DPA Case Number 01-W-0064 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: September 24, 2001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 1:00 p.m. on September 18, 2001, at Coalinga, California.

Appellant was present without representation.

Gregory L. Nicholas, Staff Counsel, represented the Department of Corrections (CDC), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

On July 10, 2001, respondent served appellant with a Notice of Automatic Resignation. The notice advised appellant she was being automatically resigned retroactive to June 1, 2001, because she had been absent without approved leave from June 2 through July 9, 2001. On July 12, 2001, appellant appealed the notice to DPA. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.

By letter dated July 12, 2001, appellant requested reinstatement. She claimed that her automatic resignation was the result of retaliation by other employees based upon a complaint, which she filed in 1997. At the hearing, appellant claimed that she had a satisfactory reason for being off work and not having obtained leave. She also claimed she is currently ready, able and willing to return to work.

Appellant was on leave from February 27, 2001, through June 1, 2001, based upon medical substantiation from her physician.

Appellant did not return to work after June 1, 2001 and did not call her supervisor to report that she would not be returning. Appellant testified that she did not return to work because she had scheduled elective surgery for June 19, 2001, and did not want to face questions from her co-workers regarding that surgery.

Appellant did not have the elective surgery on June 19, 2001.

The ALJ asked appellant if there was any other reason she did not work between June 2 and July 9, 2001, and appellant responded “no.”

Appellant did not request to extend her leave after June 1, 2001. She called the Health and Safety Officer (HSO) on June 4, 2001, and told her she was “going to be off longer.” She also told her she was going to see a doctor and would get documentation to be off work. She did not obtain any medical substantiation to be off work and did not call the HSO back until June 6, 2001. On June 6, 2001, when she talked with the HSO, she told the HSO she was still trying to get a doctor’s appointment and had been unable to get one. The HSO asked her to call her supervisor.

On June 6 appellant called her supervisor in the mailroom and told him she would not be at work for the rest of the month.

Appellant never advised the HSO or her supervisor the reason why she was off work after June 1, 2001.

On June 26, 2001, respondent sent appellant a letter warning her that she would be automatically resigned if she did not return to work or provide medical substantiation for her absence by July 9, 2001.

Appellant responded by calling the Employee Relations Officer (ERO) and telling her that she was trying to get her doctor to approve leave. On July 6, 2001, she was seen by a Nurse Practitioner, who gave her a prescription form which stated appellant was able to work. Appellant testified that she went to her physician’s office on July 11, 2001; and he refused to see her. The next day he sent her a letter telling her that he was terminating the physician/patient relationship and that she would be required to place herself and family under the care of another family practice/clinic site.

Appellant is currently seeing another family physician for thyroid medication.

Appellant testified that she did not disclose to anyone at work that she was staying off work pending elective surgery because she considered it a “private matter.”

Although appellant implied to the HSO, the ERO and her supervisor that she had a medical need to be off work, appellant’s reason was not medical. The physician released appellant to return to work on June 1, 2001. There was no evidence that appellant was unable to work after that date. Appellant testified she is 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 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 failed to prove that she had a satisfactory reason for being off work. She stayed home after June 1, 2001, because she did not want to go back to work when her medical leave expired. She also failed to prove she had a satisfactory reason for not having obtained leave. She never requested leave after June 1, 2001. When she spoke with the HSO, the ERO and her supervisor, she mislead them as to the reason she was off work by implying she was medically unable to work. At the hearing, she claimed she did not apprise them of the actual situation because she wanted privacy. An employer has a right to expect its employees to come to work unless they are unable to work or an emergency arises where they cannot request leave in advance. If the reason an employee is off work is not medical in nature and not of an emergency nature, the employee has an obligation to apprise his/her employer of the reason leave is needed and to request leave in advance to be granted at the discretion of the employer, subject to the needs of the facility.

For the reasons set forth above, it is concluded appellant should not be reinstated to her position as an Office Assistant (Typing).

Appellant retains permissive reinstatement rights to State service.

 

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