DPA Case Number 98-A-0180 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 6, 1999

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 11:30 a.m. on May 11, 1999, at Glendale, California.

Appellant was present and was represented by Paula Negley, Legal Counsel, California State Employees Association (CSEA).

Melanie A. McClure, Staff Counsel represented the Department of California Youth Authority (CYA), respondent.

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

Appellant was automatically resigned effective close of business May 18, 1998. On October 23, 1998, appellant filed a request (appeal) for reinstatement after automatic resignation. In her appeal appellant stated she had filed an earlier (timely) appeal with DPA which had not been acted upon by DPA. On January 11, 1999, a jurisdictional hearing was held before ALJ Bowman. At the hearing, respondent’s representative stipulated that “in the absence of anything to the contrary, appellant filed a timely appeal on or about June 17, 1998,” which entitled appellant to a hearing upon the merits.

Accordingly, it is concluded that the appeal complies with the procedural requirements of Government Code section 19996.2.

Respondent notified appellant in writing on or about June 1, 1998, that effective June 8, 1998, she would be considered to have automatically (AWOL) resigned close of business May 15, 1998, based upon her absence without leave from May 18 to May 31, 1998.

In her appeal appellant claimed she had a satisfactory explanation for her absence from May 18 to May 31, 1998, and for not obtaining leave. Appellant further claimed at hearing that she would be able to return to work June 7, 1999, based upon a release provided by her physician.

Appellant last worked May 14, 1998. On that date she reported to her duty officer that she was experiencing severe neck pain, which she claimed was work related. The duty officer reported the injury/illness to respondent’s Health and Safety Office. Appellant filled out an employee’s claim for workers’ compensation benefits and was directed to a medical provider by the Health and Safety Office.

Appellant was examined and evaluated by a physician at a WorkCare facility at approximately 9:50 a.m. to 10:35 a.m. The physician determined that appellant could return to work but should have modified work subject to the following restrictions: no straining of back neck or lumbar; no lifting over five pounds; limited stooping and bending; no pushing or pulling over five pounds. He also concluded she could type and work on the computer for 15-minute intervals with 15-minute rest periods in between. The physician diagnosed her injury as neck and back strain. He also noted left wrist and hand pain with previous diagnosis of carpal tunnel syndrome. He scheduled a specialist referral for the wrist and hand problems, which were previously reported as a workers’ compensation injury.

Appellant did not return to work as directed by the physician. She did not call her supervisor or the Health and Safety Office to advise respondent she was not returning that day.

Appellant testified that she instead visited a second physician on May 14, 1998. She brought to the hearing a Disability Request form from that physician’s office. The form was signed and dated May 14, 1998. It stated:

“This is to certify that [appellant] is under my professional care and has been placed on disability from 5/14/98 to 5/18/98 for the condition of:

847.0 Musculoligamentous Sprain/Strain Cervical region.

847.1 Musculoligamentous Sprain/Strain Thoracic region.

If you have any questions, please feel free to call me.”

Appellant did not provide respondent a copy of the Disability Request form prior to her automatic resignation. At the hearing, she testified she requested the second physician’s office send a copy to respondent. Respondent did not receive a copy from the physician’s office.

On May 14, 1998, WorkCare notified respondent’s Health and Safety Office of appellant’s evaluation by her physician and that appellant was directed back to work with the work restrictions indicated above.

On May 15, 1998, appellant did not report to work. At 10:15 a.m. appellant went to the Health and Safety Office and informed them of her specialist referral. She called the specialist’s office from the Health and Safety Office and scheduled an appointment for May 21, 1998, at 10:15 a.m. She advised the Health and Safety Office that she would return to work Monday, May 18, 1998, and would report to the Health and Safety Office. She also called the Treatment Team Supervisor from the Health and Safety Office and told him she was not reporting for work on Friday, May 15, 1998. A secretary at the Health and Safety Office memorialized her visit in a memorandum dated May 15, 1998, at 10:30 a.m. On Monday, May 18, 1998, appellant did not return to work. She called the Health and Safety Office at 8:48 a.m. stating she was going to her “own” doctor. She was advised that she had been directed to WorkCare and reminded of her May 21, 1998, appointment with the specialist. She also was advised that there was modified duty available to her if she reported to work. Appellant stated she was not coming to work. She did not call the Treatment Team Supervisor on May 18, 1998 to notify him she was not coming to work.

On Tuesday, May 19, 1998, appellant went back to WorkCare. She was reexamined and evaluated by her physician from 10:40 a.m. to 11:05 am. He determined that the modified work schedule should be in effect for an estimated three weeks but noted she should not do any typing or computer input until Thursday when she was seen by the specialist regarding the wrist and hand problem.

Appellant did not report for work on May 19 or May 20, 1998 and did not call her supervisor. On May 21, 1998, appellant was examined and evaluated by the specialist. The specialist determined appellant should continue her regular work. The specialist advised appellant that the only injury treatable by her was the hand and wrist injury under the prior workers’ compensation claim.

