DPA Case Number 02-N-0094 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: November 5, 2002

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on September 30, 2002, at Riverside, California.

Appellant was present and was represented by Stephen D. Beck, Labor Relations Consultant, California Association of Professional Scientists (CAPS).

Gregory W. Brown, Staff Counsel, represented the Department of Health Services (DHS), respondent.

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

Respondent automatically resigned appellant effective close of business August 8, 2002, for being absent without approved leave from August 9 through August 19, 2002. CAPS filed a request (appeal) for reinstatement after automatic resignation on August 20, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contends he had a valid reason for being absent and a valid reason for not obtaining leave. He also contends he is ready, able, and willing to return to work.

Appellant’s wife was undergoing medical treatment to become pregnant. Appellant testified that during the relevant period, he remained at home to care for his wife and to provide emotional support. He testified that on August 9, his wife had “medical problems” and he stayed at home to care for her. He testified he remained at home on August 13 and 14 to give his wife emotional support and to provide care for her after she received medical treatment. He testified he remained at home on August 19 because his wife was receiving medical treatment at the hospital on that day and he transported her for that treatment.

Appellant failed to present any properly authenticated medical documentation or testimony from any health care provider that substantiates the need for appellant’s physical or emotional support of his wife on the specific days in question. Appellant presented no objective evidence that his wife received treatment on the relevant days or that his continuous attendance or assistance was required.

This is not to say that in other factual situations supported by other elements of proof, an appellant’s assessment that he was required to remain at home to support his family in a medical situation would not constitute a valid reason for being absent. However, under the facts of this case, appellant failed to prove by a preponderance of the evidence that he had a valid reason for not reporting to work.

On or about April 3, 1997, respondent notified appellant by memorandum that all planned absences for sick leave must be cleared “ahead of time” through his immediate supervisor or through the Chief of the Sanitation and Radiation Laboratories Branch. This memorandum specifically noted appellant had previously failed to comply with a written directive and had contacted an Office Technician to report his absence.

On March 28, 2000, the supervisor sent appellant an e-mail notifying him again that vacation time had to be approved in advance by him. The supervisor specifically instructed appellant not to contact the Chief of the Sanitation and Radiation Laboratories Branch regarding attendance. The supervisor gave appellant a list of people who were to be contacted in his absence. The Chief of the Sanitation and Radiation Laboratories Branch was not on the list of people who could be contacted.

On October 26, 2001, the Assistant Division Chief of the Laboratory Sciences issued a memo to all staff which set forth the reporting procedures for planned and unplanned absences. The Assistant Division Chief instructed employees to secure advance authorization from their supervisor for planned absences and he instructed employees to notify his/her supervisor of an unanticipated absence during the first half-hour of the working day. Appellant did not dispute that he received this memorandum.

On or about February 4, appellant discussed absence-reporting procedures with his supervisor. Appellant received a memorandum outlining these procedures. The supervisor again instructed appellant that any changes to appellant’s work hours must be approved by him in advance. The supervisor also encouraged appellant to avail himself of the Employee Assistance Program. The supervisor also advised appellant he may be eligible for leave under the Family Medical Leave Act, California Family Rights Act, or Pregnancy Disability Leave if he provided application and substantiation. Finally, the supervisor advised appellant, “Failure to adhere to the proper reporting requirements or incidents of unacceptable attendance will not be tolerated by this department.” Appellant chose not to apply for leave under any of the programs discussed above.

In spite of multiple discussions and ample notice, appellant did not follow the required reporting procedures for the period of August 9 through August 19. Appellant left a voice-mail message for the Office Technician after 6:00 p.m. on Thursday, August 8, telling her he was going to take Friday, August 9 and Monday, August 12 as vacation days. He left another voice-mail message for the Office Technician at approximately 8:00 p.m. on Monday, August 12, telling her he was taking Tuesday, August 13 and Wednesday, August 14 as vacation days. Appellant left a third voice-mail message for the Office Technician after work hours on Wednesday, August 14 saying he was taking Thursday, August 15 and Friday, August 16 as vacation days. On Sunday, August 18, he left a fourth voice-mail message for the Office Technician saying he was taking Monday, August 19 as a vacation day.

Appellant testified he called the Office Technician instead of his supervisor for several reasons. He initially testified he believed he was complying with the required reporting procedures because it had been the past practice from 1989 to 2000 to contact the Office Technician with attendance information. He testified he believed the Office Technician acted as a “conduit” to provide information to and get approval from his supervisor.

