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DPA Case Number 98-A-0058 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 10, 1998
By: K. William Curtis, DPA Chief Counsel


This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 11:00 a.m. on May 19, 1998, at Redding, California.
Appellant was present and was represented by Tamra L. Page, Attorney.
Jon Humphreys, Personnel Analyst, represented the Department of Transportation (CalTrans), respondent.
Evidence having been received and duly considered, the Hearing Officer makes the following findings of fact and Proposed Decision.


Appellant automatically resigned effective February 16, 1998, and filed a request for reinstatement after automatic resignation on March 11, 1998. The request for reinstatement complies with Government Code section 19996.2.


Respondent notified appellant in writing on or about February 26, 1998, that effective March 6, 1998, he would be considered to have automatically (AWOL) resigned February 16, 1998, based upon his absence without approved leave from February 17 through February 26, 1998. Thereafter, appellant filed his request for reinstatement with DPA claiming he had a valid reason for being absent and for not obtaining leave.


In 1997 appellant applied for Workers’ Compensation benefit through respondent’s insurer, the State Compensation Insurance Fund (SCIF). On October 21, 1997, appellant’s physician a Board Certified Allergist, examined and evaluated him for Workers’ Compensation benefits. On January 20, 1998, he reevaluated appellant.
On February 2, 1998, the physician issued a letter setting forth his conclusions regarding appellant’s complaints which he determined “evolved around symptomatology created by the building in which he works.” The physician concluded that a vocational rehabilitation plan which included removing appellant from the building where he worked should improve (relieve) allergic symptoms of distress about which appellant was complaining. He concluded that allergen testing demonstrated “significant allergy to weeds, house dust mites, animal dander and molds and that mold exposure in the workplace could have been a contributing or causative agent.” He also approved respondent’s plan to return appellant to work outside the main office building in Redding with the sole restriction that appellant not enter the building which was his prior work site.
Relying upon the physician’s letter, respondent faxed a memorandum to appellant on February 13, 1998, directing him to return to work February 17, 1998, at a new work location in a trailer adjacent to the prior work site. Specifically, he was directed to report to the Construction Division at the Redding Office of CalTrans. He also was directed to remain out of the main building, which led to the problems.
Appellant did not return to work on February 17, 1998, as directed. Instead he sent a memorandum to the Personnel Manager for CalTrans’ Workers’ Compensation Unit in Sacramento. In it he demanded the following: 1) that he be returned to his old location but his desk be moved; or 2) that he be restored to a position in another district; or 3) that he be provided a medical evaluation as to why he can’t just move his desk or relocate to another district. Appellant also called the Construction Manager of the North Region Construction, (who authored the memorandum) on or about February 18 or 19, 1998, and left a voice-mail message to the effect that he was unable to accept the condition placed upon his return and wanted to let the Construction Manager know. At the hearing, appellant complained that the whole problem could have been settled by just moving his desk.


Appellant was on approved leave pending the evaluation and determination by his physician as to whether he could return to an alternate position at CalTrans. On February 2, 1998, the Vocational Rehabilitation Counselor handling appellant’s claim, faxed a letter to the physician advising him she had been authorized by SCIF to vocationally assist appellant by placing him in an alternate job with his prior employer (CalTrans), one that would “allow him to continue his usual and customary job but with considerable time in the field.” She referenced medical reports which showed appellant developed coryza and other complaints in the prior building. She also referenced duties statements and an RU-91 job description, which were being faxed to the physician, and requested his approval or disapproval of the alternate job position being offered.
Appellant’s physician responded the same day by fax approving the proposed alternate job placement. Relying upon his response, respondent directed appellant back to work the following Monday at the alternate location. The only condition placed upon his return was that he was not to go into the main building (which had been determined to have caused his complaints) and, if necessary, to obtain documents/materials from the building, others would be assigned to retrieve them.
Respondent’s faxed letter to appellant advised him that he was expected to perform winter design work and contract administration tasks at the new location beginning February 17, 1998; and that he was to be under a new supervisor.
Appellant did not call his new supervisor and advise her he would not be returning. Although he called and left a message for the Construction Manager, he did not request further leave time in his message. Appellant made it clear, however, both to the Construction Manager and Personnel Manager (as set forth at Section V above) that he did not intend to return.
Appellant was questioned at the hearing as to why he did not call his new supervisor if he did not plan to come to work on February 17. He testified he did not recall “focusing on it [her name]” in the memorandum. He also testified he did not have her telephone number. However, the Personnel Manager testified that he called her; and she told him to call his supervisor. Appellant had adequate resources to follow the advice and get his supervisor’s phone number either from the CalTrans’ staff in Redding or from the Sacramento office staff.
Appellant further argued that he could not be considered absent without approved leave because he was on Industrial Disability Leave (IDL) during the period at issue, February 17 through February 26, 1998. Appellant was granted IDL up to the date of his automatic resignation and was retroactively determined to be entitled to vocational rehabilitation benefits.


At the hearing appellant testified he is not capable of performing the position assigned to him at CalTrans and that he did not have clearance to return to work. Appellant is apparently pursuing the SCIF claim by seeking another medical evaluation. Appellant did not present medical evidence regarding his current ability to work. However, it is clear that appellant will not return to work except under conditions which he sets, not the employer.
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Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the Department of Personnel Administration. 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/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/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 the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
In this case appellant failed to prove that he had a reasonable excuse for not coming to work between February 17 and 26, 1998. Appellant did not claim a medical reason for being off work. He would have preferred to have his desk moved and to work in the same building or to work in another district. Because his preference was not granted, he refused to return. Appellant had other, sensible remedies for negotiating his preferences including filing a grievance and/or reporting to work and appealing an involuntary transfer.
Also in this case, appellant failed to prove that he had a reasonable excuse for not obtaining leave. Appellant failed to make any effort to request a leave of absence or additional leave for the period beginning February 17, 1998, even though he knew a position had been created for him in the Construction Division. He admitted he knew leave requests were to be made to an employee’s supervisor; and he had no reasonable explanation for not contacting King to make a request. Appointing powers must know and are entitled to know where their employees are, when an employee will be absent and when an employee will return to work.
Appellant’s claim that he could not be AWOL because he was entitled to IDL is also rejected. In Raghvendra Singh (1995) DPA’s Chief Counsel stated, “No other agency, including the Employment Development Department with its grants of Non-Industrial Disability Leave and the State Compensation Insurance Fund with IDL, may grant permission to be absent to the employees of another agency.” Only an employee’s appointing power may grant leave. Therefore the fact that CalTrans’ insurance company paid appellant IDL for the period immediately prior to appellant’s automatic resignation is not controlling.
Finally, appellant failed to demonstrate that he was willing to unconditionally return to work at this time; and he claimed he lacked medical clearance. DPA does not have authority to reinstate an employee to State civil service under Government Code section 19996.2 if that employee is not currently willing and able to return to work.
For the reasons set forth above, appellant’s request for reinstatement should be denied.

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that the request for reinstatement after automatic resignation effective close of business February 16, 1998, is denied.
  Updated: 5/22/2012
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