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DPA Case Number 05-C-0036 - Reinstatement After Automatic Resignation

DPA Case Number 05-C-0036 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: August 26, 2005
By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on August 16, 2005, at Riverside, California.
Appellant was present and was represented by Henry Walton, Labor Relations Representative, Service Employees International Union (SEIU).
Steve McGee, Staff Counsel, represented the Department of General Services (DGS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

On January 31, 2005, respondent notified appellant she was being automatically resigned effective February 22, 2005, for being absent without approved leave from January 24 through January 31, 2005. SEIU filed a request (appeal) for reinstatement after automatic resignation on February 18, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant alleged she had a valid reason for being absent because she was ill; she had a valid reason for not obtaining leave because although she reported her absence and provided a doctor’s note supporting her need to be absent, her supervisor unlawfully denied her leave; and, she is ready, able, and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant testified she was absent because she was medically unable to work and her doctor advised her not to work from January 22 through at least January 31, the dates she was charged with being absent without leave (AWOL).
Appellant presented a medical document she testified she obtained from the Psychiatrist on January 25 which advises her to be off work from January 25 through February 7. The dates as well as some diagnostic information on the document are unreadable.
No medical provider was called to clarify appellant’s need to be absent or to corroborate appellant’s testimony regarding the dates on the document. Appellant’s testimony without further clarification is an inadequate basis on which to find that appellant had a valid reason for being absent.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant argued she should have been given leave because she faxed medical information from the psychiatrist to DGS on February 1 and because she called in on January 24, 25 and 26 to report her absence. Appellant claimed she reported her absence on January 24 by leaving a message for her supervisor and by calling someone in DGS’s Sacramento Office. She claimed she reported her absence on January 25 by calling “John in Parking” in Sacramento. She claimed she reported her absence on January 26 by again calling someone in Sacramento. Appellant also argued her supervisor changed the policy regarding how to report an absence so often that she was unclear who she was supposed to call.
At least as early as August 10, 2001, DGS’ Office of Fleet Administration established a policy requiring employees who were absent because of unexpected illness or who were going to be late to call and speak to their immediate supervisor or leave a detailed message with a return telephone number where they could be reached. The supervisor testified without contradiction that appellant received a copy of this policy. Between July 7, 2003 and August 30, 2004, the supervisor advised appellant on at least 13 different occasions that she was being considered absent without leave because she failed to call him or leave a message on his answering machine when she was going to be either absent or late. He testified without contradiction that appellant had a pattern of refusing to call him directly or leaving him a message on his answering machine. He also credibly testified that appellant did not call him directly or leave any messages for him on any day between January 24 and January 31.
Respondent’s policy requiring appellant to call or leave her supervisor a message when she was going to be unexpectedly absent had not changed in approximately four years. Appellant knew she was expected to call her immediate supervisor and either speak to him or leave him a message. She failed to follow this procedure. Appellant failed to prove she had a valid reason for not obtaining leave.

V - READY, ABLE AND WILLING

Appellant testified she was ready, able, and willing to return to work only if she were returned to a position under a new supervisor.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

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. The medical documentation she provided was partially illegible and was not corroborated by any medical testimony. Appellant’s self-serving testimony without additional substantiation is not an adequate basis on which to find appellant had a valid reason for being absent.
Appellant failed to prove she had a valid reason for not obtaining leave. Appellant had received written instructed multiple times regarding the process she had to follow to report her absences. She simply chose not to follow the required procedure. In addition, she did not provide any medical documentation of her need to be absent until after she had been automatically resigned.
Appellant also failed to prove she was willing to return to work. She conditioned her return on being placed in a position with a new supervisor. DPA does not have the jurisdiction nor the inclination to order respondent to place appellant in a position with a new supervisor.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective February 22, 2005, is denied.
 
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FOOTNOTES

1. All dates are 2005 unless otherwise indicated.
  Updated: 5/9/2012
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