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DPA Case Number 04-R-0051 - Reinstatement After Automatic Resignation

DPA Case Number 04-R-0051 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 12, 2004
By: David A. Gilb, Chief 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 28, 2004, at Sacramento, California.
Appellant was present and represented Marcia Mooney, Senior Labor Relations Representative, California State Employees Association (CSEA).
James E. Toomey, Jr., Attorney, represented the Department of Industrial Relations, State Compensation Insurance Fund (SCIF), 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 7, 2004, for being absent without approved leave from April 1 through April 21, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on May 6, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant alleged she had a valid reason for being absent because she was ill; she had a valid reason for not obtaining leave because she “did all she could” to obtain leave; and, she is ready, able, and willing to return to work.


It was undisputed appellant last worked on December 11, 2003. On that day, appellant left work early because of a crisis with one of her one of daughters who locked herself in a bedroom and threatened to commit suicide. Appellant testified she was unable to return to work after this incident. She contacted the Employee Assistance Program (EAP) who referred her to a Licensed Clinical Social Worker (LCSW) for treatment. Appellant was granted leave under the Family Medical Leave Act (FMLA) from December 12, 2003 through March 31.
Appellant testified she could not come to work after April 1 because a second daughter was ill. Appellant testified the daughter had an emergency on April 1 and had to be taken to the hospital. The second daughter was diagnosed with nerve damage because of drug use and was held at the hospital for 72 hours. Appellant testified she remained at the hospital with her daughter for the 72 hours. She further testified that her daughter was again seen in the emergency room on April 7. At that point, the daughter was put into some type of medical program for ten days.
There was no evidence that either of appellant’s daughters constantly required her care or assistance for the period April 1 through April 21.
Appellant presented handwritten correspondence from her LCSW dated April 13 which stated he had been seeing her for two to three months and that appellant felt “somewhat traumatized in the very recent past.”
Appellant also submitted a First Claim for Nonindustrial Disability Insurance Form (NDI Form). She testified her LCSW completed this form indicating she could return to work on April 1. She also testified that she actively sought a medical doctor to sign this form because the NDI would not issue benefits based on validation of her inability to work from an LCSW. She testified she finally found a Doctor of Osteopathy (DO) who would sign the form on or about April 20. She further testified that when he signed the form, he extended the date she was anticipated to be released to return to work to May 30. Although appellant contended the LCSW was willing to draft a note indicating she was unable to work after April 1, appellant did not present such evidence and neither the LCSW nor any other medical doctor or health care professional was called to testify.


Appellant argued she did everything she could to obtain leave. She contended she should have been given “another chance” to provide medical substantiation of her need to be absent and that her ability to obtain medical substantiation for her absence was hindered by receipt and completion of the NDI application form.
Appellant was on attendance restriction on December 11, 2003. When she left work her supervisor instructed her to report to him on a daily basis. When she failed to do so, he sent her a letter on December 22, 2003. He ordered her to contact him by 8:45 a.m. on a daily basis if she was going to be absent. He also instructed her to submit written substantiation of her inability to work. He reminded her that failure to follow these directions could result in termination. On January 6 and 7, he communicated with appellant by telephone and by letter. On January 6, he reminded her that leaving voicemail messages was unacceptable and that he wanted to speak to her directly. In a letter on January 7, he ordered her to communicate directly with him regarding her continued absence from work. On January 20, respondent granted appellant leave under the FMLA from December 12, 2003 through March 24. This was subsequently extended through March 31.
Appellant was expected back at work on April 1. Appellant left her supervisor voicemail messages on two occasions during the last week of March. The dates of these messages are disputed. Nonetheless, both messages indicated appellant had not been released to return to work and that appellant had a doctor’s appointment on April 1 which would determine when and under what restriction she could return to work. In both messages, appellant asked her supervisor to call her. Appellant left her cell phone number in one of the messages and she left a different number in a second message. The supervisor attempted to call appellant at these numbers two times prior to April 5. He could not contact her at either number. He also testified he was unable to leave a message at these numbers. Appellant testified her cell phone had been deactivated and the second number at which the supervisor was trying to call her was incorrect. Appellant did not contact her supervisor on April 1 or 2.
The supervisor sent appellant a letter on April 5.2 He reiterated he had tried unsuccessfully to contact her, that he needed medical information to substantiate her absence from work after April 1 and that she needed to contact him as soon as possible to discuss the matter. He told her she was expected back at work by April 9 at 8:00 a.m. or she would risk being separated based on absence without leave.
According to appellant, she spoke with her supervisor late in the afternoon on April 5. She testified she called to talk to him about the April 5 letter. She testified she told him she would not be back at work for another two or three months because of the situation involving her second daughter. She also testified she told him she needed to have the NDI form signed by a doctor and that she would provide it as soon as that happened. The supervisor testified he did not receive this call or any message from appellant on April 5.
Appellant did not speak to her supervisor to report her absences on April 6, 7, 8, or 9. According to appellant’s telephone notes she left an angry voicemail message for her supervisor regarding her return to work on April 6. According to him, appellant left him a voicemail message on April 9 expressing her displeasure with the “nature” of the April 5 letter and she advised him she was “going to contact the Union.”
Appellant did not speak to her supervisor to report her absences on April 12 or 13. She left a voicemail message for him again on April 12 saying she was going to the doctor and would get written substantiation for her absence. The supervisor continued to attempt to contact appellant by telephone at the numbers she provided with no success. On or about April 13, he obtained another telephone number for appellant through respondent’s personnel system. He called the number twice that day. The first time he phoned, he reached a person he believed to be appellant’s mother, and he left a message asking that appellant contact him. The second time there was no answer. Appellant did not return his call that day.
On April 14 appellant called her supervisor, had him paged, and spoke with him personally. She told him she was at a mental health facility with her daughter but that she was faxing him medical substantiation for her absence. The supervisor wanted to discuss why appellant was not at work but he did not believe it was not the appropriate time to do so. He asked appellant what time she would be at home and told her he would call her then. The supervisor testified he called appellant after she was supposed to be at home and he got no answer. Appellant testified she was at home, but he never called. Appellant never attempted to call her supervisor on April 14 after she returned home.
Appellant faxed her supervisor an April 13 document from her LCSW on April 14 shortly after she spoke with him while she was at the mental health facility. The document did not state appellant was unable to work for any period.
On April 15, the supervisor sent appellant a letter indicating the note she faxed was insufficient to substantiate her absences. He also notified her that because she had not been contacting him directly as she was instructed he had been unable to discuss what information he needed to approve her continuing absences. He notified her he was referring the matter to the Human Resources Department to process the automatic resignation.
Appellant testified she called her supervisor to discuss the April 15 letter on April 15. She testified he told her the letter was fine but that the “Home Office” didn’t feel it was adequate. Appellant said he did not offer her the option of getting the letter re-written. The supervisor testified that he did not hear from appellant after April 14. Appellant did not obtain a letter from her LCSW substantiating her absence past April 1.
Appellant’s LCSW signed the NDI form on February 13 anticipating appellant’s release to work on April 1. On April 20, the DO signed the NDI form anticipating her release to return to work for NDI purposes on May 30. Appellant testified she faxed this document to SCIF’s home office immediately after the DO signed this document. The document indicates it was faxed on April 21.
Respondent notified appellant by letter on April 21 that she was being automatically resigned.


