DPA Case Number 05-K-0068 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: August 26, 2005

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 August 17, 2005, at Riverside, California.

Appellant was present and was represented by Henry Walton, Labor Relations Representative, Service Employees International Union (SEIU).

Leda Medearis, Principal, Jack B. Clarke High School, Southern Youth Reception Center and Correctional Facility, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.

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

Respondent notified appellant on May 27, 2005, he was being automatically resigned effective May 31, 2005, for being absent without approved leave from May 23 through May 27, 2005. Appellant filed a request (appeal) for reinstatement after automatic resignation on June 16, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleged he had a valid reason for being absent because he was medically unable to work. He alleged he should have been granted leave because he notified respondent he was medically unable to work. He also alleged he is ready, able, and willing to return to work.

Appellant testified he was absent from work from May 23 through May 27 because he was recovering from an injury to his left hand and his doctor precluded him from working. In support of his testimony he presented a medical document from Kaiser Permanente which indicates he was seen on May 18 and that he was completely unable to work for a period of twelve (12) calendar days. The document indicates he was able to return to work without restrictions on May 30.

The document provided indicates that the date the document was signed had been altered to reflect that it was signed on May 18. Appellant testified this alteration was done by the clinician who authored the document. No medical provider was called to testify.

Appellant alleges he should have been granted leave because he called respondent on May 16 and told his supervisor’s secretary and the facility’s Return-to-Work Coordinator, that his doctor took him off work for the period of May 23 through May 27. He testified he also called his supervisor several times but she did not return his call. He further testified he faxed the supervisor’s secretary a copy of the Kaiser Permanente documentation that he claimed substantiated his need to be absent. He inconsistently testified that he faxed this document on either May 16 or May 18. He finally testified he was unclear about what day he might have faxed the document. The evidence shows appellant faxed the document indicating he was unable to work from May 23 through May 27 on June 2 to a number that his supervisor could not automatically recognize. By June 2, appellant had already been notified he was being automatically resigned.

The supervisor testified without contradiction that it was respondent’s policy that unless a physician’s note is submitted, an employee who is absent because of illness is expected to call the supervisor’s secretary every day he/she is absent. If an employee has been absent for a lengthy period, he/she is expected to report to the Return to Work Office with a doctor’s note clearing them for return to duty on the day the employee returns to work. The supervisor testified that any calls made to her secretary regarding absences were memorialized in either an e-mail or written message and forwarded to her.

The supervisor further testified that her secretary received a message from appellant on May 16 saying he was not feeling well and was not coming to work. Appellant further indicated he was going to fax a document from the doctor. Respondent never received a fax from appellant on this day or any other day prior to his automatic resignation. Appellant also called Return-to-Work Coordinator either on this day or on May 18 and told her he would fax a document from the doctor. The Return-to-Work Coordinator asked appellant to bring in the doctor’s note because she was leaving at 12:30 p.m. Appellant never faxed or brought the document to the Return-to-Work Coordinator prior to his automatic resignation.

Before issuing the notice of automatic resignation on May 27 the supervisor checked with her secretary, the Return-to-Work Coordinator, and other office personnel to see if anyone had received a call or medical information from appellant regarding his absences. No one reported either receiving a call from appellant or medical documentation substantiating appellant’s need to be absent during the period of May 23 through May 27.

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. 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 and a valid reason for not obtaining leave. Although appellant claimed he was medically unable to return to work during the relevant period, no medical provider was called to medically authenticate the obviously altered document appellant presented to substantiate his testimony. The fact he did not present this document to respondent until June 2, after he was automatically resigned, and appellant’s inconsistent testimony regarding when he contacted various employees, makes appellant’s testimony unreliable and an inadequate basis on which to find that he either had a valid reason for being absent or that he had a valid reason for not obtaining leave. Appellant knew he needed to provide a medical note substantiating his absence. He represented to respondent that he would supply such documentation, but never did so until he was automatically resigned. He also failed to prove he complied with the required procedure of calling his supervisor each day he was absent.

Based on the above, it is unnecessary to determine if appellant is ready, able and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective May 31, 2005, is denied.

 

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FOOTNOTES

1. All dates are 2005 unless otherwise indicated.