print logo
Main Content Anchor

DPA Case Number 04-A-0132 - Reinstatement After Automatic Resignation

DPA Case Number 04-A-0132 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: February 23, 2005
By: Michael T. Navarro, Director


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 26, 2005, at Sacramento, California.
Appellant, was present and was represented by Attorney Ben Allamano.
Janice Snyder, Staff Counsel, represented the Department of Health Services (DHS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent automatically resigned appellant effective close of business October 15, 2004, for being absent without approved leave from October 18 through October 22, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on November 12, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant alleged he had a valid reason for being absent because he was under doctors’ care for a work-related injury. He alleged he had a valid reason for not obtaining leave because respondent knew he claimed a work-related injury and was seeking treatment; and, his supervisor did not notify him he had to call in each day he was absent. He also alleged he is ready, able, and willing to return to work.


Appellant testified he was unable to work from October 18 through October 22 because of work-related stress which resulted in insomnia and jaw and face pain. Appellant attributed his work-related stress to two counseling memoranda and to his working conditions. He alleged he was overburdened, not allowed sufficient time to test his blood sugar level as required by his diabetic condition, and that his supervisor and manager did not provide him with the large screen computer monitor he had requested because of his vision problems.
In support of his contention he was unable to work from October 18 through October 22, appellant provided several Progress Records, Visit Verification Forms and Industrial Work Status reports (medical reports) from two Kaiser physicians. These medical records indicate appellant saw one physician on October 8. At that time, the physician gave appellant a Patient Progress Record that indicated appellant could return to work with no restrictions on October 12.
On October 12, appellant did come into the office but he did not return to work. He came in to give his supervisor his workers’ compensation injury claim form and the physician’s October 8 report indicating he could return to work on October 12. At that time, appellant informed the supervisor that the physician had verbally told him not to return to work on October 12, but rather to get an appointment with an Industrial Medicine physician.
Appellant’s testimony regarding his first appointment with the Occupational Medicine physician he saw based on the physician’s alleged recommendation, was conflicting. Appellant first testified he told his supervisor he had an appointment with the Industrial Medicine physician on October 13. He then testified he reported to the Industrial Medicine Clinic on October 13, but he could not get an appointment until two weeks later. At still another point, appellant testified he made an appointment on October 8 to go to the Occupational Medicine physician.
Appellant did not present any medical records that indicate he saw any physician from October 12 through October 26. The medical records presented by appellant indicate he saw both physicians on October 27. The second physician took appellant off work from October 27 through November 8. During appellant’s visit to the first physician on October 27, Appellant asked him to back date the health care provider certification to indicate he was ill and unable to work from October 12 through October 26. The first physician did back date the report as requested. Appellant continued treatment with the second physician through January 13, 2005. The second physician’s reports indicate appellant was unable to work through January 26, 2005. There was no evidence appellant continued treatment with the first physician after his October 27 visit. No physician or other health care professional was called to testify.


Appellant argued he took reasonable steps to obtain leave. Appellant knew he was supposed to call his supervisor each morning when he was not going to report to work. He testified that when he spoke with the supervisor on October 12, he asked her if he still had to call in every day because he was under a doctor’s care for a workers’ compensation injury. Appellant testified the supervisor did not respond. Therefore, appellant testified he believed he did not have to call in every day. Appellant also testified his supervisor told him that he would need “an additional doctor’s note” to excuse his absence.
Appellant did not contact his supervisor or manager at any time after October 12 to either provide medical substantiation of his inability to work or to report he would be absent. Appellant’s supervisor and manager left at least one message for appellant at his home after October 12. Appellant never returned the call.
After receiving notice of his automatic resignation, appellant responded by providing copies of the first physician’s October 27 medical report indicating he was medically unable to work from October 12 through October 26 and copies of the second physician’s October 27 report indicating appellant continued to be unable to work through November 8.


Appellant testified he was ready, able, and willing to return to work. Appellant presented a January 13, 2005 report signed by Hellman releasing him to work as of January 26, 2005.
* * * * *


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. Appellant had no verification of his need to be off work from October 18 through October 22 until October 27, five days after respondent mailed appellant his notice of automatic resignation. Appellant did not see any physician between October 13 and October 27. He self-diagnosed that he was unable to work between October 13 and October 27. Medical documentation completed after the period of the alleged disability, at the request of the patient, when the patient has not been seen by the physician during the back dated period, and when the documentation is completed after the notice of automatic resignation was issued, is an unreliable basis on which to conclude appellant had a valid reason for being absent. Neither the first physician nor any other medical provider was called to testify regarding appellant’s ability to work.
Appellant also failed to prove he had a valid reason for not obtaining leave. It is simply unreasonable to conclude that no response from a supervisor is a basis on which to conclude that the normal and customary practice of keeping your employer apprised of your availability to work is rescinded. On October 12, neither appellant nor his supervisor knew if his workers’ compensation claim would be accepted; whether he would be disabled or for what length of time; or whether he would require ongoing treatment. Appellant made no effort whatsoever to keep his employer informed of his work status. An employer has a right to expect an employee to report for work unless the employee has been excused for illness or injury or for other non-medical reason. As set forth in Bettie Davis v. Department of Veterans’ Affairs (1986) 792 F.2d 1111, 1113:
“... an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency.”
Appellant proved he is ready, able and willing to return to work.
* * * * *


that the appeal for reinstatement after automatic resignation from the position of Staff Services Analyst (General) effective close of business October 15, 2004, is denied.
* * * * *


1. All dates are 2004 unless otherwise indicated.
  Updated: 5/21/2012
One Column Page
Link Back to Top