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DPA Case Number 02-C-0131 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 14, 2003
By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on April 25, 2003, at Sacramento, California.
Appellant was present and was represented by Brian K. Taylor, Attorney, California State Employees Association (CSEA).
Theodore A. Cobb, Assistant Chief Counsel, represented the State Water Resources Control Board (WRCB), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent automatically resigned appellant effective November 18, 2002, for being absent without approved leave from October 31, 2002 through November 6, 2002.1 CSEA filed a request (appeal) for reinstatement after automatic resignation on November 15. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant claimed he should be reinstated because he had a valid reason for being absent; he reasonably complied with respondent’s requirements for obtaining leave; and, he is ready, able, and willing to return to work.


On October 31, appellant left his supervisor a voicemail message at approximately 7:00 a.m. saying, “I have to get the house ready for Halloween; I will be taking vacation hours.” On November 1, he left a message saying, “I will not be in today; I will be taking vacation hours.”
At hearing appellant testified he couldn’t explain his statements in the October 31 and November 1 voicemail messages. He testified he did not go to work on October 31, November 1, or subsequent days because he was ill and unable to work. He testified he was unable to work because he was depressed about problems at work, problems at home, and because of the recent suicide of a long-time friend and co-worker.
Appellant’s wife corroborated his testimony. Appellant’s wife also works at WRCB’s San Francisco Regional Water Control Board. She observed that appellant was unusually quiet, had trouble sleeping, and did not engage in activities such as cooking in which he normally participated.
Appellant’s family physician for 13 years testified that appellant called him on October 31 and said he was ill. The physician could not recall the specifics of that conversation. He did not see appellant on that date and he did not record a diagnosis. The physician testified that consistent with his usual practice, he probably told appellant to make an appointment to see him. He also testified that based on appellant’s voice during the October 31 telephone call and his knowledge that appellant had been previously diagnosed with depression, he believed appellant was suffering from agitated depression and adjustment disorder. The physician verified that he signed a Certificate to Return to School/Work dated October 31, which indicated appellant could return to work on December 15. He based this return to work estimate on his opinion that “it generally takes people about six weeks to calm down.” The physician also testified that in accordance with his usual practice, he “probably” signed this on October 31. He testified that he does not keep duplicate return to work certificates in his patient’s files. Appellant testified that the physician told him on October 31 that he should not go to work.
The physician also verified that he signed a second Certificate to Return to School/Work dated November 6, 2002. He testified this certificate was completed by his nurse practitioner and he signed it relying on her judgment and information she provided. This certificate indicated appellant had been under his physician’s care since October 31 because of a viral syndrome and that he could return to work on November 12. The physician did not testify as to when he signed this certificate. He could not explain why this certificate had a return to work date of November 12 while the prior return to work certificate indicated appellant was unable to work until December 15. The physician did not examine the appellant on either October 31 or November 6. The nurse practitioner was not called to testify.
Appellant testified that when he received a call from his wife informing him he was being automatically resigned, he had a “break down”. As a result of this break down, appellant testified he was admitted to the hospital for four days and then transferred to a mental health facility where he remained for another six days. Appellant called his physician both while he was hospitalized and after he was discharged. The physician prescribed medication for appellant. The physician finally examined appellant on November 23. The physician testified that his November 23 examination confirmed his October 31 primary diagnosis of “agitated depression” and his original prognosis that appellant could return to work on December 15. The physician testified that although appellant was unable to work during this period, appellant’s “agitated depression” did not affect his ability to communicate.


