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DPA Case Number 04-H-0070 - Reinstatement After Automatic Resignation

DPA Case Number 04-H-0070 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 12, 2004
By: David A. Gilb, Chief of Labor Relations


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on September 30, 2004, at Sacramento, California.
Appellant was present and was represented by John W. Long, Labor Relations Representative, California State Employees Association (CSEA).
Chian He, 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 May 24, 2004, for being absent without approved leave from May 31, 2004 through June 4, 2004. Appellant’s representative filed a request (appeal) for reinstatement after automatic resignation on June 18, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant argued she had a valid reason for being absent because she was mentally ill. She argued she had a valid reason for not obtaining leave because during the relevant period she believed she was calling her employer as required. She also contended she is ready, able, and willing to return to work.


It was uncontested that appellant had a valid reason for being absent because she was mentally ill.
Appellant is a veteran. She served in the Desert Storm campaign and is now a member of the Army Reserve. She testified that she incurred service-related back and psychiatric injuries during her active duty. She was hospitalized for her injury for the first time in October, November and December 2000.
Appellant was considered a good employee until approximately January. At some point appellant stopped taking her medication. She testified that although her condition gradually deteriorated, she believed she was functioning “okay” without the medication.
Appellant’s supervisor and her co-workers began to notice changes in appellant’s behavior and work performance. Appellant started wandering. She began scribbling extraneous sometimes incoherent notes on documents. She became slower in performing her work duties. She became withdrawn. Her supervisor began receiving complaints from claimants and employees because of appellant’s irrational behavior when she conducted telephone interviews. Appellant began to miss work. She began having strange thoughts. When she viewed an Egyptian statute in her co-worker’s work area, she began thinking that she was a member of the Egyptian royal family. She believed respondent was giving her “bogus claims.” She had strange dreams.
Appellant’s father testified there were times when she could not rationally communicate. He also testified he realized his daughter was ill and he attempted to have her hospitalized in April or May. He testified the doctors would not commit his daughter because she was not deemed to be a danger to herself or others.
As a result of appellant being taken into police custody on or about June 17, she was taken to San Mateo County Peninsula Hospital’s Mental Health Department. She was transferred from this facility to the Veterans Affairs Medical Center at Palo Alto, California on June 18. She remained there for psychiatric inpatient care until July 20.


In April, respondent informed appellant by memorandum that she was to call in between 7:00 a.m. and 8:00 a.m. if she was unable to report to work. She was instructed to call one of three specific numbers. These telephone numbers did not have voicemail. It was not possible to leave a message when these numbers were called. These telephone numbers were assigned to various EDD personnel to ensure that employees calling to report their absence would be able to speak with a management representative. Appellant was instructed she had to call in every day she was absent and she was reminded of the call in procedure during several meetings with respondent during the period of April and May.
From April through July, appellant changed her residence frequently. She left her father’s home sometime in April and moved to a house in South San Francisco. From there she moved into a Deluxe Inn in San Francisco. She next moved into a Hampton Inn in Daly City. She eventually became homeless.
During the time appellant was moving from place to place, she continued to call her employer on a sporadic basis. She notified respondent she had moved to the Hampton Inn.
On or about May 20, respondent sent appellant a letter at the Hampton Inn informing appellant she must report to work or provide medical substantiation for her absence by May 27 or she would be automatically resigned. Respondent included NDI and Family Medical Leave Act forms with this correspondence. Respondent did not receive any response from appellant.
On June 8, respondent notified appellant she was being automatically resigned effective May 24. This letter was mailed to appellant at her father’s address at [address omitted]. This was the address appellant had in her personnel file. Appellant’s father received this letter and apparently other letters from respondent regarding appellant’s absence. He took steps to contact respondent on his daughter’s behalf. However, none of the information appellant’s father provided reliably addressed appellant’s ability to return to work, her medical condition, or her need to be absent from May 31 through June 3. Appellant’s father did not know where appellant was at this time.
Respondent did not receive additional information from or about appellant until it was contacted by the Daly City Police on or about June 17. The Police contacted EDD to obtain information on how to reach appellant’s family.
Appellant never provided respondent with any medical substantiation of her need to be absent May 31 through June 4.
Appellant argued her mental illness impaired her judgment. She testified she believed she did call respondent regularly and she believed she was following the correct procedure for obtaining leave. Appellant also testified she lost track of time during her illness.
Appellant last worked on or about May 3. The evidence shows that during April and May she called in but did not follow the required procedures. At various times she called various people and left voicemail messages regarding her absences. Some of the voicemail messages were left on Saturdays and Sundays. In at least one of the weekend messages appellant commented she couldn’t understand why all the telephones at EDD were not working that day. In a second message she stated she tried to call her previous manager who had retired a year earlier. When she did speak to someone, the evidence shows her comments were abbreviated and she, on more than one occasion, would not finish a conversation but rather would inappropriately and abruptly hang up.
Appellant testified she did not either review or receive any documents from respondent until late June or July while she was in the Veterans Hospital.


Appellant testified she is now taking her medication and her condition has improved. She continues to receive psychiatric care. She has regular appointments every three weeks. She testified she could now effectively perform her job duties. She has been working since July for her Army Reserve Unit doing office tasks to make up time she missed as a result of her illness. Appellant did not provide medical substantiation of her ability 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 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.
Appellant has met her burden of proof in this case. It was undisputed she was mentally ill during the period she is charged with being absent without leave. The evidence shows that appellant did not obtain leave because her actions and judgment were colored by her medical condition. She did the best she could under the circumstances to meet the requirements to obtain leave. Appellant is ready, able, and willing to return to work. Her employment with the Army Reserve Unit and demeanor and presence at the hearing tend to indicate she is now able to adequately function in her job duties. If her job performance or actions become questionable in the future, after she returns to her position, respondent is free to exercise its right to seek a fitness for duty medical examination under Government Code section 19253.5.
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that the appeal for reinstatement after automatic resignation effective May 24, 2004, is granted. Respondent is ordered to reinstate appellant to her previous position and duties within three weeks of receiving this decision.
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1. All dates are 2004 unless otherwise indicated.
  Updated: 5/29/2012
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