DPA Case Number 01-B-0027 - Reinstatement After Automatic Resignation

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:30 a.m. on May 1, 2001, at Riverside, California.

Appellant was present and represented herself.

Rosa Ho, Personnel Analyst, Office of Personnel Operations, 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.

Respondent served appellant with a Notice of Automatic Resignation on February 21, 2001. Appellant filed a request (appeal) for reinstatement after automatic resignation on

March 6, 2001. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.

Appellant was automatically resigned retroactive to February 1, 2001, for being absent without approved leave from February 1 through February 21, 2001.

The appeal which appellant filed with DPA did not set forth the reason(s) for the appeal. At the hearing, appellant claimed she had satisfactory reasons for being absent and for not obtaining leave. She also claimed she is currently ready, willing and able to return to work.

Appellant’s supervisor kept records relating to her absence between February 1 and February 21, 2001. Those records indicated appellant did not report to work on any of those days, with the exception of February 1. On that day, appellant worked five (5) hours of her eight-(8) hour shift before leaving work.

The supervisor’s records also contained notations as to when appellant called her supervisor and the excuses she provided for the period February 2 to February 21. Following is a summary of the records.

DATE REASON CALL IN

02/02 Headache 7:51 a.m.

02/05 None Given 7:12 a.m.

02/06 Not Feeling Well 7:22 a.m.

02/07 Not Feeling Well 7:29 a.m.

02/08 Sick 7:18 a.m.

02/09 None Given 7:24 a.m.

02/12 HOLIDAY --

02/13 Not Feeling Better 7:26 a.m.

02/14 Doctor Gave 3 Days Off 7:17 a.m.

02/15 No Call --

02/16 None Given 7:11 a.m.

02/19 HOLIDAY --

02/20 Doctor’s Appointment 7:06 a.m.

At the hearing, appellant testified she was absent on the dates indicated because of job-related stress. She said the environment at work was “not good” and her supervisor was “controlling.” As a result she did not feel well enough to work on those days.

Although she claimed she was under a doctor’s care, appellant did not present any medical substantiation at the hearing. Similarly, she had not presented any medical substantiation to either her supervisor or the Coleman Officer whom she met with on or before March 2, 2001.

Even though appellant called her supervisor to advise her she would not be at work on most of the days of her absence, appellant’s supervisor denied approved leave for each of those absences. The reason appellant was denied leave was that she failed to provide any medical substantiation to be off work due to illness.

Appellant had been on leave restriction since May 26, 2000. Prior to that time she had been excessively absent and had failed, on occasion to provide medical substantiation. Also, appellant was served with a ten percent (10%) reduction in salary for six (6) months on November 9, 2000, for being inexcusable absent between June 5, 2000, through October 23, 2000.

Appellant’s supervisor testified that after appellant received the adverse action, she and appellant’s second-line supervisor met with her. They advised her that they did not want her to continue to abuse the reporting requirements. Also, when appellant called and spoke with her supervisor on February 16, 2001, the supervisor told her that she was considered on unapproved time off and that she should “get something from the doctor into the office.” Appellant assured her supervisor she would be in with the substantiation on Tuesday, February 20. (February 19 was a holiday.) Appellant did not come to work on February 20, 2001, and she never gave the supervisor any substantiation for her absence between February 2 and February 20. To date, appellant has still not provided any medical substantiation for her claimed illness.

Appellant testified she is ready, able and willing to return to work. She testified she is better able to deal with the pressures of the job now.

 

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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 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 did not prove by the preponderance of the evidence that she had a satisfactory reason for being absent. Her testimony that she was too stressed to work is self serving and suspect given the fact she has not produced one shred of evidence that she actually saw a doctor or obtained medical substantiation placing her off work during the time at issue.

Appellant also failed to prove that she had a satisfactory reason for not obtaining leave. Appellant was aware that simply calling her supervisor and stating she was ill was not sufficient to obtain approval to be off work. In fact, she had been reminded time and time again that because of her excessive leave usage, she would not be granted approved leave for illness unless she provided timely medical substantiation.

Appellant claims she is currently ready, able and willing to return to work. Since she has not established a satisfactory reason for being absent and not obtaining leave, DPA need not make a determination as to her current ability to perform a job as an Office Technician (Typing).

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

 

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that the appeal for reinstatement after automatic resignation effective February 1, 2001, is denied.