print logo
Main Content Anchor

DPA Case Number 03-W-0100 - Reinstatement After Automatic Resignation

DPA Case Number 03-W-0100 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: December 5, 2003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 9:00 a.m. on November 20, 2003, at Lancaster, California.
Appellant was present and was represented by Joe Bader, Regional Administrator, Union of American Physicians & Dentists (UAPD).
Margaret Teague, Staff Counsel, represented the Department of Corrections (CDC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On August 25, 2003,1 respondent notified appellant that effective August 30, he was being automatically resigned for being absent without approved leave from July 31 through August 25. At hearing the parties amended the dates of unapproved leave to August 4 through August 25. UAPD filed a request (appeal) for reinstatement after automatic resignation on September 15. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant contended he had a valid excuse for being absent, a valid excuse for not obtaining leave, and that he was ready, able and willing to return to work.


Appellant’s testimony regarding his reason for being absent from work at CSP-LAC vacillated between his being prohibited by his doctor from driving more than one hour at a time and his being physically unable to work under the conditions existing at CSP-LAC.
Appellant alleged he injured his shoulders, neck, and back by lifting medical charts while working at CSP-LAC in April 2002. He was initially off work for six weeks, worked a modified schedule, and then did not work at all from February through July 30.
Appellant returned to work on a modified schedule beginning July 31. He was scheduled to work on Mondays and Thursdays. He had Tuesdays and Wednesdays off to “attend medical treatment and rest.” Fridays was appellant’s regularly scheduled day off.
On Friday, August 1, appellant contacted CSP-LAC’s Return-to-Work Coordinator. He stated he was physically unable to work because of pain, he was not sleeping, and he believed he needed to be off work for three months when he could possibly return on a part time basis.
Appellant went to a doctor on Monday August 4. The doctor diagnosed neck, shoulders and back pain and spasms and hypertension. The doctor suggested appellant do “No long distance-no more than one hour in one setting;” “Continue present acupuncture and medication treatment;” and “Re-evaluate in one month.” The doctor did not take appellant off work nor did he indicate appellant needed any modified duties or working conditions. The doctor also did not clarify whether his suggestion referred to avoiding driving or sitting.
Appellant faxed a medical note with the above diagnosis and suggestions to the Return-to-Work Coordinator on August 4. He also informed the Return-to-Work Coordinator that he was temporarily unable to work at CSP-LAC because driving more than one hour caused significant stress to his body. Appellant lived in Camarillo, California which required him to drive more than one hour to come to work at CSP-LAC.
The Return-to-Work Coordinator advised appellant respondent would modify his work hours to allow him additional time to make the commute. The parties also discussed alternative methods of transportation. Appellant did not accept any suggestion of alternate transportation or modified work hours to facilitate his commute. Appellant did not send any clarifying information to respondent from his doctor regarding any work restrictions or modifications or his need to be off work.
Although appellant was unable to work at CSP-LAC in July and August, he worked at the Ventura Medical Care Center during these months. In July he worked 21 days. He worked anywhere from eight to thirteen hours per day. In August, appellant worked at the Ventura Medical Care Center 25 days. His worked between eight and thirteen hours per day.
Appellant testified he was able to work at the Ventura Medical Care Center because it was less than an hour commute and the working atmosphere and conditions were better there than at the CSP-LAC. He testified that at the Ventura Medical Care Center he was able to lie down if necessary, close his eyes for a few minutes if needed, and that he did not have to lift anything or walk to see patients. He noted he was unable to do this at CSP-LAC and that he had been disciplined in the past for closing his eyes while on duty. Appellant did not present any medical evidence that he was required to periodically lie down or close his eyes or that he was unable to walk. No physician or other health care professional was called to testify.


Appellant asked the Return-to-Work Coordinator for a three-month leave of absence on August 1. The Return-to-Work Coordinator told appellant he would have to call his supervisor to request leave. Appellant contended he called and left a message for his supervisor requesting leave. The supervisor testified he did not receive any message from appellant and that he did not approve leave for appellant.


Appellant testified he is still recovering from his injury and cannot drive more than one hour. He also testified that if he were returned to work, he would rent a hotel room in Lancaster. He further testified that if he were returned to work, he hoped to get a reasonable accommodation from respondent which would allow him to work part time. Appellant also presented a letter from his physician dated October 23 stating that appellant requires further recovery before he can start working at CSP-LAC.
* * * * *


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.
Appellant failed to prove he had a valid reason for being absent, a valid reason for not obtaining leave, and that he was ready, able, and willing to return to work.
Appellant failed to present reliable medical evidence to support his contention he was unable to work at CSP-LAC during the relevant period while at the same time he was physically capable of working up to 13 hours per day at the Ventura County Care Center. No physician or other medical care provider was called to testify.
Appellant’s supervisor credibly testified he did not receive a message from appellant requesting a leave of absence and that he did not receive medical substantiation of appellant’s inability to perform the essential functions of his job at CSP-LAC.
Appellant presented no evidence he was willing to return to work at CSP-LAC in his full-time position or that he was ready to do so.


that the appeal for reinstatement after automatic resignation effective August 30, 2003, is denied.
* * * * *


1. All references are to the year 2003 unless otherwise specified.
  Updated: 5/21/2012
One Column Page
Link Back to Top