Also on May 21, 1998, appellant called supervisor Hamel and told him she was coming in to work for modified duty. She never showed up. Appellant did not report to work on Friday, May 22, 1998, either. Monday, May 25, 1998, was a State holiday. She did not report to work on Tuesday, May 26 through Friday, May 29, 1998. Her supervisor did not receive any telephone calls or messages from her that she would be absent on any of the dates. He memorialized her failure to report to work and her failure to call on logs for those dates and in a memorandum to the Superintendent of Fred C. Nelles Youth Correctional Facility on May 5, 1998. At the hearing, he testified consistent with his memorialized documents.

On May 27, 1998, appellant called the Health and Safety Office and advised that the specialist had not taken her off work. She was vague about when she would actually return to work. That was the last contact the Health and Safety Office had with appellant prior to her automatic resignation.

Appellant was mailed her notice of automatic resignation on June 1, 1998. On or about June 10, 1998, appellant had a Coleman hearing before respondent. At that hearing she submitted a Disability Request form from the second physician dated June 10, 1998. It certified that she was placed on disability from May 19 and June 3, 1998, by the second physician for “847.00 (Spinal Condition) Musculo ligamentous Strain/Sprain Cervical and Thoracic Regionals.” At the hearing appellant testified that she had an original excuse dated May 19, 1998, but she had lost it. She was unable to produce it or any other paperwork from the second physician. Neither the second physician nor a member of his staff was called as a witness to confirm the lost document claim. The document, which was entered into evidence at the hearing, does not indicate it was a corrected copy, therefore, it is presumed to have been prepared by the second physician’s office on June 10, 1998.

At the hearing appellant testified she had been under the care of the second physician and provided chiropractic treatment by him since May 14, 1998, and had numerous visits with him between May 14 and June 3, 1998. She claimed she was unable to work between May 14 and May 31, 1998 because of neck pain, despite the evidence to the contrary.

Appellant considered her efforts to maintain contact with her employer, as outlined above, sufficient to entitle her to leave from May 18 through May 31, 1998.

The record reflects that appellant made only one contact with her supervisor during that time period (on May 21, 1998); and the substance of the conversation was that she was returning to work. Appellant did not provide any medical substantiation to her employer prior to her automatic resignation that she needed to be off work due to illness/injury. In fact, the medical substantiation received indicated she was able to perform modified work and work was available.

In addition, appellant was issued a record of Work Improvement Discussion (WID) on August 29, 1997. It memorialized a discussion between appellant and the supervisor on August 13, 1998. The supervisor advised appellant in the WID that when she was going to be absent she needed to contact her immediate supervisor by 8:00 a.m. on the day of the absence. The WID also advised she needed to provide medical verification of medical absences when using sick leave. An action plan was proposed to ensure compliance with reporting requirements. The WID was to be in effect through August 12, 1998.

It is concluded based upon the WID and the testimony of her supervisor, that appellant was well aware of reporting requirements and the need for medical substantiation for medical absences and chose not to comply.

Appellant did not present medical evidence as to her current condition. However, she admitted she is “off on workers’ compensation.” At the hearing she offered a single sheet of paper from an Orthopedist dated May 10, 1999, stating, “My patient [appellant] is to return to work: 6/7/99. Remarks: Report will follow to this regard.” Appellant testified she is able to return to work June 7, 1999, based upon the Orthopedist’s evaluation.

Respondent opposed the admission of the document. It does not indicate when the Orthopedist examined and evaluated appellant and it does not contain a diagnosis or a prognosis. Appellant did not offer the Orthopedist as a witness. The document was not made part of the record.

It is concluded that appellant is not currently ready, willing and able to return to work based upon her own admission.

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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 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. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence the she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

In this case appellant did not submit evidence sufficient to establish that she was unable to work due to medical reasons from May 18 through May 31, 1998. The weight of the evidence was to the contrary. Appellant had neck pain, which required modified work, but appellant did not report for nor accept the modified work offered.

Appellant did not provide a satisfactory explanation as to why she failed to call her supervisor on any of the dates between May 18 and May 31, 1998 to advise him she would not be at work. The one exception was May 21, 1998; and her call on that date was to tell him she would return to work. Appellant also failed to provide any medical substantiation sufficient to support medical leave. She never submitted any documentation from the physician to respondent to cover her absence between May 18 and May 31, 1998. Appellant was made aware of the necessity for timely and properly requesting and substantiating leave usage in August 1997.

Finally, even if appellant provided a satisfactory explanation for her absence and failure to obtain leave, appellant admits that she is not currently able to return to work.

Accordingly, the request for reinstatement should not be granted.

 

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that the appeal for reinstatement after automatic resignation effective May 15, 1998, is denied.