Final Non-Precedential Decision Adopted: March 3, 2006

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 November 21, 2005, at Sacramento, California. The record remained open until February 3, 2006 to permit filing of briefs.

Appellant, was present and was represented by Jay Dyer, Attorney, Service Employees International Union (SEIU).

Andrew Pollak, Staff Counsel, represented the Department of Water Resources (DWR), respondent.

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

On April 12, 2005, respondent notified appellant she was being automatically resigned effective April 19, 2005, for being absent without approved leave from April 4 through April 11, 2005. SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on April 19, 2005. The appeal complies with the procedural requirements of Government Code section 19996.2.

DPA received appellant’s appeal from the State Personnel Board on July 1, 2005.1 A hearing was originally scheduled for August 9. Appellant requested a continuance until November 21, 2005 to permit medical expert testimony. The continuance was granted and the hearing was held on November 21, 2005.

Appellant argued she should be reinstated because she had a valid medical reason for her absence. She argued she had a valid reason for not obtaining leave because she complied with the intent of the procedures she was instructed to follow to obtain leave; and, she is ready, able, and willing to return to work.

Appellant also argued she should have been granted leave under the California Family Rights Act (CFRA) and/or the Family Medical Leave Act (FMLA). Appellant was informed at hearing that, issues regarding respondent’s invocation of Government Code section 19996.2, the automatic resignation statute, was beyond DPA’s jurisdiction.

Appellant has suffered from depression since her teenage years. She began seeing a psychiatrist in 2002. The psychiatrist diagnosed appellant with major depression and prescribed medication. He continued to see appellant on a regularly scheduled basis until at least April 2005. Appellant also participated in other counseling from May 24, 2004 through February 2005.

Appellant saw the psychiatrist for a pre-scheduled appointment on April 13, 2005. Appellant testified she attempted to get an appointment to see the psychiatrist prior to April 13, but an earlier appointment was unavailable. On April 13, appellant told the psychiatrist she was “nervous about work,” she told him she was having family problems involving her husband and two children and she told him how these problems were affecting her at work. She also reported she had trouble sleeping. The psychiatrist diagnosed appellant as being unable to work because of major depression retroactively from April 7 until April 12. He authorized her return to work on April 18, 2005. The psychiatrist based his diagnosis on appellant’s reported symptoms, her past history, and his previous treatment of her condition.

Appellant had a valid reason for being absent April 4 through 11, 2005.

Appellant argued she should have been granted leave because she substantially complied with respondent’s requirements for obtaining leave. The requirements for obtaining leave were issued to appellant by her supervisor in a written memorandum dated May 24, 2004. The written memorandum stated in relevant part:

“If you are going to be absent, you must make every effort to verbally contact, in lieu of voicemail, myself [telephone number] or [a second level supervisor] [telephone number] between 9:00 a.m. and 9:30 a.m. on the day of the absence. If we are not available to answer your call, you are to leave a voicemail message with a phone number where you can be reached. This will facilitate in planning the work that will be needed to be completed by the section in your absence.

If you fail to comply with these requirements, your absence will not be approved and you will be considered absent without leave (AWOL) and your pay will be docked accordingly. (Emphasis added.)”

Appellant signed the memorandum. At hearing she acknowledged she knew she was to call between 9:00 a.m. and 9:30 a.m. She also acknowledged she was to try to call both her supervisor and a second level supervisor to speak with either one directly before leaving a message. She further acknowledged she knew if she left a voicemail message, she was to leave a telephone number where she could be reached.

Appellant had a history of failing to follow the May 24, 2004 procedures to obtain leave. She consistently called her supervisor prior to 9:00 a.m. and left voicemail messages regarding her absence. When asked why she did not call between 9:00 a.m. and 9:30 a.m., she testified something to the effect that she called, “when she got up.” Appellant did not consistently attempt to make personal contact with both the required supervisors before leaving a messages and she did not consistently leave a telephone number where she could be reached. She testified she did not leave a telephone number because she reasoned her supervisor had previously called her at home and he had her home telephone number.

Appellant failed to follow the procedures to obtain leave on June 1, 2, and 3, 2004. On June 15, 2004 appellant’s supervisor issued a Corrective Memorandum notifying appellant she was considered absent without leave and reiterating the need for appellant to follow the established procedures to obtain leave. Respondent also notified appellant it may take adverse action if there were future incidents.

Appellant failed to follow the May 24, 2004 procedures to obtain leave again on September 1, 2, and 7, 2004. On September 20, 2004, appellant’s supervisor issued a second Corrective Memorandum. He again reiterated the need for appellant to follow the established procedures to obtain leave and indicated respondent may take adverse action if there were future incidents.

Appellant failed to follow the May 24, 2004 procedures to obtain leave again on September 13, 14, and 15, 2004. Appellant’s supervisor issued a third Corrective Memorandum on September 30. While he accepted appellant’s doctor’s note to excuse her absence on these days, he reminded her that her requests for time off and notifications of absences must follow the procedures outlined in the May 24, 2004 Work Expectation Memorandum.

Appellant again failed to follow the May 24 procedures to obtain leave on April 4, 5, 6, 7 and 11, 2005. On each of these days she left voicemail messages for her supervisor prior to 9:00 a.m. Appellant could not recall whether or not she attempted to contact both supervisors before leaving the messages. She could not recall whether or not she actually left a telephone number where she could be reached.

After appellant saw the psychiatrist on April 13, 2005, she called her supervisor to advise him she had a note excusing her for April 4 through 11, 2005. He told her to just bring the note to the informal hearing (“Coleman Hearing”) which was scheduled for April 18, 2005. Appellant presented the psychiatrist’s note excusing her absence at the Coleman Hearing. However, respondent sustained its decision to automatically resign her.

Appellant testified she is currently ready, able, and willing to return to work. She is currently employed as a legal assistant.

 

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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. Therefore, DPA makes no decision regarding the DWR’s decision to invoke the automatic resignation statute and/or whether or not it may have violated the FMLA or CFRA.

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 proved she had a valid reason for being absent from work because she was suffering from depression which was a result of multiple family problems.

Appellant failed to prove she had a valid reason for not obtaining leave. Appellant was fully aware of the procedures she had to follow to obtain leave. She failed to follow the procedures even though she had been warned on multiple occasions that failure to comply may result in negative employment action. While there was evidence appellant may not have been able to report to work on the relevant days, there was no evidence that she could not comply with the requirement to call in between 9:00 a.m. and 9:30 a.m.; that she could not speak with a designated supervisor directly instead of automatically leaving a voicemail message; or, that she could not have left her telephone number. Appellant was not totally incapacitated and the symptoms she reported to her doctor during this time did not indicate she was withdrawn and unable to interact with others. Appellant managed to call her supervisor during work hours and speak with him directly on April 13, 2005 after she received her notice of automatic resignation even though she was still suffering from the same symptoms of depression that prevented her from working or allegedly following the May 24, 2004 leave procedures on April 4, 5, 6, 7 and 11, 2005.

Appellant proved she was ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Research Analyst I, Economics effective April 19, 2005, is denied.

 

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1. SEIU mistakenly filed the appeal with the State Personnel Board.