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DPA Case Number 99-H-0028 - Reinstatement After Automatic Resignation

DPA Case Number 99-H-0028 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 4, 1999
By: K. William Curtis, DPA Chief Counsel


This matter was heard before Mary C. Bowman, Administrative Law Judge, Department of Personnel Administration (DPA) at 11:30 a.m. on April 27, 1999, at Glendale, California.
Appellant was present without representation.
Eric J. Hendrickson, Staff Counsel represented the Employment Development Department (EDD), respondent.
Evidence having been received and duly considered, the Administrative Law Judge makes the following findings of fact and Proposed Decision.


Appellant was automatically resigned on June 19, 1998. She filed a request (appeal) for reinstatement after automatic resignation on March 2, 1999. The appeal complies with Government Code section 19996.2.


Respondent notified appellant in writing on or about February 16, 1999, that EDD intended to “invoke the AWOL statute” effective February 24, 1999, because she had not reported to work from February 1 to February 16, 1999. On March 1, 1999, respondent notified appellant that she was automatically resigned effective June 19, 1998, her last day of approved leave. Appellant appealed her automatic resignation claiming she was absent from work “as a result of an injury” and that her doctor had her “off work since 9/97–thru now.”


Appellant last reported to work on October 23, 1997. She was off work because of exacerbation of injuries received in an automobile accident on September 16, 1993. Up through June 18, 1998, she was receiving Industrial Disability Leave (IDL).
On June 19, 1998, appellant’s IDL benefits ended.
On September 24, 1998, appellant was examined by an Agreed/Qualified Medical Examiner (AME). On November 5, 1998, the AME issued a report, which contained findings and recommendations regarding appellant’s medical condition. The report was mailed to appellant’s attorney and respondent’s insurance provider, State Compensation Insurance Fund (SCIF).
AME found that appellant had an orthopedic injury consisting of “cervical musculoligamentous strain syndrome, chronic strain of the left shoulder and occipital headaches” which resulted in a permanent and stationary workers’ compensation rating and a work restriction precluding heavy lifting, heavy carrying and repetitive overhead work with the left upper extremity. He reviewed her position statement and determined her usual and customary duties as an office assistant with EDD required carrying up to five pounds, two to three times per day; lifting under ten pounds constantly during the work day and occasionally lifting above shoulder level.
The AME concluded:
“According to the submitted job analysis the job duties of an office assistant are of a relatively light nature. Unless the job involves repetitive reaching overhead it appears she would be capable of continuing to perform the job should she so desire. I do believe she would have pain with the sorting activities and filing required, but the pain level should not preclude her performance of these activities. She is therefore not considered to be in need of vocational rehabilitation."
Appellant did not contact her employer after receiving the AME report. On December 18, 1998, respondent’s Chief of the Workers’ Compensation Program sent appellant an options letter. It advised appellant that her IDL had ended June 19, 1998, and requested she elected one of the following options.
1. Report to work as an Office Assistant (Typing) and, if she had any current restrictions to performing her usual and customary duties, present adequate medical substantiation or with management approval use her leave credits accrued;
2. Request reasonable accommodation forms through her manager, if she believed she had a qualifying disability;
3. Apply for Nonindustrial Disability Insurance (NDI) leave;
4. Request a leave of absence with substantiation of a medical reason by writing her immediate supervisor;
5. If she had a permanent disability precluding her from future work as an Office Assistant (Typing), request assistance through the Workers’ Compensation program or pursue vocational rehabilitation (unless currently enrolled);
6. Apply for disability retirement, if eligible;
7. Apply for service retirement, if eligible; or
8. Voluntarily resign from State service.
The options letter also advised her to contact her immediate supervisor regarding her Family Medical Leave Act (FMLA) eligibility; to contact her attendance clerk regarding continuation of her benefits; and to select an option in writing no later than January 4, 1999. It warned that failure to respond might put her employment in jeopardy.
On December 31, 1998, appellant mailed a note to her Office Manager stating:
“My decision regarding employment was based on the options available to me. I chose option #1 to return to work as an OA (T). I will provide a medical release a.s.a.p. [Appellant] 12/30/98.”
Between December 31, 1998, and January 22, 1999, appellant did not contact her employer, did not submit any medical documentation and did not report to work.
On January 22, 1999, appellant’s Office Manager sent her a letter advising her to report to work on February 1, 1999. It warned her that she could be automatically resigned for failing to report. The letter stated she needed to provide an adequate medical release if she had any current restrictions on her ability to perform her duties.
Appellant did not respond personally and did not report to work.
On February 2, 1999, appellant’s attorney sent a letter to respondent’s insurer with a copy to the Office Manager. It stated:
“By copy of this letter, I am notifying the employer of the applicant’s [appellant’s] desire to return to work based on [AME’s] opinion. A copy of [the AME’s] Agreed Medical Report is served upon the employer directly by copy of this letter.”
Appellant still did not report to work.
Consequently, the Office Manager sent appellant a notice of automatic resignation on February 16, 1999, based upon appellant absence from work without approved leave from February 1 (the day she was ordered back) to February 16, 1999.
Appellant testified she did not return to work because she was unable to obtain a medical release from either the AME doctor or her treating physician. However, she acknowledged that when she called her attorney for a referral to her treating physician, he responded, “Forget it. We are going with the AME report,” or words to that effect.


Appellant admitted she never requested leave after her IDL expired. She stated she did not feel she had to obtain leave before the Workers’ Compensation claim was entirely resolved. She also continued to insist she could not return to work because she had not been released to return to work. The evidence was to the contrary and inconsistent with her communications from respondent directing her to come to work or call with an acceptable reason for remaining off work.
Appellant testified she did not formally request reasonable accommodation because she’d asked for it before and been denied. Her Office Manager testified she had made three prior requests for reasonable accommodation, all three of which had been approved and provided at the first level.


Appellant testified she is able to return to work but has not been released.
Appellant also testified that all she was allowed to do before she left was file—she was not allowed to perform the actual duties of her position statement. She testified she did not want to return to work just to file. She claimed she was treated unfairly in the office, pushed by a male supervisor and written up for a lot of things she did not do.
Appellant’s Office Manager testified that appellant did perform the duties on her position statement including screening disability applications, picking up and sorting mail, handling liens, when required, and operating machinery.
Appellant’s statement she had not been released was inconsistent with the evidence. There was no evidence to support her claim of mistreatment or working out of class. However, the statements were demonstrative of her state of mind, which was that she would only return to work if certain conditions she imposed were granted. Her testimony that she was ready, willing and able to return to work was, therefore, not altogether convincing.
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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 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.
In this case appellant failed to establish a satisfactory reason for not reporting to work. Both the AME and her own attorney considered her able to perform her job duties with some accommodation. She never requested accommodation and never reported. She failed to establish a satisfactory reason for not contacting her employer and requesting accommodation or, if in fact she were unable to work, actually requesting medical leave with substantiation.
The trier-of-fact need not reach the issue of her current availability to return to work since appellant has not provided a satisfactory explanation for being absent without approved leave.
Accordingly, it is concluded that appellant should not be manditorily reinstated to her former position as an Office Assistant (Typing) with EDD.
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that the appeal for reinstatement after automatic resignation effective June 19, 1998, is denied.
  Updated: 5/7/2012
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