Final Non-Precedential Decision Adopted: August 30, 2004

By: DPA Director Michael T. Navarro

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:30 p.m. on August 17, 2004, at Riverside, California.

Appellant was present and was represented by Carolyn Daniels, Labor Relations Representative, California State Employees Association (CSEA) and Eliza N. Castillo, R.N., District Unit 17 Representative for the Service Employees International Union (SEIU) at the Department of Mental Health’s Metropolitan State Hospital (DMH) in Norwalk, California.

Linda M. Nelson, Labor Relations Counsel, DPA, represented the DMH, 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 17, 2004, for being absent without approved leave on May 26, 27, 28, 2004 and June 1 and 2, 2004.1 CSEA filed a request (appeal) on appellant’s behalf for reinstatement after automatic resignation on June 21, 2004.2 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleged she had a valid reason for being absent, and that she should have been given leave because she followed the required procedure for obtaining leave. She also argued she was not absent five consecutive days.

Appellant has diabetes. She testified she did not report to work because her doctor excused her from work on May 26, 27, 28 and June 1 and 2. Appellant did not provide any specific information why her doctor allegedly took her off work for these days.

Appellant presented a medical form which she testified was completed at Kaiser Permanente. The form states: “Pts diabetic condition was diagnosed in 1998. Over the past three years she has been hospitalized 12 times due to her condition, most recently May and June of this year. Diagnosis – D.K.A Diabetic Keto Acedosis.” The name “Bothala Rama D. MD” is printed and written on the form. The document is dated “8-10-04.” This document does not say that appellant was unable to work on May 26, 27, 28 and June 1 and 2. Appellant admitted she was not hospitalized on these dates. No physician or other medical health provider was called to testify. Appellant failed to provide a valid reason for being absent during the relevant period.

Appellant admitted she knew she was required to contact respondent within one hour of her scheduled start time if she was going to be absent. Appellant began work at 8:00 a.m. She could either leave a message or talk to her supervisor. She was also required to bring in a doctor’s note to substantiate her illness if she was absent more than three days.

It was undisputed that appellant left a message with a secretary on May 25 saying she intended to return to work the following day, May 26. Appellant testified she called respondent a second time on May 25 after a doctor’s appointment on that date. She testified she left a message after work hours on extension 3182, the Metropolitan State Hospital’s General Service Department’s message line, that she was unable to work “the rest of the week.” Kathy Moran, appellant’s supervisor, testified she received only one message from appellant on May 25 and that message indicated appellant would be at work on May 26.

Moran testified she did not receive any telephone calls or messages from appellant on May 26, 27, 28 or June 1. She further testified that she checked with all secretaries each day to see if appellant had called. She also testified she reviewed all the messages left on extension 3182.

It was undisputed appellant left a message for respondent on extension 3182 on June 2 saying she would not be at work. However, the evidence shows the message was left at 10:23 p.m., well after the end of appellant’s work shift.

Appellant failed to present any corroborating evidence that she had a doctor’s appointment on May 25, that he took her off work at this time, and that she left a message for respondent on May 25 reporting future absences. Appellant’s failure to substantiate the substance of her alleged second call on May 25, appellant’s inconsistent testimony, and respondent’s evidence substantiating that appellant’s call on June 2 was after work hours, support a finding that appellant failed to prove she had a valid reason for not obtaining leave.

Appellant did not address this issue during the hearing.

 

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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 meet her burden of proof in these areas. Although it was undisputed she had diabetes, there was no reliable evidence that this was the cause of her absence on May 26, 27, 28 and June 1 and 2. Appellant failed to provide any evidence to corroborate her testimony that she visited the doctor on May 25, that he took her off work for the relevant period, or that she left a second message for respondent on May 25 reporting her absence. The evidence shows she did not call to report her absence on June 2 until after work hours at 10:23 p.m. Thus, appellant was absent without leave for five consecutive working days.

Although appellant argued she was not absent five consecutive days, Government Code section 19996.2 requires only that appellant be absent five working days. It was undisputed appellant was scheduled to work on May 26, 27, 28 and June 1 and 2 but not scheduled to work on May 29, 30, and 31, 2004.

Appellant did not address whether or not she was ready, able and willing to return to work.

 

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that the for reinstatement after automatic resignation effective June 17, 2004, is denied.

 

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1. Appellant was not scheduled to work on May 29, 30, and 31, 2004.

2. All dates are 2004 unless otherwise noted.