Appellant’s argument is without merit. The evidence shows that beginning as early as April 1997, appellant was on notice that the Office Technician was not the appropriate person for him to contact regarding his attendance. The evidence also shows appellant was specifically advised on multiple occasions since 2000 that he was to obtain advance vacation approval from his supervisor or from specifically designated alternative representatives. The Office Technician was not listed as an alternative and had been specifically excluded as a notification option.

Appellant also testified he called the Office Technician instead of his supervisor because he believed the previous-reporting requirements were no longer in effect. He testified that because he was reassigned to field duties as of July 2, he believed he could follow the same reporting requirements he thought other field personnel followed to report absences. He testified that others assigned to field duty were allowed to call the Office Technician to obtain vacation without advance notice and approval from the supervisor.

Appellant failed to provide any objective evidence to support his belief that field personnel were allowed to obtain leave without advance notice and approval from the supervisor. He also failed to provide any objective evidence to support his belief that his previous reporting requirements were rescinded. In addition, appellant’s testimony is inconsistent with the long history of discussions and memorandums regarding both his own attendance reporting requirements and respondent’s October 26, 2001, memorandum to all staff.

Appellant also asserted his absences were unscheduled and, therefore, he could not seek advanced approval. This argument is also without merit. Appellant failed to provide medical substantiation of his need to be absent or of any emergency medical occurrence. He also failed to explain why, if his absences were unscheduled, he could schedule multiple days off prior to the date of the alleged unanticipated event.

Finally, appellant also testified he did not want talk to his supervisor about his absence because he did not want to share his family’s personal medical status with him. He testified his relationship with his supervisor was difficult. He accused his supervisor of persecuting him for 12 years and of treating him differently than other employees. In response to his supervisor’s March 26, 2000 instructions that appellant contact him and not the Office Technician, appellant sent his supervisor a February 18 memo stating, “I do not believe you have good cause to create special rules or restrictions on my attendance and I do not expect you to treat me with special restrictions."

Although the evidence supports a continuing history of discord between the supervisor and the appellant, appellant failed to present any evidence that the instructions or procedures required of him were unduly burdensome, unreasonable, or selective. When the supervisor telephoned appellant on August 19 to tell him he was absent without leave, appellant responded something to the effect he was a “fully instated” employee so he “could do whatever he wanted.”

A difficult relationship between the supervisor and appellant does not provide a valid reason for appellant to disregard reasonable, well-defined and often discussed instructions given by both his immediate supervisor and by other management members with authority over him.

Appellant failed to provide any explanation why he did not contact the Chief of Sanitation or other designated personnel if he was unable or unwilling to reach his supervisor. He failed to provide any explanation why he was unable to call during working hours. Appellant chose not to comply with the instructions and procedures he knew were required to obtain leave.

Therefore, appellant did not have a valid reason for not obtaining leave.

Appellant testified he was ready, able, and willing to return to work. His testimony was not rebutted.

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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/she 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/she had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Appellant failed to prove by a preponderance of the evidence he had a valid reason for being absent on August 9 through August 19. He failed to present testimony or any other properly authenticated medical evidence from a physician or any other health care provider to substantiate his contention he was needed to provide medical care and/or emotional support for his wife on the relevant days.

Appellant also failed to prove by a preponderance of the evidence he had a valid reason for not obtaining leave. Respondent notified appellant on numerous occasions he was to obtain advance approval for scheduled medical appointments and vacation. Respondent notified appellant he was to obtain approval from his supervisor and that he was not to leave a message for the Office Technician relating to attendance. Appellant presented no evidence to support his contention that his supervisor improperly issued unreasonable, overly burdensome or discriminatory requirements. He offered no explanation why, if he did not want to discuss his personal situation with his supervisor, he did not contact other designated personnel who he knew could act in his supervisor’s place. He offered no explanation why he could not call during work hours.

Appellant chose to disregard respondent’s directives and policies because he does not get along with his supervisor. Appellant’s failure to comply with respondent’s directions and policies resulted in respondent’s decision to deny appellant’s leave. An employer has the right to expect an employee to report for work unless the employee has been excused for illness or injury or other non-medical reason. As set forth in Bettie Davis v. Department of Veterans’ Affairs (1986) 792 F. 2d 1111, 1113:

“An essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency.”

Appellant did not prove by a preponderance of the evidence he had a valid reason for not obtaining leave.

For the reasons set forth above, it is concluded the appellant should not be mandatorily reinstated to his prior position. Accordingly, the appeal should be denied.

Appellant retains permissive reinstatement rights to State service.

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that the appeal for reinstatement after automatic resignation effective August 8, 2002, is denied.