Appellant testified she was ready, able, and willing 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 failed to prove by a preponderance of the evidence she had a valid reason for being absent from April 1 through April 21. Her treating LCSW was not called to testify. The only medical information she provided from this treating professional did not indicate she was unable to work. The NDI application she presented was completed for NDI application purposes by an osteopathic physician3 who had treated appellant in the past and was the only physician appellant could find to sign the NDI application. There was no evidence that he examined or treated her from April 1 through April 21 for the mental condition she alleged kept her from reporting to work. There was no evidence appellant was required to provide care for her daughters during the relevant time period.
Appellant also failed to prove she had a valid reason for not obtaining leave. She was well aware that she was required to call her supervisor daily prior to 8:45 a.m. when she was unable to come to work April 1 through April 21. Although she was told voicemail messages were unacceptable, she continued to leave these messages. Her argument that she was forced to leave such messages because her supervisor was always unavailable is not supported by her own testimony. If her testimony is credited, she was able to speak with her supervisor the very same day she received the April 5 and April 15 letters. When she chose to have him paged on April 14, she was also able to speak with him directly to let him know she was faxing him medical information. Appellant’s argument that she did not contact him directly as she was instructed because he was consistently unavailable is without merit.
Appellant’s argument that she had a valid reason for not obtaining leave because her supervisor never returned her calls is also without merit. The evidence shows the supervisor did attempt to call appellant on several occasions. When he was unable to reach her, he wrote her letters. Even if the supervisor had not attempted to call appellant, this would not excuse appellant’s obligation and responsibility to keep her employer informed of her work status as she had been instructed in December 2003; in January 2004; and in the April 5 letter. There is no statute, regulation, or case law that shifts the burden for attendance reporting from the employee to the employer. Appellant failed to contact her supervisor as she was instructed and therefore failed to obtain leave for April 1 through April 21.
Appellant’s argument that she was precluded from providing the required medical substantiation because she did not receive NDI forms and she could not find an NDI- acceptable physician to complete the forms is also without merit. Appellant is charged with being absent without leave for the period of April 1 through April 21. The NDI forms were signed by her treating LCSW on February 3. Appellant did not send these to respondent’s home office until April 20. There was no evidence of any discussion or past practice by respondent which would lead appellant to believe that these forms would or would not be adequate to substantiate her absence. There was nothing that precluded appellant from obtaining and submitting substantiation from her LCSW or other medical professional by April 9. She provided no explanation for her consistent failure to produce reliable medical substantiation of her inability to work to respondent as requested.
Therefore, appellant failed to prove by a preponderance of the evidence that she had a valid reason for being absent or a valid reason for not obtaining leave. Appellant’s assertion that she was ready, able, and willing to return to work was unrefuted by any reliable evidence.
* * * * *


that the appeal for reinstatement after automatic resignation effective May 7, 2004, is denied.
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1. All dates are 2004 unless otherwise indicated.
2. All correspondence the supervisor sent to appellant was sent via Corporate Express Messenger Service.
3. Doctors of Osteopathy diagnose and treat disorders of the musculoskeletal system through palpitation and appropriately applied manipulative procedures. See Holt v. College of Osteopathic Physicians and Surgeons, 61 Cal.2d 750.
  Updated: 5/29/2012
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