DPA Case Number 03-B-0095 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: December 23, 2003

By: Gloria Moore Andrews, Chief Deputy Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on October 30, 2003, at Sacramento, California. The record remained open until November 21, 2003 to allow submission of a declaration by appellant’s treating physician and potential response from respondent. The declaration was received by DPA on November 14, 2003 and respondent did not file any opposition. The declaration and relevant exhibits were therefore entered into evidence and the record closed on November 21, 2003.

Appellant was present at the October 30, 2003 hearing and was represented by Claire Iandoli, Staff Counsel, California State Employees Association (CSEA).

Jennifer Berry, Senior Staff Counsel, represented the Department of Motor Vehicles (DMV), respondent.

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

On August 26, 2003, respondent mailed appellant notice that she was being automatically resigned effective September 9, 2003 for being absent without leave since July 14, 20031. Appellant testified she received this notice on August 27. On August 28, respondent sent appellant an amended notice informing her that effective September 9 she was being automatically resigned for being absent without leave since August 13.

CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on September 3. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contended she had a valid reason for being absent from work because she was ill; she had a valid reason for not obtaining leave because she was not adequately notified of the requirements she had to fulfill to obtain leave; and, she was ready, able and willing to return to work.

Appellant was off work from August 13 to August 30 because of illness. She testified her illness was a result of various personal stresses and that her illness was exacerbated by an adverse action she received on May 20. On May 21, she had an anxiety attack at work and was taken to the emergency room by ambulance. Her stress-related illness was further complicated when she learned in June that she was pregnant.

Appellant presented testimony and documentation from her treating gynecologist that she had been receiving continuing treatment and that she was unable to work for the relevant period beginning August 13 through August 30.

Appellant argued she attempted to comply with the instructions she was given in order to obtain leave. She also argued that she had followed these instructions previously and had been granted leave.

Appellant had received an adverse action in May based on her attendance. She had been counseled by both her immediate supervisor, and her second level supervisor. Although her immediate supervisor was not called to testify, it was undisputed that this supervisor instructed appellant to call in each day she was absent. Appellant called in each day during the period at issue.

The second level supervisor testified that both she and appellant’s immediate supervisor instructed appellant to provide doctors’ verifications for the dates she was absent. She also testified appellant had been instructed that these verifications needed to include the “general nature of the illness.” The second level supervisor testified that this was important because in the past respondent had questioned the truthfulness of appellant’s stated reasons for her absence. The second level supervisor also testified that she had previously not accepted a doctor’s verification from appellant because it did not include the general nature of the illness.

It was undisputed that appellant came into the office on August 25. What happened during this office visit is contested. Appellant testified she came into the office to give the second level supervisor a doctor’s note verifying her absence for the period July 18 through August 30, but that the second level supervisor refused to accept the note because it did not have a “diagnosis.” The second level supervisor testified appellant never gave her the doctor’s note because appellant decided the note revealed too much of her personal information. The second level supervisor admitted that she told appellant that the doctor’s verification had to include a “diagnosis.” Appellant told the second level supervisor she would get the appropriate information.

Appellant obtained a note from her doctor on August 27 which excused her from work August 1 through August 30. This diagnosis on this note indicated, “stress related.” On September 22, appellant got a corrected doctor’s verification stating she was unable to work from July 17 through August 30. This note also indicated she was unable to work because she was “experiencing stress related problems.”

Appellant did not present either the August 17 or September 22 notes from her doctor to respondent. She testified she did not do so because by the time she got the notes that contained the requested diagnosis and covered the appropriate dates, she had been notified she was being automatically resigned.

Appellant testified that the personal problems and decisions that had been causing her anxiety were resolved and that she was ready, able, and willing to return to work. Her treating gynecologist testified that he observed an improvement in her attitude and manner and that he believed she was 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 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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether 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 she had a valid excuse for her absence and failure to obtain leave and that he/she is currently able to return to work.

Appellant has met her burden of proof in this case. Appellant was unable to work from August 13 through August 28 because she was ill. Appellant called in each day as instructed by her immediate supervisor. When appellant was informed for the first time on August 25 that she needed to provide a “diagnosis,” she told her supervisor she would obtain that information. Respondent obtained the required information within three days. However, by this time respondent had already initiated and sent two notices advising appellant she was being automatically resigned. Appellant acted in good faith. Appellant’s failure to provide the doctor’s verifications to respondent after being notified she was being resigned is understandable in this instance. Appellant is ready, able and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective September 11, 2003, is granted. Appellant is to be reinstated without back pay no later than 14 days after receipt of this decision by respondent.

 

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FOOTNOTES

1. All further references are to year 2003, unless otherwise indicated.