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DPA Case Number 04-B-0079 - Reinstatement After Automatic Resignation

DPA Case Number 04-B-0079 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: September 20, 2004
By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on September 8, 2004, at Sacramento, California.
Appellant was present and was represented by Sondra Allinice, President, District Labor Council 790, Service Employees International Union, Local 1000, California State Employees Association (CSEA).
Kathleen Yates, Staff Counsel III (Specialist), represented the Department of General Services (DGS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

On July 9, 2004, respondent notified appellant he was being automatically resigned as of July 30, 2004, for being absent without approved leave from June 10, 2004 through July 9, 2004. CSEA filed a request (appeal) for reinstatement after automatic resignation on July 27, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant contended 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 contended he was absent from June 10 through June 24 because he was ill. He contended he was absent from June 25 through July 9 because his supervisor would not allow him to return to work until he got a medical release stating he had no restrictions. He testified he was unable to get this release because his doctor said the medical release he authored on June 9 was sufficient and the doctor would not provide additional information because he had not been paid for prior visits.
Appellant testified he had medical problems with his right knee in late May. He testified it was swollen and numb and that he could barely move. He also testified the doctor cut the knee to remove a blood clot. Appellant testified he was released to return to work on June 1.
On June 1, appellant e-mailed his supervisor saying that he had gotten a release from the doctor “last friday [sic] and he is allowing me to go back to work tomorrow the 2nd of June 2004.” Although the Friday appellant referred to in the e-mail was May 28, the back to work slip appellant presented was dated May 27. At hearing appellant testified he received the slip on May 27, not May 28 as he indicated in his e-mail to his supervisor. Also, although appellant told his supervisor in the June 1 e-mail he was released to work on June 2 the doctor’s slip states he could return on June 1. Although appellant testified he returned to work on June 1, the evidence shows that he actually returned on June 2.
On June 2 appellant bumped his knee on a desk drawer while he was at work. It began bleeding. Appellant’s supervisor was called. Appellant called his ex-wife to take him to “the emergency room.” His insurance was through his ex-wife. Appellant and his supervisor discussed appellant going to Mercy General for treatment. The supervisor called the Health and Safety Coordinator and asked her to meet appellant at Mercy General. When the Health and Safety Coordinator arrived at Mercy General, she couldn’t find the appellant.
Appellant’s testimony about what happened after he left the work site is unclear and inconsistent. Appellant testified that he saw some doctor on the day he hurt his knee who referred him to his primary physician. He also testified he did not see his physician until the day after the incident. Appellant presented a medical slip which he testified was given to him on the day after the injury. That date would have been June 3. However, the medical slip he presented was dated June 2, the day of the incident as opposed to the day after the incident.
Also contrary to appellant’s testimony that he did not see his physician until the day after the incident, appellant’s testimony that he waited for the Health and Safety Coordinator to appear at his physician’s office on the day of the accident. The Health and Safety Coordinator never appeared at the office.
Appellant did not present any medical information from the physician he allegedly saw immediately following the accident who referred him to his physician. He did present two medical slips from his physician referencing the period after June 2. One slip was dated June 2 and the other was dated June 9. Respondent previously accepted the June 2 slip that excused appellant from work until June 10.
The June 9 medical slip excused appellant from work until June 24. It provided the same type of limited information that respondent had previously accepted in May 27 and June 2 medical slips from his physician. Given respondent’s previous acceptance of the above information and appellant’s June 2 incident at work, appellant is found to have a valid reason for being absent through June 24.
Appellant argued he had a valid reason for being absent after June 24 because his supervisor prevented him from working. He testified his supervisor insisted he provide documentation from his doctor saying he could return to work without restriction and his doctor refused to provide any more information other than what was on the June 9 medical slip because appellant’s medical bills had not been paid. Appellant’s argument is without merit. There was nothing that prevented appellant from obtaining such a clearance from another physician. Appellant testified he had continuing medical problems for which he obtained treatment beginning July 1. He provided no medical information either to his supervisor or at hearing regarding his medical ability to work after June 24. Since he was allegedly being treated for an unspecified medical condition, he could have obtained information regarding his ability to work and any restrictions that may or may not have been required from the physician treating him for his ongoing medical problems. Appellant provided no reason why he did not ask this doctor for the information he alleged his supervisor was requiring.
In addition, appellant’s testimony regarding dates is suspect. Appellant’s supervisor asked him to provide medical verification that he was released to work on June 22 when appellant attempted to return to work prior to the time appellant verbally reported his doctor authorized his release. Given his supervisor’s previous acceptance of similar releases from his physician, there is no reason to believe that if appellant would have presented his physician’s June 9 medical slip releasing him to return on June 24, his supervisor would not have accepted it. Therefore, appellant did not have a valid reason for being absent from June 24 through July 9.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant argued he did everything he was required to and was able to do in order to obtain leave.
Appellant had a history of attendance problems. On October 27, 2003, appellant’s previous supervisor gave him a memorandum outlining the procedure he was required to follow if he was unable to report to work. Appellant was instructed to call his supervisor or the State Printer within the first half hour of his work shift. If he left a voicemail message, he was instructed he must state the reason he was unable to report, when he expected to arrive or return to work and a number where he could be reached. Appellant was informed that he may be required to provide appropriate medical substantiation which was to include the general nature of the illness/injury, the anticipated length of absence, future appointments, and any restrictions upon returning to work. Appellant was also warned that if he was absent without leave for five consecutive working days, he could be subject to automatic resignation from State service.
The supervisor reiterated and reinforced the October 27, 2003 instructions to appellant in an April 1 e-mail.
On May 12, appellant, the State Printer and the supervisor met to discuss the procedures once again. During that meeting, the supervisor told appellant he was to call her or the State Printer if he was going to be absent. She gave him her cell phone number and told him to use if it he was unable to reach her on her office phone.
Appellant argued he provided respondent with medical verification of his need to be absent. Appellant’s testimony is unreliable. Appellant testified he brought the June 2 medical slip from his physician on June 2 and gave it to a second shift supervisor. The supervisor’s records reflected appellant brought the slip to work on June 7. The second shift supervisor was not called to testify.
Appellant testified he brought his supervisor the June 9 medical slip extending his off work time to June 24 on June 14. The supervisor’s records indicate appellant left a message for her on June 21 saying his doctor extended his time off until June 24. When appellant came to work on June 22 and did not have a note releasing him to work, his supervisor told him she required medical substantiation for the time he had been off work and that he was released to work. The supervisor testified and her records verified that she never received any medical verification for appellant’s absence past June 10. The supervisor’s testimony is credited over appellant’s testimony based on appellant’s inconsistent, unreliable testimony. In addition, the supervisor recorded the dates of appellant’s interaction with her thus making her testimony inherently more reliable than appellant’s obviously confused recollection.
Even if appellant’s testimony regarding the dates he provided respondent with medical verification was credited, his argument that he adhered to the required procedures would still fail. He failed to call his supervisor daily on her office or cell phone as he was instructed on May 12; he failed to provide a number where he could be reached; and, according to his own testimony, he left messages with employees other than the State Printer or his supervisor.
Appellant failed to provide a valid reason for not obtaining leave.

