print logo
Main Content Anchor

DPA Case Number 03-R-0112 - Reinstatement After Automatic Resignation

DPA Case Number 03-R-0112 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: January 14, 2004
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 9:00 a.m. on December 18, 2003, at Riverside, California.
Appellant, was present and was represented by Henry Walton, Labor Relations Representative, California State Employees Association (CSEA).
Anthony Mischel, Staff Counsel, represented the Department of Industrial Relations, (DIR), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On October 2, 2003, respondent notified appellant that she was being automatically resigned effective October 10, 2003, for being absent without approved leave from September 22, 2003 through October 2, 2003.1 CSEA filed a request (appeal) for reinstatement after automatic resignation on October 9. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant claimed she should be reinstated because she had valid reasons for being absent; she attempted to comply with respondent’s requirements to obtain leave; and, she was willing to return to work.


Appellant testified she suffers from a chronic eye condition which has caused her to miss work in the past. She testified that this chronic eye condition coupled with personal problems resulted in depression. She testified she was so depressed she could not get out of bed to come to work or see a doctor from September 22 through October 2.


On September 19, appellant received a memorandum from her supervisor that instructed her as follows:
“.... (After a day of sick leave usage for you or a family member, you are required to provide a physician’s or licensed practitioner’s substantiation in writing.) The substantiation shall be obtained during the period of the absence, and confirm that you were unable to work for the period of your absence indicating the general nature of you or your family member’s illness or injury and prognosis. .... Failure to provide adequate substantiation will result in a denial of the sick leave request and any absence will be recorded as AWOL. ....”
Appellant read and discussed this memorandum with her supervisor on September 19.
Appellant testified she did not see a physician during this period because she was too depressed to get out of bed. Appellant further testified that when she was able to get out of bed to obtain treatment, her new eye doctor refused to verify her inability to work prior to the time the physician began treating appellant. Appellant did not indicate whether or not she sought treatment for depression or whether or not she attempted to obtain verification of her inability to work because of depression.


Appellant testified she 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 she had a valid excuse for being absent, whether 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 she had a valid excuse for her absence and failure to obtain leave and that is currently able to return to work.
Appellant failed to meet her burden of proof in this case. She failed to present any reliable evidence that she was unable to work or obtain treatment from September 22, 2003 through October 2, 2003 either because of her eye condition or because of depression. Appellant’s physician’s refusal to verify appellant’s inability to work based strictly on appellant’s self diagnosis of her eye condition does not change this analysis.
Based on the above, it is unnecessary to determine if appellant is ready, able, and willing to work.


that the appeal for reinstatement after automatic resignation from the position of Senior Legal Typist effective October 10, 2003, is denied.
* * * * *


1. All dates are 2003 unless otherwise noted.
  Updated: 5/21/2012
One Column Page
Link Back to Top