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DPA Case Number 01-P-0031 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: August 9, 2001
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 July 20, 2001, at San Diego, California, and at 8:30 a.m. on July 31, 2001, at Sacramento, California.
On July 20, 2001, appellant was present and was represented by Paul Pechter, Senior Field Representative, Service Employees International Union (SEIU). On July 30, 2001, both appellant and his representative appeared telephonically.
Johnnie B. Beer, Staff Counsel, represented the 22nd District Agricultural Association (Agricultural Association), Department of Food and Agriculture (DFA), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On February 22, 2001, respondent served appellant with a Notice of Automatic Resignation. The notice advised appellant he was being automatically resigned because he was absent without approved leave from February 16 through February 20, 2001. On March 15, 2001, SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf. The appeal was not filed on or before March 13, 2001, which was the statutory deadline for filing a timely appeal.
On April 10, 2001, DPA sent both parties’ representatives a letter advising them that the appeal was late and requesting to know if appellant claimed good cause for late filing, consistent with DPA Rule 599.904.1 Appellant’s representative responded by letter dated April 23, 2001. He claimed good cause based upon appellant’s confusion regarding the appeal’s process. Respondent’s representative did not respond to the claim of good cause. Based upon the information provided and the short time period by which the appeal was late (two days), DPA concluded that appellant demonstrated sufficient good cause to excuse the late appeal.
Accordingly, it was determined that the notice and appeal comply with the procedural requirements of Government Code section 19996.2, and DPA has jurisdiction to adjudicate the matter.


By letter dated March 15, 2001, appellant appealed the automatic resignation on all grounds permitted at law. At the hearing, he claimed he was medically unable to work between February 16 and February 20, 2001, and that he made satisfactory efforts to advise his employer that he needed to be off work for medical reasons. Appellant is currently ready, able and willing to return to work.


Appellant was off work beginning January 25, 2001. He was automatically resigned for being absent without approved leave from February 16 through February 20, 2001.
Appellant testified that he did not report to work because he was ill. He had low back pain which had been bothering him since December 2000.
Appellant’s Physician, a member of the Sharp Mission Park Medical Group (Sharp), testified that he had been appellant’s physician since approximately 1993. He reviewed appellant’s medical records. Those records demonstrated appellant was treated for lower back pain in Urgent Care at Sharp on December 22, 2000; by another Physician on January 26, 2001; and by another Physician on January 29, 2001.
Also on January 30, 2001, a Nurse Practitioner treated appellant at his physician’s office. At the time, appellant was complaining of low back pain, diarrhea and cramping. Tests were ordered. Thereafter, he was diagnosed with low back pain, lumbar-sacral strain and sciatica. He was provided medication and referred to physical therapy for treatment.
Appellant’s physician stated that in his medical opinion appellant was unable to work between February 16 and February 20, 2001, due to lower back strain and sciatica. His testimony was corroborated by a medical excuse prepared by the Nurse Practitioner on February 22, 2001, and by Worker’s Compensation forms in appellant’s medical file. The forms indicated appellant was under the care of Sharp physicians from January 2 through March 15, 2001, for “low back pain, LS strain and sciatica,” that he was unable to work as of January 2, 2001, and that he was scheduled to be released on March 15, 2001.


