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DPA Case Number 03-S-0031 - Reinstatement After Automatic Resignation

​DPA Case Number 03-S-0031 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 23, 2003
By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on June 17, 2003, at Sacramento, California.
Appellant was present and was represented by Brian Caldeira, Labor Relations Representative, California State Employees Association (CSEA).
Linda Deos, 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.

I - JURISDICTION

Respondent automatically resigned appellant effective March 14, 2003, for being absent without approved leave from March 17 through March 21, 2003.1 Appellant filed a request (appeal) for reinstatement after automatic resignation on March 27. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant claimed he had a valid reason for being absent; a valid reason for not obtaining leave; and that he is ready, able, and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant originally testified he was unable to work March 17 through March 21 because he was under psychiatric care. He testified he was heavily medicated for treatment of depression. In support of his testimony he offered two doctor’s notes from the psychiatrist. One note was dated March 27 and excused appellant from work March 1 through March 31 for “medical reasons.” The second note was dated March 28. It stated that appellant was “incapacitated” during the week of March 17 through March 22 due to “medical problems” and that he was under the psychiatrist’s “hospital care” from March 24 through March 29.
Under cross examination appellant testified he was in a “behavioral center” from March 24 through March 29. He could not recall if he checked himself into the center or if he had been referred there by a doctor. He also testified that he had not seen the psychiatrist before entering the center on March 24 and that he has not seen him since his discharge on March 29. No physician or other medical health care provider was called to testify.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant had been on “leave restriction” since May 19, 2000. On September 28, 2001, he received a “Corrective Action Memorandum” outlining the steps required to receive approved leave. On February 5, appellant received a letter from his supervisor reminding him of the leave restriction requirements. In order to receive approved leave, appellant was required to make personal contact with his supervisor each day he was absent; see a doctor whenever he was absent from work for more than one day; and, provide medical substantiation for absences of two days or more.
Appellant did not contact his supervisor March 17 through March 21 and he did not receive approved leave for this period. Appellant argued he was physically unable to contact his employer March 17 through 21 to obtain leave because he was heavily medicated for treatment of depression. He testified he couldn’t tell the difference between night and day during this period.
Appellant did not present any evidence that he saw a doctor prior to or during the period March 17 through 21. He did not present any evidence that he was prescribed medication, or when it was prescribed. He also did not present any evidence to substantiate why such medication was prescribed. There was also no evidence addressing whether or not appellant ever submitted doctor’s verification to his employer of his need to be absent from work March 17 through 21 prior to the hearing.

V - READY, ABLE AND WILLING

Appellant testified he is currently ready, able, and willing to return to work and perform all the essential functions of his job. He submitted a June 16 doctor’s verification of his ability to return to work from his family practitioner. The verification released appellant to return to work as of June 17.
 
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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.
In this case appellant failed to prove he had a valid reason for being absent and for not obtaining leave. Appellant’s testimony regarding his reason for being absent and for not obtaining leave is inconsistent, unsubstantiated, and/or unreliable. Although appellant originally testified he was under the care of the psychiatrist the week of March 17 through 21, he subsequently testified that he had not been seen by the psychiatrist prior to his stay at the behavior center beginning March 24. Appellant presented no evidence that he saw any doctor during the period of March 17 through 21. The psychiatrist’s verification of appellant’s alleged illness was made after the period of illness at issue. Neither the psychiatrist nor any other health care provider was called to testify. The psychiatrist’s imprecise, unspecific medical verifications dated after appellant’s alleged period of illness are hearsay and are, without more, an unreliable basis on which to conclude that appellant was unable to work and incapacitated to the point he could not call his supervisor to inform him he was going to be absent. Appellant simply did not prove by a preponderance of the evidence that he had a valid reason for being absent or a valid reason for not obtaining leave. Based on the above findings, it is unnecessary to determine if appellant 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 March 14, 2003, is denied.
 
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FOOTNOTES

1. All dates are 2003 unless otherwise indicated.
 
  Updated: 5/7/2012
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