Final Non-Precedential Decision Adopted: May 20, 2004

By: Michael T. Navarro, Director

This matter was heard before Wesley M. Travis, Jr., Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on February 19, 2004, and at 9:00 a.m. on March 29, 2004, at Riverside, California.

Appellant, was present and was represented by himself, In Pro Per.

Jeanell Bradley, Staff Services Manager I, represented the Department of Transportation (DOT), respondent.

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

Respondent automatically resigned appellant effective July 28, 2003, for being absent without approved leave from July 29, 2003 through October 30, 2003. Appellant filed a request (appeal) for reinstatement after automatic resignation on November 13, 2003. The appeal complies with the procedural requirements of Government Code section 19996.2.

By letter dated October 30, 2003, respondent notified appellant that he would be considered to have automatically resigned from July 28, 2003 through October 30, 2003. Thereafter, appellant filed his appeal for reinstatement with DPA on November 13, 2003, claiming he has been on “Sick Leave-Work Stress related” since March 7, 2003.

Appellant claimed in his filed appeal that he had been on sick leave because of work stress. Appellant alleged the work stress was caused by his Supervisor, Chief, Organization Effectiveness Branch, since “March 7, 2003 and continuing.” The evidence established that appellant had a valid reason for being absent from March 7, 2003 through July 27, 2003, and that he timely filed Documentations of Medical Impairments (DMI) with his supervisor for this period. However, appellant presented no persuasive evidence that he had a valid reason for being absent from July 28, 2003, or anytime thereafter.

Appellant also alleged that his treating physician recommended that he should not be anywhere near his supervisor, District Personnel Liaison, and/or any other persons who were of management/supervisory status within DOT, District 11. However, neither appellant’s treating physician nor any other health care professional testified in support of this allegation. Appellant did not present any objective, unbiased evidence to corroborate or support his allegations. Thus, appellant failed to establish by a preponderance of the evidence that he had a valid reason for being absent after July 27, 2003.

Appellant was providing respondent with monthly DMIs while on sick leave from March 7, 2003 through July 27, 2003. The last DMI received by respondent was on July 7, 2003, which covered the period of July 7, 2003, for 21 calendar days, effectively clearing appellant to return to work on July 28, 2003.

On July 16, 2003, the supervisor mailed appellant a memorandum apprising him that all leave available to him would be exhausted on July 22, 2003. She directed appellant to contact her to discuss his leave balances. However, appellant failed to respond as requested. At hearing, appellant presented no persuasive evidence to excuse or explain why he failed to respond to his supervisor’s directive.

On September 29, 2003, the Supervisor sent appellant a memorandum regarding his failure to respond to her July 16, 2003 memorandum and his failure to report his medical status to her since July 7, 2003. This memorandum directed appellant to provide medical substantiation for his time off work beginning July 29, 2003. It also informed appellant that without said medical substantiation, he would be considered absent without leave (AWOL). The memorandum also directed appellant to contact either the Supervisor or the District Personnel Liaison no later than October 6, 2003. This memorandum was sent to appellant by regular mail and certified mail.1

The Supervisor and the District Personnel Liaison credibly testified that appellant failed to contact either of them or provide either with the requested medical information. Appellant admitted at hearing that he did not respond to the September 29, 2003 memorandum and that he had not obtained prior approval from his supervisor for being absent during the relative time period.

Appellant filed a workers’ compensation claim with the State Compensation Insurance Fund (SCIF) on July 21, 2003. On July 28, 2003, appellant received a letter from the Return-to-Work Coordinator from DOT’s Division of Human Resources (HR). This letter stated in part: “Your Workers’ Compensation file has been transferred from your District Safety Office to the Division of Human Resources at the Office of Southern California Services Branch in Irvine. [Name Omitted] is your Return-to-Work Coordinator and will be handling your file.” Appellant contended that this letter required that all documentation regarding his medical status be supplied to the HR “exclusively,” and that consequently he was no longer required to provide medical information to his supervisor after receiving the letter. However, there was no language in the July 28, 2003, correspondence that would relieve appellant from his obligation to provide his supervisor with medical information regarding his continuing leave of absence. At hearing, appellant conceded that there was no language in this letter directing that he need not supply any further medical information to his supervisor.

There was no evidence that appellant was told either verbally or in writing at any time that he was no longer required to keep his supervisor apprised of his continuing absence. The Return-to-Work Coordinator credibly testified that while she was handling appellant’s workers’ compensation file she never informed appellant that he need not contact his supervisor. She also testified that the June 28, 2003, letter from the Return-to-Work Coordinator from DOT’s Division of Human Resources was not intended to relieve appellant of his primary reporting responsibilities to his supervisor regarding his leave of absence. Thus, appellant’s assertion that he relied on Return-to-Work Coordinator from DOT’s Division of Human Resources’ June 28, 2003, letter as a basis for not remaining in contact with his supervisor is both unreasonable and unpersuasive.

Appellant further contended in his original appeal that the Return-to-Work Coordinator “indicated” to him that her office had his “medical release documents” spanning the time period from March 6, 2003 through November 2003. Appellant’s contention was misleading. The Return-to-Work Coordinator credibly testified that she did not receive any alleged DMIs from appellant relative to the AWOL period until November 5, 2003 - six days after appellant received his AWOL Notice. On this date, she received a cover letter from appellant dated October 30, 2003, with four alleged DMIs attached for the period of August 8, 2003 through November 30, 2003. These four alleged DMIs were unauthenticated and were, pursuant to a timely objection by respondent for lack of proper foundation, ruled inadmissible.

Appellant initially testified that he sent the October 30, 2003, cover letter and the attached alleged DMIs by certified mail. Upon cross examination, he admitted that he put the certification number on the cover letter but he did not want to spend the necessary funds to actually certify it. Appellant’s misleading testimony put his credibility at issue. The hearing was continued on February 19, 2004, to allow appellant an opportunity to lay a proper foundation for the four alleged DMIs. However, at the next hearing date, March 29, 2004, appellant again failed to lay a proper foundation. Neither appellant’s doctor nor anyone from the doctor’s office testified to authenticate the alleged DMIs. Respondent’s renewed objection was sustained.

Even if these four DMIs had been properly authenticated at hearing, their submission to HR on November 5, 2003, would have been untimely and otherwise ineffective for purposes of proper and adequate notification to appellant’s supervisor.

Thus, appellant failed to prove by a preponderance of the evidence that he had a valid reason for not obtaining leave.

Appellant presented no evidence at hearing that he 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 he had a valid excuse for being absent, whether he 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 he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Considering the totality of the circumstances, appellant failed to prove by a preponderance of the evidence that he had a valid excuse for being absent, and that he had a valid reason for not obtaining leave. In addition, appellant failed to submit any evidence that he was ready, able and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Office Technician (Typing) effective July 28, 2003, is denied.

 

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1. Appellant signed the Certified Mail Receipt on October 3, 2003.