant to determine her work status.
On Friday, July 28, 2000, the Regional Manager called appellant’s home and her daughter answered the phone. The daughter told him appellant was not there. He identified himself and was then told appellant was in the shower getting ready for work. Appellant never reported for work and never called the Regional Manager back.
On Monday, July 31, 2000, the Regional Manager asked a Telecommunications Technician for DGS in Fresno, to go to the Telecommunications Office in Fresno and see if appellant was there. He went to the office at approximately 10:30 a.m. The office was closed up, the door was locked, and appellant was not there. There were two packages, which had been delivered and left on the doorstep. None of the telephone messages had been accessed. He called the Regional Manager back and reported the status of the office.
Appellant was mailed a notice of automatic resignation on August 1, 2000.
Appellant claimed that she was too ill to come to work during the period of July 25 to August 1, 2000. She testified she had an upset stomach when she talked with the Regional Manager on July 25, 2000. She similarly testified that when her supervisor called on July 25, 2000, she was sick in bed. Appellant claimed she has irritable bowel syndrome, for which a doctor treated her at 11:00 a.m. on August 1, 2000. She testified that, at that time, the doctor told her she needed to be off work for 10 days and he referred her to a psychologist for a visit on August 9, 2000. Despite the advice of the doctor, she testified she worked on the afternoon of August 1 and all day on August 2, 2000.
Respondent placed evidence on the record to dispute appellant’s claim that she actually worked on August 1 or August 2, 2000. On August 1, 2000, respondent claimed appellant only came into the office to pick up her paycheck. Respondent placed expert testimony on the record that on July 24, 2000, the last day appellant worked, she went into the time attendance reporting system and entered timekeeping data to indicate her work status for the entire month (including July 25 through July 31, 2000). She reported eight hours of work for each of those days. She did not enter the system on August 1 or August 2, 2000 to correct the time reporting, but instead picked up her paycheck. The Regional Manager testified that on the morning of August 2, 2000, he called the office and was unable to reach appellant until 11:30 a.m. Also on August 3, 2000, when the Regional Manager visited the office in Fresno, the mailman approached him with what appeared to be one week of mail and made a comment to the effect of he didn’t think they were still there.
Respondent also placed expert testimony on the record that the respondent’s e-mail database indicated appellant did not open any e-mail on August 1, 2000.
The record made at hearing is peculiar in that appellant claimed she needed to be off work between July 25 and August 1, 2000, because of irritable bowel syndrome but did not seek medical attention during that time period. Then, according to her testimony, she saw a doctor on the morning of August 1, 2000 (who told her she needed to be off work) and she reported back to work that very same day. Appellant submitted no medical substantiation or testimony to support her claim of a medical need to be off work from July 25 through August 1, 2000.


Appellant’s supervisor testified that it was the policy in the office for appellant to call and report as soon as possible if she was unable to work due to illness on any given day.
Appellant claimed she told the Regional Manager on July 25, 2000, that she did not think she would go to work that day. However, the Regional Manager recalled her conversation with him as one in which she was angry and complaining about her supervisor and saying she wanted to meet with the Regional Manager. He did not recall her even addressing the issue of time off.
Appellant admitted she did not call her supervisor at any time between July 25 and August 1, 2000, to report she would be absent due to illness. She did not return his call of July 25, 2000, either. When asked why she did not call her supervisor to report her absence she testified she was “too ill.” It was noted that appellant was not “too ill” to call the Regional Manager and complain about her supervisor on July 25, 2000.
Further, there was no medical substantiation that appellant was unable to call and report her illness. And, appellant provided no explanation as to why false information was provided by her family member on July 25, 2000 to her supervisor and on July 28, 2000 to the Regional Manager implying she was on her way to work, when she was not.


Appellant testified she is currently ready, able and willing to return to work because she has not had any symptoms of irritable bowel syndrome for two months.
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Government Code section 19996.2 provides an automatically separated employee with the right to file a request 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/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.
Appellant’s testimony that she did not feel well enough to come to work from July 25 to August 1, 2000, was unconvincing. It was unconvincing because she made no credible efforts to inform her supervisor or the Regional Manager as to why she was not at work and she presented no medical substantiation of any condition or ailment that prevented her working during that time period. In fact, she never even returned calls from the supervisor or manager requesting to know her whereabouts. Accordingly, it is concluded appellant did not prove by the preponderance of the evidence that she had a satisfactory reason for being absent from work.
Likewise, appellant did not present evidence to prove that she had a satisfactory reason for not obtaining leave. She never requested leave and she did not present her supervisor or Regional Manager with medical substantiation to support taking time off work.
Since appellant did not prove a satisfactory reason for being absent or for not obtaining approved leave, no finding will be made as to whether she is currently ready, able and willing to return to work.
For the reasons set forth above, appellant’s appeal should be denied.
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that the appeal for reinstatement after automatic resignation effective July 24, 2000, is denied.
  Updated: 5/22/2012
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