Final Non-Precedential Decision Adopted: February 23, 2006

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on February 22, 2006, at Sacramento, California.

Appellant was present and represented himself.

Caroline G. Skol, Attorney at Law, represented the State Compensation Insurance Fund (SCIF), respondent.

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

Respondent automatically resigned appellant effective December 30, 2005, for being absent without approved leave from November 30, 2005 through December 15, 2005.1 The Service Employees International Union (SEIU) filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on January 5, 2006. The appeal complies with the procedural requirements of Government Code section 19996.2 and Title 2, California Code of Regulations section 599.904.

Appellant claimed he should be reinstated because he was sorry for his prior conduct and if he attends an alcohol abuse treatment program he is capable of being a productive State employee.

Appellant was absent on December 1, because he had plumbing problems at his home. He was absent from December 2 through December 15 because he was abusing alcohol and he was unable to function. Appellant was not in a treatment program and did not go to a doctor for medical assistance with his alcoholism during this period.

Appellant knew he was to call the data center to report his absence each day. He also knew he was required to provide medical verification of his inability to work for each day he was absent.

Appellant did call in to report his absence each day. Each day he called, he simply reported he was “sick”. Appellant did not provide respondent with medical verification of his need to be absent. Although he did go to a doctor on December 7 and was medically excused from work for headaches on December 7 and 8, appellant did not provide this medical verification to respondent. Appellant did not provide a physician’s verification of his need to be absent for any day from December 2 through December 15 either to his employer or at hearing. Appellant argued his inability to provide the required physician’s verification was caused by an inability to function that was a result of his alcohol abuse.

At the time of hearing, appellant testified he had been sober for one week. He was not enrolled in a treatment program. However, appellant was confident that if he completes a treatment program, he would be able to successfully return to his job.

Appellant’s confidence is based on his prior completion of an alcohol rehabilitation program in 2003. Although his work attendance may have initially improved, appellant gradually relapsed into a pattern of absenteeism which resulted in a series of work counselings, adjustments in his work hours, referral to the Employee Assistance Program and two Adverse Actions based primarily on his inexcusable absence without leave and failure to comply with the required absence reporting procedures.

Appellant enrolled in an alcohol rehabilitation program again in or about June 2005. While he was in this program in 2005, his attendance again improved. However, appellant did not complete the program and his work attendance once again became a problem. He developed a pattern of not coming to work for approximately two weeks after each payday. This continued for at least three months immediately prior to the automatic resignation.

 

* * * * *

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. Inability to work because of incapacity due to alcohol over-indulgence does not validate an absence.

Appellant failed to prove he had a valid reason for not obtaining leave. He did not go to a physician to obtain treatment for his alcoholism. He had been warned on multiple occasions that his attendance was a problem, that he could be automatically resigned for unexcused absences, and that he needed to call his employer and provide medical verification for the dates he was absent. He did not provide medical verification of his need to be absent either to his employer or at hearing and he did nothing to obtain medical information verifying his absence.

Appellant also failed to prove he is ready, able, and willing to return to work. Appellant has a history of alcoholism and varying degrees of success with alcohol rehabilitation programs. He was not enrolled in a program at the time of hearing. There was no reliable evidence appellant would enroll in such a program in the near future or that he would in fact successfully complete the program.

 

* * * * *

that the appeal for reinstatement after automatic resignation effective close of business December 30, 2005, is denied.

 

* * * * *

1. All dates are 2005 unless otherwise indicated.