print logo
Main Content Anchor

DPA Case Number 99-S-0102 - Reinstatement After Automatic Resignation

​DPA Case Number 99-S-0102 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: March 15, 2000
By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on December 2, 1999, at Sacramento, California.
Appellant was present and was represented by Stephen G. Pongratz, Attorney.
Donald R. Aron, Staff Counsel, represented the Department of Health Services (DHS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent automatically resigned appellant effective close of business September 17, 1999, based upon her absence without approved leave from September 20 through
September 27, 1999. Appellant filed a request (appeal) for reinstatement after automatic resignation on October 12, 1999. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant claimed she was unable to work between September 20 and 27, 1999, because of illness and that she had a satisfactory explanation for not obtaining leave. Appellant also claimed she is currently ready, able and willing to return to work.


Appellant last worked on September 3, 1999. She requested and was granted vacation leave from September 3 through September 8, 1999. On September 9 through September 12, 1999, appellant went to Reno with a friend and gambled.
Appellant called and left messages with respondent but did not seek prospective approval to extend her vacation. Appellant called and spoke directly with her supervisor on September 15, 1999. She advised her supervisor she was having family problems which required her to be off work. Her supervisor retroactively approved her time off for the week of September 15 on the condition that appellant agreed she would return to work on Monday, September 20, 1999. The supervisor also spoke with appellant regarding the Employee Assistance Program (EAP) and encouraged her participation.
The supervisor testified that during their September 15 conversation, she also advised appellant that technically she had been absent without approved leave. She told appellant that if she did not report to work on September 20, 1999, she again would be considered absent without approved leave. Appellant indicated she understood. The supervisor requested a telephone number to contact appellant. Appellant would not give her a number. Instead, appellant advised her supervisor she would be “in and out.”
Appellant did not report for work on Monday, September 20, 1999, and she did not contact her supervisor. For two days, appellant’s supervisor made attempts to contact her and let her know that her additional absences were not excused. She was unable to reach appellant. Appellant left a voice mail on Monday, September 20 stating she was planning on coming to work, but if she was not there by 1:00 p.m., she would see her supervisor the next day.
The supervisor testified appellant left a voice mail on September 21 but did not call in on September 22. The supervisor became concerned about her continuing absence. She called the County Sheriff’s Office on September 22 and was advised that the Sheriff could do a welfare check to see if appellant was okay.
Later that day, appellant called her supervisor to advise her that she had been taken to the Sacramento County Mental Health Treatment Center by the Sheriff’s Office. Records from the Center indicate appellant voluntarily went to the facility and received 20 minutes of crisis intervention counseling. She was diagnosed with depression and released to go home. Both EAP and Out Patient Counseling were recommended.
On September 23, 1999, appellant called her supervisor and said she was really upset about the day before and was not coming to work that day. The supervisor told appellant she was required to provide medical substantiation for her absence from September 20 forward and that it must be provided no later than 1:00 p.m. on Friday, September 24, 1999, if she wished to avoid being automatically separated for continuing unexcused absences.1
Appellant did not report for work on Friday, September 24, 1999. She had a three-page document faxed from the Center to respondent regarding her counseling and crisis intervention session of September 22. She also visited a physician at the Western Allied Medical Group on Friday, September 23 and had his office forward a letter to respondent. The letter simply stated appellant was treated by a physician at the Western Allied Medical Group on September 23, 1999, for “related symptoms of depression, anxiety and nervousness along with fatigue.” Neither document indicated appellant was unable to work for any period of time.
Appellant testified that she was unable to work from September 20 through 27, 1999. She testified she left a voice mail message for her supervisor on September 20 indicating she would be in on the 21st. She said she left a message on September 21 that she was “not feeling good.” She felt “achy” and had a “headache.” She admitted she did not call her supervisor the morning of September 22 but did call later from the Center. (Appellant was at the Center from 3:50 p.m. on.) She was not feeling good that day.
Appellant stated that she “felt empty inside—alone.” She admitted she was told by her supervisor she needed medical substantiation for her absence to be excused. That is why she had the Center’s and the physician’s records forwarded.
Appellant also stated that she called in on Monday, September 27 and told her supervisor, she was fighting a cold and flu and was tired.
Appellant acknowledged that she never told her supervisor that she suffered from other than cold and flu symptoms between September 20 through 27, 1999. She said she didn’t want to express her real problem because she didn’t want the stigma (of mental illness).
After appellant received her notice of automatic resignation, she went to see a licensed Marriage and Family Therapist. The Therapist holds a Masters Degree in Counseling and Psychology. The Therapist testified at the first day of hearing that she examined appellant for the first time on October 4, 1999. The exam took approximately one hour. The Therapist determined that appellant was depressed and having difficulty functioning. She diagnosed her as having a major depression which disabled appellant from working. At the hearing the Therapist testified she had seen appellant approximately five times through December 12, 1999, and confirmed her initial diagnosis that appellant continues to suffer from major depression. She opined that the depression disabled appellant from working before she examined appellant. The basis for that opinion was what appellant told her. She acknowledged she did not consider the effect of appellant’s job loss on September 27, 1999, in forming that opinion.
On the second day of hearing a Licensed Psychologist testified that he had examined appellant the Friday before the hearing (February 11, 2000) and determined appellant is no longer disabled, that she has no depressive symptoms and that she is ready, willing and able to return to work.