Appellant admitted he did not obtain approved leave for being absent from February 16 through February 20, 2001.
Appellant was off work a number of days in January 2001 and followed the proper reporting procedures, which included calling his supervisor to advise him he would not be at work. Appellant last worked on January 22, 2001. He was again scheduled to work on January 25, 2001. He called and reported he would be out ill. He was also off work on January 26 and on January 27 and called to report each absence.
Appellant admitted he did not call his supervisor on the work days immediately following January 29, 2001. He called the Human Resources Office at the Agricultural Association on or about February 4, 5 and 8, 2001, regarding his continuing illness.
As a result of his calls to the Human Resources Office and notification from his supervisor of his absence, the Human Resources Representative mailed appellant a letter on February 7, 2001. The letter advised appellant of his eligibility for benefits under the Federal Family Medical leave Act (FMLA) and the California Family Rights Act (CFRA). Those benefits include allowing employees up to 12 weeks of unpaid leave per year and health benefits for serious health conditions that make the employee unable to perform the essential functions of his job. The letter also advised appellant that he needed to have a health care provider execute a “Certificate of Health Care Provider” to support any request for medical leave. The Human Resources Representative testified she enclosed forms with the letter.
On February 8, 2001, appellant called the facility three times. He testified he spoke with his supervisor as well as with someone in Human Resources. He also testified he told them he was not coming to work because of pain and that he was under a doctor’s care. He was advised to bring in written documentation from his health care provided when he was ready to return to work. Appellant’s supervisor does not recall talking with appellant around February 8, 2001.
Appellant testified he stopped calling his supervisor and Human Resources because they knew he was out ill and under a doctor’s care. He had agreed to provide medical substantiation for his absence when he was released to return to work. Appellant also testified that at the time of his illness, his mother had Alzheimer’s Disease and was trying to care for his father who was dying of cancer. (His father died in March.) During this time period he felt extremely stressed because he was not able to care for his father due to his own pain and illness.
Appellant went into the Human Resources Office on or about February 15, 2001, and spoke with the Human Resources Representative. He told her that he was still unable to work and was under a doctor’s care. He handed her a request for family care leave which was only partly completed. She told him it would not be approved unless he had it signed by his supervisor. She testified she also told him that he would not be considered on an approved leave of absence until the signature was obtained. She noted that he did not have certification from his health care provider at that time. She advised him he would need that certification before FMLA was approved.
Appellant testified he did not obtain his supervisor’s signature at that time because his supervisor was out ill. He took the forms to his car and forgot about them until his wife called them to his attention days later.
Appellant’s physician testified that throughout February 2001, appellant kept in contact with his office. He called several times to check on the results of tests which had been administered. Also on February 12, 2001, he dropped off paperwork for the State Disability Insurance benefits. On February 26, he called to advise he was feeling better. And on February 27, 2001, he called to obtain a release to return to work and medical substantiation for his time off work between February 16 and 20, 2001. Appellant’s physician also testified that appellant’s record indicated his father was dying of liver cancer at that time and that appellant was under a great deal of stress because of his father’s condition. He stated something to the effect of “a lot was going on in his life at that time.”
Appellant’s supervisor testified he received a call from appellant on February 23, 2001. Appellant told him he had received an AWOL letter. The supervisor told appellant the letter was sent because no one had heard from him. Appellant responded that he was in contact with the Human Resources Office. He also told the supervisor that his doctor had not yet signed his medical substantiation to be off work and to return to work, but he would obtain it. Appellant obtained the certification on February 27, 2001.
The evidence demonstrated appellant made substantial efforts to keep his employer (including his supervisor and the Human Resources representative) informed that he was ill and under a physician’s care. Several factors which were beyond appellant’s control affected his actions in February 2001. They included the acute episodes of pain which commenced in late January and ran through most of February, his concerns regarding his terminally ill father, and his lack of sophistication regarding timelines for completing FMLA/CFLA, Nonindustrial Disability Insurance and Workers’ Compensation forms. These factors all contributed to his failure to actually make the appropriate contact with his employer each day. In addition, two other factors contributed to appellant’s failure to obtain approved leave. His own physician was out ill during a substantial period of time at the beginning of 2001 such that the usual appointments and forms were processed by other staff at Sharp; and appellant mistakenly assumed his representations that he was out under a doctor’s care (which were made on and before February 8, 2001 to the Human Resources representative) were sufficient notice that he would be off work until his doctor released him.


At the commencement of the hearing, the parties stipulated appellant is ready, able and willing to return to work. Appellant’s physician also testified he was released to return to work without restrictions on February 27, 2001.
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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 separated 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 separation. 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 proved by the preponderance of the evidence that he had a valid excuse for being off work from February 16 through February 20, 2001. The reason was that he was suffering from low back pain, sacral-lumbar strain and sciatica which had been temporarily exacerbated and made him unable to work. This finding is based upon the medical testimony provided by appellant’s physician and his medical records.
Appellant was denied leave because of failing to call his supervisor each morning of his absence from February 16 through February 20, 2001. On or about February 8, 2001, appellant advised his supervisor and the Human Resources Office that he was under the care of a physician and would not be returning to work until his doctor released him.
His reasons for not calling as required are unique and personal to his situation. They are as follows. Appellant was in a great deal of pain. He also was stressed by his mother’s illness and his father’s need for terminal care. Prior to February 8, 2001, appellant had been in acute care due to pain on at least three occasions. He had been to his own physician’s office and was undergoing tests to determine the source of his pain. He advised his supervisor and the Human Resources Office that he was under medical care and would not be released for a while. He was under the misimpression that he was not required to present medical substantiation until he returned to work. Appellant obtained that substantiation, albeit late. As soon as he was released he presented the medical substantiation to that effect.
It is concluded, that while appellant may have failed to comply with all reporting requirements, he made good faith efforts to keep his employer informed that he was medically unable to work and would be unable to work until released by his physician. Upon his release, he promptly provided that substantiation. Accordingly, he proved by the preponderance of evidence that he had a valid excuse for having failed to obtain leave.
Appellant is considered ready, able and willing to return to work by stipulation of the parties.
For the reasons set forth above, it is concluded appellant should be manditorily reinstated to his position as Satellite Wagering Facility Janitor with the Agricultural Association, DFA, no later than two weeks following the issuance of this decision by DPA.
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that the appeal for reinstatement after automatic resignation effective March 2, 2001, is granted. Appellant should be reinstated to his position, without back pay, no later than two weeks following issuance of this decision
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1. Rule 599.904 provides in relevant part, “Upon good cause being shown, the Department of Personnel Administration or the Director may allow such an appeal to be filed within 30 days after the end of the period in which the appeal should have been filed.”
  Updated: 5/22/2012
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