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DPA Case Number 98-G-0121 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 7, 1999
By: K. William Curtis


This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on April 26, and May 13, 1999, at Sacramento, California.
Appellant was present and was represented by Jeff Young, Labor Relations Representative, California State Employees Association.
Respondent, State Board of Equalization (BOE), was represented by John Wallace,
Tax Counsel, BOE.
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 June 1, 1998.1 He filed a request (appeal) for reinstatement after automatic resignation on June 18, 1998. The matter was originally scheduled for hearing on September 3, 1998, by notice of hearing issued July 28, 1998. By letter dated August 10, 1998, respondent filed a motion to dismiss the appeal for lack of timeliness. On August 14, 1998, appellant’s representative filed an opposition to the motion. On August 18, 1998, the ALJ issued a letter ruling that DPA had jurisdiction and the matter was timely. Neither party challenged the ruling.
On August 25, 1998, appellant’s representative called the ALJ and requested a continuance to explore the Family Medical Leave Act interface with a United States Department of Labor representative, on behalf of his client. Respondent did not oppose the continuance. The continuance request was memorialized in a letter from appellant’s representative dated August 26, 1998. The continuance was granted by mutual agreement of the parties. On August 26, 1998, DPA issued a Notice of Time and Place of Continued Hearing setting the matter for October 27, 1998.
On October 23, 1998, the parties’ representatives called the ALJ and requested the matter be taken off calendar by mutual agreement. On October 27, 1998, a confirming letter was received from appellant’s representative. The matter was taken off calendar; and on October 28, 1998, DPA issued a letter confirming the matter was off calendar and advising the parties of the three-year requirement. That requirement is that the matter be brought to hearing within three years or the case be closed by operation of law.
On March 11, 1999, the ALJ received a letter from appellant’s representative requesting the matter be returned to the active calendar and advising of the available dates in late-April and May 1999. On March 15, 1999, DPA issued a Notice of Time and Place of Hearing setting the hearing for April 26, 1999. A second day of hearing was noticed and held on May 13, 1999.
The appeal complies with the procedural requirements of Government Code section 19996.2.


Respondent notified appellant in writing on or about June 10, 1998, that effective June 18, 1998, he would be considered automatically (AWOL) resigned May 31, 1998, based upon his absence without leave from June 1, 1998, through June 8, 1998. Thereafter, appellant filed his request for reinstatement with DPA. The grounds for appeal were not stated in the appeal. At the hearing, appellant claimed he had a satisfactory explanation for being absent and for not obtaining approved leave from June 1, 1998, through June 8, 1998. He also claimed he is currently, ready, able and willing to return to work.


The parties stipulated appellant had a satisfactory explanation for being absent from June 1 through June 8, 1998. Appellant’s medical records from his treating physician indicate that on April 20, 1998, appellant was evaluated (preoperative) for a torn right shoulder rotator cuff injury which required repair with acromioplasty. Surgery occurred on April 22, 1998. Appellant was next seen on May 12, 1998, (three weeks post surgery) and a course of physical therapy commenced. He was scheduled to be reevaluated in three weeks (June 1, 1998). Appellant missed his June 1 appointment. He was rescheduled for June 9, 1998. On June 9, 1998 (seven weeks post surgery) he was cleared from work until August 1, 1998, when he was to be reevaluated. Appellant was released to return to work after August 1, 1998.
Appellant was unable to work from April 20 to August 1, 1998.


