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DPA Case Number 99-S-0089 - Reinstatement After Automatic Resignation

DPA Case Number 99-S-0089 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 27, 2000
By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA), at 10:30 a.m. on March 1, 2000, and at
9:30 a.m. on May 26, 2000, at Riverside, California.
On the first day of hearing, appellant was present. He was not present at the second day of hearing. Appellant was represented by Paula Negley, Labor Relations Representative, California State Employees Association (CSEA).
David E. Paulsen, Senior Staff Counsel, represented the Employment Development Department (EDD), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

Respondent served appellant with a Notice of Automatic Resignation on July 23, 1999, based upon his absence from July 19, 1999, through July 23, 1999. Appellant was considered to have resigned close of business July 16, 1999, his last day of work. On July 30, 1999, appellant’s representative filed a request (appeal) for reinstatement on behalf of appellant.
This case was originally set for hearing on September 28, 1999. It was taken off calendar at the request of the parties for good cause shown. The matter was restored to the active calendar at the request of appellant’s counsel on January 11, 2000. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Respondent notified appellant in writing on or about July 23, 2000, that effective July 30, 2000, he would be considered to have automatically (AWOL) resigned on July 16, 1999, based upon his absence without leave from July 19 through July 23, 1999. Thereafter, appellant filed his request for reinstatement with DPA claiming he was medically unable to work and had a reasonable explanation for not having obtained leave. Appellant also testified he is ready, able and willing to work.

III - REASON FOR BEING ABSENT

Appellant testified that he was off work the week of July 19 through July 23, 1999, for laboratory tests and to see his doctor. Appellant had blood drawn during the week and visited his doctor the afternoon of July 20, 1999.
A physician testified he treated appellant from August 20, 1998, to August 17, 1999, for high blood pressure, stress, depression and human immunodeficiency virus (HIV). He examined appellant on July 8, 1999, and released him to return to work July 9, 1999. He examined him again on July 20, 1999 and observed a deterioration in his condition which led to prescribing a new medical “cocktail.”
On February 29, 2000, the physician executed a writing indicating that he “instructed [appellant] to take off work as soon as possible on July 8, 1999, due to his health condition.” At the hearing, the physician testified to the same effect and stated that on July 8, 1999, he considered appellant’s job to be causing stress, which jeopardized his high blood pressure and HIV status.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant was absent from work on July 7, 1999. He was placed on unapproved leave without pay for that date because he did not report to work and did not follow reporting requirements. Appellant was also absent from work on July 13 through July 15, 1999. He returned to work on Friday, July 16, 1999, but did not present any medical substantiation. He was placed on unapproved leave without pay for that period because of his failure to provide an off work order from his doctor. (Appellant had received a prior attendance memorandum advising him of the need for medical substantiation of absences.)
Also, on July 16, 1999, appellant’s supervisor met with him and explained the reason he was charged with unapproved leave. She also provided him with forms to apply for Nonindustrial Disability Insurance (NDI) benefits and Family Medical Leave (FML), since he stated he was applying for workers’ compensation benefits.
According to appellant he “advised” his supervisor on July 16 that he was taking the next week off to have some laboratory tests. He also advised her he had a doctor’s appointment on the afternoon of Tuesday, July 20, 1999.
The supervisor testified appellant advised her he had a doctor’s appointment on Tuesday afternoon and she directed him to notify her in writing (by e-mail) prior to approving the request. She also testified appellant did not advise her that he would be off work the entire week of July 19 through July 23, 1999. She expected him to report to work on Monday, July 19, 1999.1
The supervisor testified appellant advised her that laboratory tests taken the prior week would determine what his future course of action would be for his medical condition. And, she gave him NDI and FML paperwork because of his excessive absenteeism and his statements to her that he would be filing for workers’ compensation benefits.
Appellant did not report to work during the week of July 19 through July 23, 1999, and did not call his manager to report the absences.
Appellant reported back to work on July 26, 1999. He was met by the Manager and Assistant Manager and advised he had been automatically resigned. He testified he tried to give the managers an EDD Form for NDI, which they refused to take. The form was completed in part by the physician and stated appellant was not able to work due to hypertension and situational stress. The Manager testified appellant did not offer any documentation of his medical status when he reported back to work.2

V - READY, ABLE AND WILLING

The physician testified that when he last treated appellant on August 17, 1999, appellant was unable to work. Appellant presented a medical slip from another physician dated February 29, 2000, which stated appellant could return to work without restriction on March 1, 2000. The appellant considers himself ready, able and willing to return to work.
Respondent did not challenge appellant’s claim that he is ready, able and willing to return to work.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

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 demonstrated by the preponderance of the evidence that he has serious health problems which were jeopardized by his continued employment in July 1999. The testimony of his physician was sufficient to establish that appellant had a medical reason to be off work between July 19 and July 23, 1999.
Appellant did not prove by the preponderance of the evidence that he had a satisfactory explanation for being absent without approved leave. Appellant had been advised prior to and on July 16, 1999, of the necessity for timely and properly requesting time off. He was aware that for pre-planned time off he was required to request it in writing and obtain approval. For unexpected illness, he was required to call his supervisor each day. He was also aware that he was required to provide medical substantiation for absences related to illness. Despite counsel-ing to that effect on Friday, July 16, 1999, appellant never placed his request to be off work on Tuesday afternoon or any other time after July 16, 1999, in e-mail or written form. He did not formally request leave, did not report to work and did not call his supervisor during the week of July 19 through July 23, 1999. Further, he did not obtain an off work order for his employer.
Appellant is currently ready, able and willing to return to work.
For the reasons set forth above, it is concluded appellant should not be manditorily reinstated to the position of EPR. Appellant retains his permissive reinstatement rights consistent with Government Code section 19140.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective July 30, 1999, is denied.
 
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FOOTNOTES

1. The supervisor’s testimony was corroborated by Form 100’s which she executed on July 14, July 16 and July 28, 1999. Appellant’s testimony was uncorroborated, self serving and not credible in light of the discussion regarding the Tuesday appointment.
2. Appellant’s testimony that he was carrying an NDI form for EDD to the office on the date he came back and he presented it for the purpose of substantiating the last four days of his absence is self serving and not credible in light of the circumstances. Appellant never obtained a timely off work order for his employer, despite counseling on July 16, 1999, reminding him he was required to do so.
  Updated: 5/3/2012
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