Appellant contended he should have been granted leave because he reasonably complied with respondent’s requirements for obtaining leave. He argued he reasonably complied because: (1) he called his supervisor on October 31 and November 1 to notify her he would not be at work because he was taking vacation leave; (2) the attendance restrictions were not consistently enforced; (3) no one called him to notify him he had not met the requirements for obtaining leave; and, (4) he believed his doctor had faxed respondent a copy of the October 31 return-to-work certificate stating he would be off work until December 15.
Appellant received a “Reprimand for Poor Performance and Attendance Problems and Notice of Attendance Restrictions” on July 31, 2001. These restrictions were subsequently revised. On or about July 12, appellant received a memorandum from his then supervisor stated in pertinent part:
“3. Absences (VAC, SL, etc.)
a. You must give me at least two days advance notice and get my approval before you take VAC leaves (including personal holiday and holiday credits). If you do not, I will log those absences as absent without leave (AWOL). This is necessary to ensure that your absence will not delay the availability of information on the ERS.
b. Unpaid leave:
* You must give me at least two days advance notice if you plan to be absent without leave, except for verifiable extenuating circumstances.
* If your absence is for a medical reason, you must notify me in the morning of the day you will be absent, and bring a doctor’s note when you return to work.
* If you follow these two rules, I will log the unpaid absence as Approved Leave (L). If you do not follow these rules, I will log the absence as AWOL.”
On July 15 appellant was assigned to another supervisor. She and his first supervisor met with appellant on July 15 to confirm that the revised attendance restrictions previously established on or about July 12 were still in effect. On September 30, the supervisor again reminded appellant about the July 12 attendance restrictions through a memorandum and an attached copy of the restrictions.
Both appellant and the supervisor testified that appellant’s attendance restrictions were not rigidly enforced. The supervisor testified the restrictions were applied in a “give and take manner.” She explained that if appellant did not have a critical assignment due, she allowed him to use vacation time without the two day advance notice. She also testified that if he did not provide what she considered an adequate excuse, she would record the absence as AWOL. Appellant testified without contradiction that a voicemail message had customarily been accepted as adequate notice when he was not coming to work.
The supevisor recorded appellant’s absences on October 31 and November 1, as absence without leave because he did not follow the formal procedures for requesting vacation and he had a time critical assignment which was incomplete. Appellant believed he had completed the time critical assignment on October 30 because he put a third revision on the supervisor’s chair. In fact, the supervisor edited the revised product and put it back in appellant’s work area on October 31, the first day of the relevant period that appellant did not come to work.
Appellant did not call his supervisor or anyone else on November 4, 5, or 6 and he did not report to work. Appellant testified he did not call because he thought his physician had faxed a note excusing him from work on those days. The supervisor telecommuted on November 5. After checking to see if appellant had reported to work or if he had left her a voicemail message, the supervisor left a voicemail message at appellant’s work number saying he should call her at home because the time sensitive document had to be completed and mailed.
On November 6, the supervisor sought out appellant’s wife and asked her why appellant had not come to work. His wife said appellant was home sick. The supervisor called appellant at home at 10:36 a.m. on November 6. She left a voicemail message saying she needed to hear directly from the appellant and that she needed a doctor’s note addressing his absence.
Appellant’s wife testified that after learning appellant needed a doctor’s note, she called the doctor’s office and asked the receptionist to fax a copy of a note excusing appellant from work to respondent. Appellant’s wife called his supervisor around noon on June 6 saying a doctor’s note was coming.
The supervisor called appellant at home a second time on November 6 at 2:03 p.m. She left him a voicemail message telling him she had not received a doctor’s note and that automatic resignation papers were being prepared. She also told him someone would contact him to tell him whether he should return to work or not. The supervisor recorded appellant as being absent without leave on November 4, 5, and 6. Respondent mailed the notice of automatic resignation to appellant on November 6.
On November 7, the supervisor received a fax copy of the “Certificate to Return to School/Work” dated November 6. The note stated appellant had been under the physician’s care since October 31 for “viral syndrome” and that he could return to work on November 12. Respondent would not accept this certificate because it was not signed by the doctor. The supervisor called the physician’s office on this date to see if the doctor had examined appellant. The physician’s office did not return the call. When appellant’s wife learned the note was insufficient, she again called the physician’s office and asked that the doctor sign the note that had been previously faxed to respondent. Respondent received the November 6 certificate signed by the physician on November 12.
The Assistant Executive Officer of the San Francisco Regional Water Resources Control Board called appellant at home on November 7 at 12:20 p.m. The Assistant Executive Officer left a lengthy voicemail message counseling appellant about his right of appeal after the automatic resignation. The Assistant Executive Officer also talked with appellant on November 12. It was at that point the Assistant Executive Officer learned appellant had been hospitalized. During the November 12 conversation appellant admitted to the Assistant Executive Officer that he had a pattern of attendance problems. Appellant told the Assistant Executive Officer he wanted to quit his job. This was consistent with other conversations appellant previously had with the Assistant Executive Officer and with statements appellant had made to his supervisor and other employees.
Respondent refused to grant appellant leave because appellant did not comply with the formal instructions necessary to obtain leave. It believed appellant was uninterested in retaining his job and did not take the adequate steps necessary to preserve his employment.


Appellant stated he was ready, able, and willing to return to work. The physician testified that he believed appellant was able to return to work as of December 15.
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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal 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 had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.
Appellant proved by a preponderance of the evidence that he had a valid reason for being absent October 31 and November 1 and that he had a valid reason for not obtaining leave on those dates.
Appellant left voicemail messages on October 31 and November 1 notifying his supervisor he was taking vacation on these days. Although the July 12 formal attendance restrictions required two days advance notice and approval by the supervisor, both appellant and his supervisor testified these requirements were not strictly enforced. Instead, appellant’s supervisor informally substituted a “give and take” basis for leave approval, allowing appellant to take vacation leave if he did not have critical projects to complete.
There was no evidence that appellant was aware that approval of vacation leave, formal or informal, was dependent on completion of a critical or time sensitive project. Even if he was aware of such a restriction, appellant believed, albeit incorrectly, that he had completed his time sensitive project on October 30. Appellant’s supervisor returned the assignment to him on October 31 when he was gone from work and while he believed he was on vacation leave. The supervisor did not contact appellant to notify him that his vacation leave was not approved. Although the supervisor does not usually bear the burden of contacting an employee during the period of absence, in this case, appellant had no way of knowing he was going to be charged as being absent without leave for October 31 and November 1, unless he was contacted by his supervisor. Appellant reasonably complied with his supervisor’s past practice regarding granting of vacation leave and he reasonably believed he had been granted leave on October 31 and November 1.
The preponderance of the evidence proves that appellant is ready, able, and willing to return to work.
Therefore, because appellant proved he had a valid reason for being absent and a valid reason for not obtaining leave on October 31 and November 1, two of the five statutorily required days of absence under Government Code section 19996.2, and he is ready, able, and willing to return to work, appellant must be reinstated.
* * * * *


that the appeal for reinstatement after automatic resignation effective November 18, 2002, 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. All dates are 2002, unless otherwise indicated.
  Updated: 5/22/2012
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