V - READY, ABLE AND WILLING

Appellant argued he was ready, able, and willing to return to work on June 24.
 
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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.
Appellant failed to prove by a preponderance of the evidence that he had a valid reason for being absent for the period June 24 through July 9. The evidence supports that appellant was medically released to return to work on June 24. His argument that his supervisor prevented him from working after that because she required medical substantiation of his ability to return to work and documentation of any restrictions he may have when he did return to work is without merit. The evidence shows appellant failed to present his supervisor with medical verification of his inability to work after June 10. Respondent legally exercised its right to require appellant to provide substantiation of his ability to work because he reported to work on June 22 after telling his supervisor he was not released by his doctor to return until June 24. Appellant was not prohibited from presenting respondent with a medical release from any doctor. Appellant testified he was receiving medical treatment on July 1. Appellant provided no reason why he did not obtain the release to work from his physician at that time.
Appellant also failed to prove by a preponderance of the evidence that he had a valid reason for not obtaining leave. His testimony that he followed the required procedures by providing respondent with medical verification of his absence from June 10 through June 24 is simply not credible. The evidence shows he was either confused or that he manipulated his testimony. Either way, appellant’s testimony, without corroboration by any witness or professional health care provider, is an unreliable sole basis on which to conclude he should be reinstated. In addition, appellant failed to present any evidence that he appropriately called his supervisor on her office or cell phone, or left a phone number where he could be reached on a daily basis as required.
Given the above conclusions, it is unnecessary to decide 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 July 30, 2004, is denied.
 
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FOOTNOTES

1. All dates are 2004 unless otherwise indicated.
  Updated: 5/7/2012
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