DPA Case Number 98-F-0079 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 22, 1998

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 9:00 a.m. on June 17, 1998, at Sacramento, California.

Appellant was present without representation.

Carol A. McConnell, Labor Relations Counsel, DPA represented the Department of Community Services and Development (CSD), respondent.

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

Appellant automatically resigned effective April 21, 1998, and filed a request for reinstatement after automatic resignation on April 30, 1998. The request for reinstatement complies with Government Code section 19996.2.

On April 22, 1998, respondent personally served appellant with a Notice of Automatic Resignation. The notice advised her that on May 1, 1998, she would be considered to have automatically resigned on April 21, 1998, because she was absent without approved leave from April 14 through April 21, 1998. Thereafter, appellant filed a request for reinstatement with DPA claiming she had an acceptable reason for being absent and not obtaining leave and that she is currently ready, able and willing to return to work.

Appellant testified that she was unable to work between April 14 and 21, 1998. She stated that on April 14, 1998 she felt ill and was suffering from a headache. She was “emotionally unable to go into work.” She testified that on April 15 and April 16 she had the same symptoms. She also testified that on April 16, she “felt tired, stressed [and]...worn down.” She testified that on Friday, April 17, she had the same symptoms and “I just could not do it.” On Monday, April 20, she testified she had a problem with high blood pressure or assumed she did since the doctor told her the week before she had high blood pressure. She acknowledged she had not taken her blood pressure since the April 15 visit.

Appellant did not place on the record any reliable medical evidence which supported her claim that she was unable to work because of illness.

Appellant brought to the hearing two visit verifications from Kaiser Permanente which she presented to her supervisor on April 22, 1998.1 The first verification was dated April 15, 1998, and signed by her physician. It stated appellant “was seen at this office on 4-15-98,” and “states she has been ill and unable to work from 4-14-98 through present.” It also indicated she could return to work without restrictions on 4-16-98. The second verification, dated April 21, 1998, was signed by another physician. It stated appellant “was seen at this office on 4-21-98” and “states he/she has been ill and unable to work from on 4-17-98.” It presented a diagnosis of “anxiety, situational, insomnia.” A line is drawn to 4-17-98 with the comment, “same feeling as today.” It indicated “can return to full duties with no restrictions on 4-22-98.” Appellant called her second-line supervisor on April 14, 1998, and advised him she would not be present at work. She called her direct supervisor on April 16, 1998 and advised her she was ill. She did not otherwise contact her supervisors during her absence.

When appellant returned to work, respondent denied approval for her five-day absence on two grounds. The first reason respondent denied approval was that appellant did not comply with reporting requirements. Appellant had been counseled verbally and in writing as to the existing reporting requirements. Appellant was required to call her direct supervisor within one-half hour of the start of her work shift if she was unable to report and, if she was unable to reach the supervisor directly, she was required to leave a voice mail message on her supervisor’s telephone along with a number for a call back. Appellant did not comply with these requirements on any day except April 16, 1998, even though her supervisor was in the office each day.

On February 14, 1997, appellant’s supervisor served her with an Attendance Restriction Memorandum based on excessive use of sick leave. The memorandum readdressed her reporting requirements. It advised her she was required to provide medical substantiation for all illness and verify the dates of illness and the date of release. It also stated in relevant part as follows.

“If you were ill, the statement must report that you were physically unable to work for the period of absence. If you were advised by the medical facility not to be seen in person, the statement must reflect that advice. We will not accept a statement that simply states, ‘Patient stated he/she was ill and unable to work.’ Failure to bring the required statement upon returning to work will result in determining that you were not legitimately absent and in reporting the unapproved absence as Absence Without Leave (AWOL). Such failure may result in adverse action.”

The second reason respondent disapproved leave for appellant was her failure to provide adequate medical substantiation upon her return to work. The medical verifications referred to above were considered deficient because the first verification did not indicate appellant had a valid medical reason for being off work. Taken as a whole it merely indicated she went to Kaiser and told the doctor she was ill. The second verification provided a medical reason for her to be off work only on April 21, 1998, the last day of her absence. Appellant did not comply with the medical substantiation requirement for any day except April 21, 1998.

The parties agree that appellant is ready, able and willing to return to work.

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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 did not prove by the preponderance of the evidence that she had an acceptable reason for being absent from work. Her testimony was insufficient to establish that she was medically unable to work.

Also, appellant did not prove by the preponderance of the evidence that she had an acceptable reason for not obtaining leave. Appellant did not reasonably explain why she did not report her absence directly to her supervisor each day, as required. It is concluded that this failure was intentional because she was well aware of the reporting requirements and the consequences for failure to comply. She also did not reasonably explain why she failed to comply with the requirements by providing adequate medical substantiation for her absences on April 14 through April 20, 1998.

Appellant is currently ready, able and willing to return to work.

For the reasons set forth above, it is concluded that appellant should not be mandatorily reinstated to the position with CSD.

that the appeal for reinstatement after automatic resignation effective April 21, 1998, is denied.

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1. The visit verifications were entered into evidence for the limited purpose of demonstrating appellant submitted some medical substantiation upon her return to work. They were also considered in determining whether appellant complied with the reporting requirements. The verifications were not used to prove or disprove the medical condition, if any, because the physicians were not present to testify and there was no other reliable corroborative medical evidence.