DPA Case Number 04-G-0106 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 2, 2005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 April 27, 2005, at Sacramento, California.

Appellant, was present and was represented by Brian Caldeira, Labor Relations Representative, Service Employees International Union (SEIU).

Richard Stewart, Staff 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.

Respondent automatically resigned appellant effective June 3, 2004, for being absent without approved leave from August 23 through August 27, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on September 14, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contended she should be reinstated because she believed she acted in accordance with respondent’s instructions to obtain leave and she is currently ready, able and willing to return to work.

Appellant’s reason for being absent was not clearly stated. She presented a pink copy of a Kaiser Permanente Visit Verification (hereinafter “medical verification”) dated August 20, that indicated she was seen on that day and that she had a “muscle tension headache.” The pink medical verification form was part a multiple page document. Except for the return to work date, all writing on the pink copy was the result of an impression on the first page of the form. The return to work date on the pink copy had been written over in ink reflecting a writing made on the pink copy itself. The writing in ink on the pink copy indicated appellant was unable to return to work until “8/28/04.” Appellant testified she could not read the original writing on the pink copy so she asked the doctor to clarify it. She testified the doctor clarified the date by writing directly on the pink copy.

Beginning August 23, appellant told her supervisor that she was not coming to work because she didn’t have a doctor’s note. It was undisputed that she offered no other reason for her absence.

The medical verification presented by appellant was inadequate on its own to support a valid reason for appellant’s absence. The verification indicated appellant had a “muscle tension headache.” It is unclear how this type of ailment could be diagnosed as precluding appellant’s work attendance for an additional week after she visited her doctor. The original writing on the pink copy of the medical verification is also problematic. No medical provider was called to testify. The medical verification is an inadequate basis on which to find appellant had a valid reason for being absent from August 23 through August 27.

In addition, appellant’s testimony at hearing regarding her reason for not coming to work was inconsistent with or at least created an unresolved ambiguity with the reason she gave her supervisor for not coming to work. Appellant did not tell the supervisor she was ill. When appellant talked to the supervisor the week of August 23, appellant only told the supervisor she was not coming to work because she was waiting to get a doctor’s note. According to appellant, she already had an August 20 doctor’s note that excused her from work through August 28.

Appellant failed to prove she had a valid reason for being absent.

Appellant argued she complied with the instructions provided to her in order to obtain leave and believed she had been granted leave. She also contended she did not know she was required to provide medical substantiation of her inability to work before she returned to work.

Appellant has a history of absences for various reasons. On March 8, appellant was given a memorandum regarding “Sick Leave Substantiation.” The memorandum provided in relevant part:

“. . . the approval of your absences for the reason of sick leave for yourself or a family member may be subject to substantiation by a licensed practitioner that you were unable to perform your duties on the given date(s). Therefore, on a case-by-case basis at the time you request this leave, the circumstances will be reviewed and you will be informed if substantiation will be required for that absence. (Emphasis added.)

When substantiation is required for an absence, you must provide the following information to me on your return from the absence: (Emphasis added.)

. . . .

Failure to provide this information as directed for a specific absence may result in the disapproval of the subject absence and the unauthorized absence will be considered an absence without leave (AWOL).” (Emphasis in original.)

Respondent also provided appellant with information regarding the Employees Assistance Program (EAP).

By August 16, appellant exhausted all of her sick leave, annual leave, personal leave plan (PLP) credits and leave permitted under the Family Medical Leave Act (FMLA). The supervisor sent appellant a memorandum that attached information about various benefits and options available to appellant if she continued not to work on a regular basis. She also reiterated the availability of the EAP. The supervisor instructed appellant to contact her by August 23 to let her know “if any of these options fit your [appellant’s] needs.” The supervisor also informed appellant that if she did not contact her, she would expect appellant at work on August 23.

Appellant contacted the supervisor on Friday, August 20. Appellant told the supervisor she had a doctor’s verification of her need to be off and that she would fax it to her. The supervisor told her staff to watch the fax machine for the verification. Appellant never faxed the verification to respondent.

Appellant contacted the supervisor again on Monday, August 23. Appellant told the supervisor she was waiting to get a doctor’s verification and that she had contacted the EAP. The supervisor told appellant something to the effect, “that was fine,” but as of that day she was considered absent without leave.

Appellant contacted Watkins again on Tuesday, August 24. Appellant again told the supervisor she was waiting to get a doctor’s verification. The supervisor told appellant she still needed the verification and if appellant did not get it to her she would be considered absent without leave.

Appellant contacted the supervisor on August 25, 26, and 27. On each of these days appellant reported she was “waiting on” documentation from the doctor. On each of these days, the supervisor told appellant she needed to provide the medical verification and she was being considered absent without leave.

Appellant issued the notification of automatic resignation on August 30. Appellant called the supervisor again on August 30. At that point, the supervisor told appellant she shouldn’t call her anymore. According to appellant, she believed her absence had been approved.

Appellant’s reliance on the March 8 attendance restriction stating she would not have to bring substantiation until she returned from the absence was unreasonable in light of her communications with the supervisor. The supervisor told appellant she was being considered absent without leave as early as August 23. Appellant took no action to prevent that from happening. According to her testimony, she had a doctor’s certification of her need to be absent through August 28. There was nothing that prohibited her from faxing this to respondent when she learned she was being considered absent without leave.

Appellant’s reliance on her call to the EAP to prevent her from being automatically resigned is also unreasonable. There was nothing in any communication presented at hearing that informed appellant that if she continued to be absent without verification, she would not be considered absent without leave. The August 16 options letter simply provided choices to appellant if she did not “work on a regular basis.”

Appellant failed to prove she had a valid reason for not obtaining leave.

Appellant testified without contradiction that she is ready, able, and willing to return to work.

 

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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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether 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 she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

As discussed above, appellant failed to prove she had a valid reason for being absent and a valid reason for not obtaining leave. Appellant testified without contradiction she 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 Computer Operator effective June 3, 2004, is denied.

 

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1. All dates are 2004 unless otherwise indicated.