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DPA Case Number 04-P-0096 - Reinstatement After Automatic Resignation

DPA Case Number 04-P-0096 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: November 22, 2004
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 November 16, 2004, at Riverside, California.
Appellant was present and represented herself.
Douglas A. Purdy, Staff Counsel, represented the Department of Parks and Recreation (DPR), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent automatically resigned appellant effective August 13, 2004,1 for being absent without approved leave from June 8, through August 5. Appellant filed a request (appeal) for reinstatement after automatic resignation on August 25. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant alleged she had a valid medical reason for being absent; she had a valid reason for not obtaining leave because she could not find a doctor to treat her; and, she was willing to return to work.


Appellant was injured in a car accident on June 25, 2003. She testified she suffered back injuries which have left her unable to stand or sit comfortably and she is in chronic pain. She testified she has been unable to work because of this medical condition since June 24, 2003. She testified she saw various orthopedic specialists and chiropractors for her injuries until May 19, 2004. Appellant presented no medical documentation and she did not call any medical personnel to support her testimony she was unable to work from June 8 through August 5.


Appellant testified she knew she had to provide medical substantiation to obtain leave. She provided medical substantiation that qualified her to use 12 weeks of FMLA leave, catastrophic leave, all of her accumulated leave balances, and NDI. She last supplied respondent with medical verification of her need to be absent at the end of April. This verification indicated appellant needed to be off work until June 5.
Although appellant testified respondent did not notify her that she ran out of leave and needed additional medical substantiation until August 2, the evidence contradicts this. On or about May 10, appellant was advised of her options. She was informed she could return to work with a medical release; she could request reasonable accommodation, medical transfer or demotion, temporary assignment, or medical leave of absence based on supporting medical documentation; she could request a disability or service retirement; or, she could voluntary resign. Appellant was instructed to complete a check off sheet and return it to the Manager of respondent’s Workers’ Compensation and Safety Unit by June 1. There was no reliable evidence appellant responded to the May 10 letter by calling the Manager and/or submitting the options check list. Appellant testified she did speak with the Manager and a co-worker some time in May or June. However, she could not recall the date and she did not provide any information that she ever discussed the options presented in the May 10 letter at any time.
On July 19 appellant’s new supervisor and Acting Manager of the Southern Service Center warned appellant she was absent without leave. The supervisor instructed appellant to return to work by July 27 and to provide medical substantiation for June 1 through July 19. The supervisor also instructed appellant that failure to follow these directions would result in her separation. Appellant was instructed to call the supervisor or another designee with questions and to deliver or fax medical documentation to the supervisor.
Appellant never reported to work by July 27, never provided medical verification of her absence and never contacted her supervisor. Although appellant testified she left a voice mail message for the designee asking her to call her, the designee credibly testified she received no contact from appellant. The designee’s testimony is credited over that of appellant because appellant’s testimony regarding her contacts with various DPR employees was unreliable and inconsistent. Appellant could not recall when she allegedly contacted DPR employees or the content of the contacts. In addition, appellant testified that the Manager had been her sole contact up to the time she left the message for the designee on July 20 or 21. This is inconsistent with her earlier testimony that she had contacted both the Manager and co-worker in May or June. Neither the Manager nor the co-worker were called to testify. Appellant’s argument that she did not obtain leave because she was unaware she needed additional medical substantiation and she was uninformed that she ran out of leave is without merit.
Appellant also argued she did not and does not now have the required medical substantiation of her need to be off work from June 8 through August 5 because she had no medical insurance and she was unable to find a doctor who would treat her. Appellant contended her inability to obtain adequate treatment was a result of misplaced reliance on her attorney and recording errors by Kaiser which delayed her ability to obtain treatment under Medicaid.
Appellant testified her attorney told her he/she would arrange for a treating physician. Appellant testified her attorney did refer her to both a chiropractor in Oceanside, California and an orthopedist. She testified she stopped going to the chiropractor in Oceanside because she lacked transportation. She stopped going to the orthopedist because he referred her to an orthopedic surgeon. The orthopedic surgeon refused to treat her because he would not collect his fees until her law suit was resolved.
Although appellant’s attorney allegedly told her he/she would locate still a third physician, appellant testified he/she failed to do so. Appellant testified the lawyer began refusing to return her calls and that she had not spoken to the attorney since June. Appellant testified she filed charges against the attorney with the State Bar Association in or about October.
Appellant also testified she applied for public assistance in June so she could get treatment through Medicaid. She further testified that because Kaiser records inaccurately indicated she was eligible for treatment after June 1, she was unable to get treatment through Medicaid until October when the error was corrected.
Appellant took no responsibility for her failure to obtain leave. She blamed her attorney, the State, and Kaiser for her inability to obtain timely medical verification of her inability to work. She blamed respondent for allegedly failing to notify her that she had needed additional medical verification.


Appellant testified that although she is willing to return to work, her chronic back pain does not enable her to do so.
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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 failed to prove she had a valid reason for being absent. Her self serving, uncorroborated statement that she was unable to work during the period June 8 through August 5 is an unreliable basis on which to conclude her back problems totally disabled her from coming to work.
Appellant failed to prove she had a valid reason for not obtaining leave. Appellant had the responsibility of keeping her employer informed of her medical condition and she had the responsibility for providing medical substantiation in order to obtain leave. She did not call her supervisor or the designee as instructed. She did not return the checklist sent to her with the May 10 options letter, and she did not provide medical substantiation of her need to be absent from June 8 through August 5. Her reliance on her attorney to find a doctor who would treat her on a “lien basis” does not mitigate her responsibility. In addition, it is unreasonable to believe without more evidence that a person who is allegedly unable to either stand or sit for any length of time and who is in chronic pain would not immediately take control of her medical care and seek treatment to mitigate her pain either by going to a publicly funded treatment facility or finding a cooperating physician.
Finally, appellant testified that although she was willing to return to work, she was physically unable to do so.
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that the appeal for reinstatement after automatic resignation effective August 13, 2004, is denied.
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1. All dates are 2004 unless otherwise indicated.
  Updated: 5/21/2012
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