Appellant presented medical substantiation on or about March 4, 1998, from his physician that the probable duration of his medical condition or need for treatment was June 1, 1998.
On May 12, 1998, he filled out a workers’ compensation claim with the assistance of his supervisor. The supervisor assisted appellant in filling out the claim because appellant’s arm was in a sling (due to the rotator cuff tear) and he was unable to complete the claim without assistance. At that time appellant advised his supervisor that his doctor had indicated the date of his return to work would be extended, possibly to September.
Also later that day on May 12, 1998, appellant was examined by his treating physician, as indicated above. The physician determined that appellant should be reevaluated in three weeks (on June 1, 1998). An appointment was made for that date.
On Tuesday May 26, 1998, the supervisor mailed a letter to appellant which advised him that if he was unable to return on June 1, he was required to submit medical substantiation to that effect and the substantiation “must be received by close of business May 30, 1998.” The letter also directed him to select one of a number of options if he was not able to return to work including Non Industrial Disability Benefits (NDI), Catastrophic Leave, Medical Leave of Absence, Disability Retirement or Voluntary Resignation. It stated the information regarding the option could be mailed and until a selected option was approved, appellant was required to call in each day within one hour of his start time. The letter concluded “Failure to return the Notices to me with doctor’s substantiation by May 30, 1998, may be grounds for insubordination.”
The letter from the supervisor reached appellant on the afternoon of May 29, 1998, which was a Friday. May 30 was not a State workday. The next State workday was June 1, 1998—the date of appellant’s scheduled appointment with his physician.
On the morning of the scheduled appointment, appellant’s wheelchair-equipped van broke down and he was unable to make it to his appointment. He called and rescheduled the appointment for the next available date, which was not until June 9, 1998.
Appellant called his supervisor twice on June 1, but did not reach him. He left two messages. On June 2 he called and was able to speak with his supervisor. He advised him that he had an appointment for June 9 and that until that date, he would be unable to work. Appellant called again on June 3 (within one-half hour of his start time) and advised his supervisor he would be available if his supervisor wished to speak with him. Appellant testified that the only verbal instruction he received from his supervisor was to continue to call each day.
On the afternoon of June 3, 1998, the supervisor mailed a letter to appellant. In it the supervisor acknowledged that appellant had contacted him on June 1, June 2 and June 3 and informed him of his efforts to obtain a new appointment and necessary medical substantiation from his doctor. The letter went on to state, “At this time your absences are unapproved and considered Absence Without Leave (AWOL). You are expected to report to work immediately. Failure to do so will result in automatic separation from state service or formal adverse action.” Appellant testified he got the letter on or about June 4 or 5.
Appellant continued to call each day including June 4, June 5 and the morning of Monday, June 8, 1998. He advised his supervisor he was waiting for the new appointment. On the afternoon of June 8, 1998, the supervisor called appellant and told him not to bother to call in any more because he had been automatically resigned.
Appellant went to his doctor’s appointment on June 9, as scheduled. The doctor concluded appellant would remain unable to work until at least August 1, 1998. Medical substantiation of his continuing inability to work until August 1, 1998, was undisputed at the hearing. Respondent’s position is that because it was not timely, appellant should not be reinstated.
Appellant claimed that prior to automatically resigning him, his supervisor never indicated he was at risk of automatic resignation for not submitting the medical substantiation on June 1. Therefore, he was shocked when the supervisor called him on June 8 and told him he had been resigned. Appellant also testified and it was undisputed that he called each day, as directed to report his illness/injury. The only reason he was unable to provide timely medical substantiation to extend his leave was that he unavoidably missed his appointment due to transportation failure. (Appellant uses a wheelchair and his van is equipped to transport his non-collapsible wheel chair. A cab or regular vehicle cannot do that.) Appellant argued he made a good faith effort to comply with reporting requirements which should have entitled him to leave because at all times, his supervisor knew he was injured and unable to work.
Respondent claimed appellant intentionally failed to comply with the reporting requirements and his failure should not be excused because the May 26 letter placed him on notice of the necessity for submitting timely medical substantiation or face automatic resignation.


The parties stipulated that appellant is currently 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 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/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.
Consistent with the stipulation of parties, it is found that appellant had a satisfactory explanation for being absent and is currently ready, able and willing to return to work. The sole issue in dispute is whether appellant had a satisfactory explanation for not obtaining leave approval for the period June 1 through June 8, 1998.
Based upon the record made at hearing, it is determined that although appellant did not strictly comply with the reporting requirement providing timely substantiation of his need to extend his medical leave, appellant provided a reasonable explanation for his failure. Accordingly, appellant should be reinstated without back pay to his position as an Associate Programmer Analyst with BOE. Said reinstatement should be effectuated no later than one week after receipt of the decision in this matter.
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that the appeal for reinstatement after automatic resignation effective June 1, 1998, is granted.
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1. The Notice indicated appellant was to be automatically resigned effective May 31, 1998. That date is a Sunday. The work history from the Controller’s Office indicates he was actually resigned close of business June 1, 1998.
  Updated: 5/1/2012
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