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DPA Case Number 02-Y-0146 - Reinstatement After Automatic Resignation

DPA Case Number 02-Y-0146 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: April 4, 2003
By: Gloria Moore Andrews, Chief Deputy Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 17, 2003, at Sacramento, California.
Appellant was present and was represented by Linda Lohman, Labor Relations Representative, California State Employees Association (CSEA).
Joan Branin, Labor Relations Counsel, Department of Personnel Administration, represented the Secretary of State (SOS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

Respondent automatically resigned appellant effective November 7, 2002,1 for being absent without approved leave from October 23 through October 30. CSEA filed a request (appeal) for reinstatement after automatic resignation with the State Personnel Board (SPB) on November 26, 2003. SPB forwarded the appeal to DPA. DPA received the appeal on December 19. The appeal complies with the procedural requirements of Government Code section 19996.2 and California Code of Regulations Title 2, section 599.904.

II - CAUSE FOR APPEAL

Appellant claimed he should be reinstated because his illness during the relevant period was a valid reason for his absence, his employer failed to grant him leave even though he provided the medical documentation requested, and he is ready, able, and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant last worked on October 2. He alleged he was absent October 23 through October 30 (the dates he was charged with being absent without leave) because he had been continuously ill and unable to work from October 3 until November 7. Appellant had no prior history of extended illness.2
In support of his claim, appellant submitted a “Visit Verification/Family Leave Health Care Provider Certification” (Visit Verification) from Kaiser Permanente dated November 4. This document indicated appellant had been ill and unable to work since October 3. The nature of the illness which prevented appellant from working October 23 through October 30 could not be determined through the information provided on this form. Neither appellant nor any other health care provider offered testimony in this regard.
Appellant testified he obtained treatment for his illness from his treating physician on “10-3, 10-9, 10-11, 11-4, and 11-6.” He submitted a white, undated slip in support of this testimony. The slip does not indicate the year of the appointments, that appellant kept these appointments, or that the appointments were related to a condition that prohibited appellant from working during October 23 through October 30. Although appellant had previously notified respondent he was obtaining medical treatment on October 7 and 17, he provided no substantiation of treatment on these dates.
Appellant also testified he was unable to work from October 23 to October 30 based on information he received from his physician during either an October 21 or October 22 appointment. Appellant’s testimony regarding October 21 and 22 medical appointments was inconsistent. He first testified that during his October 22 appointment he was told he would be out for an extended period and that he immediately phoned his supervisor to advise him. He subsequently testified that he had an appointment with his physician on October 21 and that it was during this visit he learned he would be out for an extended period. Appellant provided no medical substantiation of an appointment with his physician or any other health care provider on October 21 or 22.
The record shows that when appellant called his supervisor on October 21, he did not mention any extended illness or that he would be out for any extended period of time. He simply said he would not be in “today.” Likewise, when appellant called his supervisor on October 22, he did not mention any extended illness. He simply reported he was going, “...to be out ‘til further notice.”
Appellant’s testimony regarding the circumstances surrounding and the necessity for his absence for October 25 through October 30 is an unreliable basis on which to determine he had a valid reason for being absent during the relevant period. Appellant did not place on the record testimony from any medical doctor or other health care professional to substantiate his claim that he was ill and unable to work during the period of October 23 through October 30 or to otherwise authenticate relevant documents.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

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 failed to prove he had a valid reason for being absent. Appellant’s inconsistent testimony was insufficient to establish by a preponderance of the evidence that he had an extended illness which prevented him from working from October 23 through October 30.
No medical doctor or other health care professional was called to substantiate appellant’s claim he was ill during the relevant period or to properly authenticate relevant documents. The November 4, medically unauthenticated, somewhat illegible single Visit Verification issued after the date of the extended illness and after the date a notice of automatic resignation was issued is an insufficient basis to conclude the appellant in this case had a valid reason for being absent October 23 through October 30.
Respondent refuted appellant’s illness and objected to the documents submitted by appellant in support of his claim as hearsay. Appellant was advised at hearing that the ALJ was unable to make a determination based on hearsay evidence. (Government Code section 11513 (d).) Appellant made no visible efforts to obtain any reliable non-hearsay medical evidence to establish his need to be off work October 23 though October 30.
Based on the above, it is unnecessary to determine if appellant had a valid reason for not obtaining leave or if he is ready, able, and willing to return to work.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective November 7, 2002, is denied.
 
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FOOTNOTES

1. All references are to the year 2002, unless otherwise indicated.
2. Although respondent notified appellant that he may be eligible for leave under the Family Medical Leave Act (FMLA), appellant did not apply for leave under this provision.
  Updated: 5/22/2012
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