Appellant’s counsel argued that appellant had difficulty maintaining normal functions between September 20 and 27, 1999. She usually called to report her absence and was “doing the best she could.” He also argued that she was not informed until September 23, 1999, that she would be considered automatically resigned if she did not bring in medical substantiation on Friday, September 24, 1999.
Appellant testified she called and left some voice mail messages for her supervisor after September 3, 1999, but admitted she did not actually talk with her until September 15. Even on September 15, she would not provide her supervisor with a telephone number where she could be reached.
The supervisor testified that appellant continued to advise her that she was dealing with family problems. Although appellant claimed she was ill (from flu and fatigue) on her voice mails, she never got the medical substantiation required and requested by her supervisor. Also, the supervisor specifically advised appellant on September 15, 1999, that her work was falling behind and that she could be “AWOLED” for not obtaining medical substantiation for her illness. Appellant assured the supervisor that if she was given the rest of that week off, she would report to work on Monday, September 20. (Appellant did not, but claimed she was ill.)
Appellant never requested a leave of absence and never presented timely medical substantiation to merit approving her absence as sick leave for the period September 20 through September 27, 1999. Consequently, respondent was without recourse from treating her continued absence as unexcused.


Appellant testified that she is currently ready, able and willing to return to work without reasonable accommodation. However, she would like to be placed in another program. She stated she was not happy with the Cancer Detection Section because she gave a lot to it and was not credited. She is willing to return to that section, if it is required.
Respondent challenged appellant’s willingness to work in the Cancer Detection Section because she is involved in a gambling debt dispute with another employee.
The Psychologist testified appellant is currently asymptomatic. Respondent also challenged the Psychologist’s diagnosis because it is startlingly different from the Therapist’s.2
* * * * *


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.
Appellant did not prove by the preponderance of the evidence that she was medically unable to work between September 20 and 27, 1999. Clearly, appellant expressed some level of depression while at the Center on September 22, but she was released after 20 minutes and sent home. The first day of hearing was continued for the purpose of obtaining the testimony of the physician from the Western Allied Medical Group who was the only doctor who examined appellant during the time at issue. The physician was not subpoenaed and did not testify, as expected, on the second day of hearing. All other medical information was obtained after appellant was automatically resigned and was insufficient to establish appellant was suffering a depression so severe as to prohibit her from working from September 20 through 27, 1999.
Appellant did not prove by the preponderance of the evidence that she had a satisfactory explanation for not obtaining leave. Respondent has a reasonable policy requiring its employees to provide current medical substantiation for absence due to illness. Appellant had been absent without approved leave for a week on September 15, 1999, when she was allowed to change her leave-status retroactively to approved leave. The only condition placed on her was that she return to work the following Monday or, if she were sick, provide appropriate medical substantiation. Appellant did neither. Appellant was offered an additional opportunity on September 23 to obtain medical substantiation by 1:00 p.m. on Friday, September 24. She did not provide medical substantiation sufficient to place her off work on that date or to excuse the prior period.
Appellant testified she is ready, willing and able to return to work without restrictions. She relied upon the testimony of the Psychologist that as of Friday, February 11, 2000, she is symptom free. No follow-up testimony was presented from the Therapist as to the dramatic recovery, even though appellant acknowledged she continues to see the Therapist. The two diagnoses are dramatically different, given their closeness in time.
It is concluded that appellant has not proved that she had a satisfactory explanation for being absent and not obtaining approved leave. Consequently, no determination has been made as to whether appellant is currently ready, willing and able to return to work.
Based upon the above, it is concluded appellant should not be manditorily reinstated. She does retain permissive reinstatement rights to State service.
* * * * *


that the appeal for reinstatement after automatic resignation effective September 17, 1999, is denied.
* * * * *


1. During the telephone conversation, the supervisor also advised appellant about the Family Medical Leave Act (FMLA) and mailed her documentation relating to it.
2. The Therapist examined appellant in January 2000 but the results of her examination were not made part of the record.
  Updated: 5/3/2012
One Column Page
Link Back to Top