Final Non-Precedential Decision Adopted: September 8, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on June 14 and August 15, 2005, at Riverside, California.

Appellant was present and was represented by David De La Riva, Legal Counsel, California Union of Safety Employees (CAUSE).

Linda D. Buzzini, Labor Relations Counsel, DPA, represented the Department of Consumer Affairs (DCA), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

By letter dated February 17, 2005 respondent notified appellant he was being automatically resigned effective March 1, 2005, for being absent without approved leave from February 10, through February 16, 2005. CAUSE filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on March 1, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant claimed he had a valid reason for being absent because he was medically unable to work. He alleged he had a valid reason for not obtaining leave because respondent changed the requirements for obtaining leave without notifying him. He alleged he was ready, able, and willing to return to work.

Appellant admitted he did not work on February 10 through February 16. He alleged he was medically unable to work during this period because of shoulder problems that initially began with an off work injury in December 2001. He had surgery for the shoulder injury in February 2002. Appellant claimed he re-injured his shoulder at work in April 2002. Appellant testified that from October 2004 through the date of his automatic resignation, he continued to be periodically unable to work as a result of his shoulder condition. On or about November 19, 2004 appellant was placed on limited light duty based on medical restrictions provided by his doctor. He also testified he had the “flu” on some days immediately preceding February 10.

Appellant testified he should have been granted leave because he called in and notified respondent he was going to be absent. He also testified he was previously not required to call in each day he was absent nor was he required to provide a doctor’s note for his absences. He testified that he had previously been docked but not automatically resigned if he was absent and had no sick leave or vacation time.

Appellant claimed he called a co-worker who works in his supervisor’s office, on February 10 to report he was unable to work on both February 10 and February 11 because his “shoulder was bothering him.” He also testified he called the co-worker again on February 14 and February 15 to report his absence. Appellant testified that when he called on February 15, the co-worker told him his supervisor would not be in the office the rest of the week because he was at a meeting. Appellant testified he also called in on February 16 and talked to one of his co-workers to report his absence.

The second co-worker was not called to testify. The first co-worker could not recall talking to appellant on any day except the last day he was at work and went home early. According to appellant’s testimony he began missing work at least as early as February 10. Therefore, the only discussion the co-worker could recall preceded the AWOL period. Appellant’s father, who is a Program Representative III in BAR’s Oceanside Office, testified he heard appellant talking to the co-worker to report his absence on February 15.

In contrast to appellant’s testimony, the supervisor testified that during a meeting on January 29, 2004, appellant had been advised both orally and in writing that he was to call either his supervisor or his designee every morning. The designee was subsequently replaced by another person and assumed the “secondary” responsibility for receiving the morning telephone call from appellant during the time relevant to this appeal. Appellant was also instructed on January 29, 2004 to have a pager and cellar telephone and to be available for contact and communication during duty hours. The supervisor observed appellant being handed the January 29, 2004 meeting agenda that listed these requirements.

The supervisor testified he surveyed his staff to see if anyone had heard from appellant on February 10, 11, 14, 15 and 16. No one including the co-worker reported hearing from appellant on those days. The designee also testified he personally asked personnel in the office, including the co-worker, if anyone had heard from appellant on any day from February 10 through February 16. No one reported to the designee they had heard from appellant.

The supervisor also presented documentation and testimony showing he called appellant at his personal cell phone number three times on February 10, three times on February 11, four times on February 14, three times on February 15 and twice on February 16. The supervisor could not recall the telephone number he called other than it had a 760 area code. The supervisor called appellant on his personal cell phone because the State issued cell phone was being replaced and was not operating. This is consistent with the supervisor’s past practice during which he had been successful in reaching appellant. Appellant objected to revealing his cell phone number for privacy reasons. Appellant was advised he would not be required to divulge the number, but respondent would be allowed to provide the number and his refusal may affect the outcome of the case. Appellant chose to not provide his cell phone number. The supervisor testified he left messages for appellant to call him or the office but appellant never responded.

At some point immediately prior to sending the letter notifying appellant he was being automatically resigned the supervisor of appellant’s father in the Oceanside Office met with his father to let him know his son, the appellant, was being automatically resigned. Based on appellant’s father’s responses to the information at the meeting, his supervisor believed he did not know his son had not been at work. Appellant’s father did not indicate he heard his son call in to report his absence or that he knew why his son had been absent.

Respondent notified appellant by letter dated February 17 he was being automatically resigned. Appellant received the notice on February 18 and contacted DCA’s Return to Work Coordinator on February 22. He subsequently also arranged for the informal hearing (“Coleman Hearing”) regarding the automatic resignation. The informal hearing lasted about an hour. The hearing officer was from another Bureau under DCA’s administrative umbrella. The hearing officer upheld the automatic resignation because appellant presented contradicting information regarding if he called BAR to report his absence, when and who he called to report his absences, or if he talked to someone or if he tried to leave messages.

Appellant testified he 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 he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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. Therefore, DPA makes no finding on appellant’s allegation that appellant was automatically resigned as retaliation for his filing of a workers’ compensation claim. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Appellant failed to prove he had a valid reason for being absent, a valid reason for not obtaining leave, or that he is ready, able, and willing to return to work.

Appellant did not present any medical documentation to respondent or at hearing that substantiated his need to be absent from February 10 through February 16. The most recent medical documentation prior to February 10 indicates appellant was able to work with restrictions. There was no medical evidence appellant visited his doctor during the time he is charged with being absent without leave (AWOL) or that appellant’s shoulder condition changed necessitating his absence from work. No medical provider was called to testify.

Appellant’s self-serving testimony without additional medical substantiation is an inadequate basis on which to find appellant had a valid reason to be absent from February 10 through February 16.

Appellant also failed to meet his burden of proof regarding why he did not obtain leave. He was clearly instructed January 2004 to call in every morning. No one reported or testified they received a call from appellant on any day between February 10 and February 16. Appellant and his father were the only two witnesses who testified that appellant called at any time during the relevant period. Both of these witnesses, because of their personal involvement and familial ties, are less credible than the co-worker who could only affirmatively remember talking to appellant before the AWOL period and the designee who testified he surveyed the office staff before February 17, and was unable to find even one employee, including the co-worker, who received calls from appellant from February 10 through February 16. The supervisor’s testimony regarding the fourteen calls he made to appellant and his message to appellant to call him or the office is also credible. Appellant simply did not choose to put forth the effort to call appellant as he was instructed.

To the extent he argued he called respondent, but was unable to leave a message, or otherwise contact someone, this argument is also without merit. He had no problem contacting someone at BAR after he received his automatic resignation either to attempt to solidify his defense or question his automatic resignation. Appellant failed to prove he had a valid reason for not obtaining leave.

Appellant also failed to prove he was ready, able, or willing to return to work. He testified he has been unable to work on multiple occasions since September 2004 because of his shoulder condition. He testified his problem was reoccurring because he was forced to work out of his car which restricted his movement. His father testified he observed his son to be in constant pain. There was no medical information that released appellant to return to work or that adjusted his restrictions. Appellant’s history of inability to work because of his injuries, his self-admission that working out of his car aggravates his shoulder condition, and the lack of medical information confirming appellant’s ability to work prevent appellant from proving he was able to return to work.

 

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that the appeal for reinstatement after automatic resignation effective March 1, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.