Final Non-Precedential Decision Adopted: April 21, 2003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 April 15, 2003, at Sacramento, California.

Appellant was present and was represented by Brian Caldeira, Labor Relations Representative, California State Employees Association (CSEA).

Glenn Jones, Senior Counsel, 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.

By letter dated January 29, 2003, respondent notified appellant he was being automatically resigned effective January 21, 2003, for being absent without approved leave from January 15 through January 29, 2003. CSEA filed a request (appeal) for reinstatement after automatic resignation on February 10, 2003. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant claimed he had a valid reason for being absent because he was ill. He claimed he should have been granted leave because he complied with the requirements for obtaining leave and he argued he was ready, able, and willing to return to work.

Appellant was diagnosed with chronic depression and insomnia in June 2000. He testified his absence from January 15, through January 29, 2003, was the result of these conditions. Appellant presented a January 30, 2003, “Kaiser Visit Verification/Family Leave Health Care Provider Certification” (visit verification) to corroborate his testimony. The visit verification indicated appellant saw his treating physician on January 9, 2003. It also indicated that appellant had a “Serious Health Condition” defined as a “chronic condition requiring treatment.” Appellant’s treating physician determined this condition rendered appellant unable to work from January 2, through January 29, 2003. Appellant had a valid reason for being absent.

Appellant contended he should have been granted leave because he complied with respondent’s requirements to obtain leave. It was undisputed appellant was required to call his supervisor to report he would be absent from work. It is also undisputed that appellant called his supervisor to advise him he would be absent numerous times during the period January 15, through January 29, 2003.

There was no evidence that appellant had been told what information was required when he telephoned his supervisor to report he would be absent or that appellant had been notified he was required to provide written medical substantiation of his absence during the relevant period. Although respondent notified appellant by letter dated January 14, 2003, that medical substantiation for sick leave may be required on a case-by-case basis, there was no evidence that respondent requested or required this information from appellant in this instance before it notified him that he was being automatically resigned effective January 21, 2003.

The evidence presented shows appellant complied with respondent’s requirement that he call his supervisor when he was unable to come to work.

Respondent argued he is ready, able, and willing to return to work. This is consistent with the January 30, 2003, visit verification and the November 29, 2002, “Certification of Physician or Practitioner” form submitted by appellant in connection with his Employee Request for Family or Medical Leave.

 

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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.

The preponderance of the evidence supports that appellant was ill during the relevant period January 15, through January 29, 2003. The evidence also shows that appellant telephoned his supervisor numerous times to report he would be absent. There was no evidence that appellant had been informed that he was required to do anything more to obtain leave during this period. The evidence relied on by respondent to reject appellant’s request for Family Medical Leave as well as appellant’s January 30, 2003 medical visit verification also supports appellant’s claim that he is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective January 21, 2003, is granted. Appellant should be reinstated to his position, without back pay, no later than two weeks following issuance of this decision.