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DPA Case Number 06-C-0079 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: November 7, 2006
By: David A. Gilb, Director



A hearing was held on October 31, 2006 in Sacramento, California.
Appellant was present and represented by Nydia Loya, Staff Attorney, Service Employees International Union (SEIU). Elizabeth Ohlendorf, Manager, Office of Personnel Services, Employee Discipline Unit, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.
On August 3, 2006, respondent notified appellant by mail that she was being automatically resigned for being absent without leave (AWOL) from June 26 through June 30, 2006. SEIU appealed the automatic resignation on appellant’s behalf on August 14, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2. The Department of Personnel Administration (DPA) has jurisdiction over this matter.


Appellant argued she had a valid reason for being absent because she was ill. She argued she had a valid reason for not providing medical information because she thought her supervisor had approved her leave.
Respondent contended it did not know whether or not appellant could work from June 26 through June 30 because appellant did not present medical evidence that she either could not work or that she could work with restrictions. It further contended appellant failed to obtain leave because she did not present the required medical documentation.
The only issues to be decided in this case are:
1. Did appellant have a valid reason for being absent from June 26 through June 30?
2. Did appellant have a valid reason for not obtaining leave for June 26 through June 30?
3. Did appellant prove she is ready, able, and willing to return to work in the position she held at the time of her automatic resignation?


Appellant was a Staff Services Analyst at the time of her automatic resignation. She began her career with the State of California and the California Youth Authority at the Preston Youth Correctional Facility (PYCF) on August 22, 1994.2 Her duties included working with PYCF’s budget and acting as a budget liaison between the institution and CDCR’s headquarters.
Appellant last worked on or about April 12. She either faxed or delivered three medical notes to respondent verifying her need to be absent through June 23.
Respondent’s absence policy required an employee who is absent more than three days because of illness to submit medical verification. It is respondent’s past practice to contact an appellant on or before the medical verification expires to notify them a new medical slip is required.
Appellant’s supervisor called her on June 23. The appellant told her supervisor the doctor’s appointment scheduled that day had been canceled, but it would be rescheduled the following week. At some point in the conversation, the supervisor said “Okay.” The appellant interpreted this as meaning her leave was approved.
Appellant left a message for her supervisor on Sunday evening, July 2 stating she was unable to see the doctor the previous week.
Appellant’s supervisor called appellant again on July 3. The supervisor left a message telling appellant she needed either a release to return to work or a medical note excusing her from work. Appellant called her supervisor later that day and said she had not yet gotten a doctor’s appointment, but she anticipated being unable to return to full duty until July 30. At some point, the supervisor again said, “Okay,” and the appellant interpreted this as the supervisor approving her leave.
During the July 3 telephone conversation, the supervisor and the appellant discussed the possibility of appellant returning to work on light duty. The supervisor told the appellant to take the Return to Work (RTW) Coordinator’s May 9 letter describing the requirements for light duty to her doctor to get the required information. The supervisor also told the appellant she was going to be out of the office for two weeks. The supervisor gave appellant the numbers for the fax machine in her office and in the Health and Safety Office so that she could provide the required medical information.
Appellant did not provide her supervisor with medical information verifying her absence after June 23.
Appellant began contacting PYCF’s RTW Coordinator in or about April to discuss light duty. The RTW Coordinator informed appellant that to qualify for light duty she needed to submit a doctor’s note outlining her restrictions and medical verification she would be able to return to full duty in 60 days. The RTW Coordinator outlined the requirements for light duty in a May 9 memoranda to appellant.
Appellant and the RTW Coordinator talked again on or about June 23 and July 7. Both times the RTW Coordinator reiterated the appellant needed to submit updated medical information to support a light duty assignment. At one point, the RTW Coordinator told the appellant she could submit her medical information by placing it outside her office in a locked box provided to receive such confidential information.
Appellant did not provide the RTW Coordinator with medical information either outlining her restrictions or verifying her absence after June 23.
Appellant received documents from respondent’s Personnel Office regarding the Family Medical Leave Act (FMLA) in April or May. These documents included forms that needed to be completed by appellant’s physician to qualify her for such leave. She did not return the completed forms until after she was notified she was absent without leave.
Respondent mailed appellant a letter on July 28 warning her she was absent without leave from June 24 through July 28 and that she would be automatically resigned if she did obtain approval for her absence or return to work by August 3. The letter was sent both certified mail and regular mail. It was sent to her address of record. Appellant did not receive the July 28 certified notice until August 10.
Respondent mailed appellant notice of her automatic resignation on August 3. The notice was mailed to appellant’s address of record. She received the notice on August 9.
After appellant received the notice of automatic resignation, appellant provided respondent with some medical information regarding her absence after June 23 after she received her notice of automatic resignation on August 9.
Respondent was aware that appellant owned a cattle business. During her absence from work with respondent, appellant worked in that business. She made telephone calls, checked on the cattle, went to cattle sales, handled correspondence, and watched the cattle market. At times, she drove her truck, walked the cattle grounds, and worked more than an eight hour day.


1. The appellant bears the burden of proof and the standard of proof is the preponderance of the evidence. (Aguila v. Atlantic Richfield (2001) 25 Cal. 4th 826.)
2. Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement:
19996.2. (a) Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.
A permanent or probationary employee may within 90 days of the effective date of such separation, file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing. Reinstatement may be granted only if the employee makes a satisfactory explanation to the department 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.


Appellant failed to meet her burden of proof. She failed to prove she had a valid reason for being absent. She did not present at hearing any medical reason for her leave or any medical documentation supporting her leave. No physician or other medical personnel were called to testify.
Appellant failed to prove she had a valid reason for not obtaining leave. She was aware of many alternate confidential means of getting medical information to respondent. She had successfully used these alternate methods previously.
Appellant was told to provide additional medical information on July 3. She did not provide the information until after she received notice that she was being automatically resigned. She did not speak with her supervisor between July 4 and August 3. Her testimony that she believed her leave was approved based on a generalized “okay” uttered by her supervisor during a conversation involving several aspects of her absence is unreasonable. This general unclarified utterance did not waive the previous requirement that appellant provide medical information when asked to do so. She previously provided such information in a timely manner. Appellant knew the requirement for obtaining leave or restricted duty. She did not provide the required information to obtain leave.
Appellant failed to prove she was ready, able, and willing to return to work. She did not provide any testimony or medical information regarding this issue.

VI - Conclusion

Appellant failed to prove she had a valid reason for being absent, a valid reason for not obtaining leave, and that she was ready, able and willing to return to work in the position she held at the time of her automatic resignation.
Appellant’s appeal of automatic resignation effective June 23, 2005, is denied.
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1. All dates are 2006 unless otherwise indicated.
2. The California Youth Authority was consolidated with the California Department of Corrections and became part of CDCR on or about July 2005.
  Updated: 5/21/2012
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