print logo
Main Content Anchor

DPA Case Number 02-S-0102 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: February 6, 2003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 9:00 a.m. on November 26, 2002, at Riverside, California.
Appellant was present and represented himself.
Cynthia Z’Berg, Staff Counsel III, represented the Employment Development Department (EDD), 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 26, 2002, for being absent without approved leave from August 27, 2002, through September 4, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on September 13, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant claimed he should be reinstated because he was ill, he complied with respondent’s instructions to obtain approved leave, and he is ready, able, and willing to return to work.


Appellant testified he was ill and could not work beginning August 27, 2002.1 He sought treatment with his physician on this day.
Two medical verification documents were introduced relating to the physician’s treatment of appellant. One excused appellant from work for three weeks and is dated August 27, 2002.
The second document is an Urgent Care Patient’s Discharge Instructions sheet which diagnosed appellant’s condition as “work-related stress disorder.” This document instructed appellant to follow-up with his primary care physician as soon as possible, or if he was unable to see his physician, he was to come back to the Urgent Care facility in 14 days. This document also indicated appellant was to remain off work for three weeks and it references prescribed medications. It is also dated August 27, 2002.
These documents corroborate appellant’s contention he had a valid medical excuse for being absent.


Appellant contends his supervisor gave him permission to be absent August 27 through September 5. He testified that when he spoke with her on August 27, she told him to bring in a doctor’s note verifying his inability to work when he returned to work. Appellant also testified he attempted to contact his supervisor “almost everyday during his absence” to inquire about his leave balances. He contended he was unable to reach his supervisor on the dates he called because she was out of the office and unavailable. He testified he left her voicemail messages on these occasions.
Appellant went to Palm Springs, California on August 29. He remained there until at least September 5. There was no evidence that appellant informed respondent how he could be contacted during this period.
The supervisor testified she told appellant on August 27 that he had to fax a doctor’s note to her by the close of business on August 27 in order to obtain leave approval. She further testified that appellant left her a voicemail message on August 29 asking if the doctor had faxed the note and if he had not, appellant stated something to the effect that, “maybe he would bring it in.”
The supervisor testified she did not receive a copy of appellant’s August 27 medical verification until appellant faxed it to her on September 5, one day after the original notice of automatic resignation was mailed to appellant. She received a second copy on September 10 when a co-worker who checks the office mail slot brought her a copy of the medical slip and a handwritten note from appellant dated August 27.
The supervisor also testified appellant left her only two voicemail messages prior to September 5. The first of these was on August 27 prior to their conversation regarding the need for medical verification and the second was on August 29 when appellant stated he might bring in the doctor’s verification note. August 29 and September 4 were the only days the supervisor was out of the office during appellant’s absence. The supervisor testified she did not personally speak with appellant between August 27 and September 5. She also testified she never approved his leave because he failed to provide timely verification pursuant to her instructions and her past practice.
The supervisor’s testimony is credited over that of appellant. Appellant testified inconsistently.
Appellant originally testified he went to the doctor, went to get medication, and then went to the EDD office and put his medical verification slip through a mail slot in the door on August 27. He subsequently changed his testimony. He next testified he took sample medication at the doctor’s office, was then unable to bring the medical verification to the office himself, and therefore, gave it to his wife to put in the mail slot at the EDD office on August 27. Appellant subsequently testified he did not take medication for his condition. Appellant’s wife did not testify.
Appellant testified the supervisor told him on August 27 to bring in medical verification when he returned to work. Then, he testified how he went to great lengths to ensure the verification was brought to the EDD office on August 27. Appellant’s actions are inconsistent with his testimony that the note was not required until he returned to work.
Appellant also failed to explain an “8/30/02” date on an address label which was included on the “8/27/02” handwritten note found by EDD personnel in its mail slot on September 10.
Furthermore the witness called by appellant to corroborate his contention that he was not required to bring medical verification until he returned to work did not coordinate appellant’s position. The witness testified he told appellant he had to talk to his supervisor to determine when he was to provide the verification.
Appellant did not prove by a preponderance of the evidence he had a valid reason for not obtaining leave.


Appellant testified he was ready, able, and willing to return to work.
* * * * *


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/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.
Appellant proved by a preponderance of the evidence he was unable to work for the relevant period. He did not prove by a preponderance of the evidence he had a valid reason for not obtaining leave. His testimony was inconsistent in several areas and therefore unreliable. His actions were also inconsistent with his testimony. The witness called by appellant to substantiate his claim that he did not have to bring in medical verification until he returned to work did not support appellant’s contention.
Based on the above, it is unnecessary to determine if appellant is ready, able, and willing to return to work.
* * * * *


that the appeal for reinstatement after automatic resignation effective August 26, 2002, is denied.
* * * * *


1. All dates are 2002 unless otherwise indicated.
  Updated: 5/2/2012
One Column Page
Link Back to Top