DPA Case Number 05-S-0111 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: April 11, 2006

By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 4, 2006, at Riverside, California.

Appellant, was present and represented herself.

Monrow A. Mabon, Staff Counsel represented the California Department of Corrections and Rehabilitation (CDCR), respondent.

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

By letter dated September 20, 2005, respondent noticed appellant she was being automatically resigned effective July 9, 2005, for being absent without approved leave from

July 9, 2005 through September 9, 2005.1 SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on October 5, 2005. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she had a valid reason for being absent because the respondent sent her home and told her she could not work. She argued she had a valid reason for not obtaining leave because she believed she was not required to obtain leave. Appellant also argued she is ready, able, and willing to return to work.

Appellant was on a medical work restriction which allowed her to work six hours per day. On or about July 9, appellant reported to work and was told she had to see the Health and Safety Officer. The Health and Safety Officer told appellant she was to go home and not come back to work until she could work fulltime because she was only allowed to work on restricted duty for 60 days.

Between July 9 and September 9, appellant was treated by her primary care psychiatrist and a second doctor at Kaiser Permanente in an attempt to get a release to return to work fulltime. Although appellant explained she had to be cleared to return to work fulltime in order to work at all, and that she was desperate to return to work because she needed the money. Her doctors were unwilling to release her to work fulltime. They required her to at least complete a hospital-sponsored treatment program which required her to attend every day during her normal work hours. Appellant began the treatment program on July 26. On September 9, her physicians would still not release her to return to work on a fulltime basis. She testified she never received a release to return to fulltime work from her Kaiser health providers.

Appellant’s testimony regarding her reason for absence was uncontested. Appellant had a valid reason for being absent.

Appellant argued she had a valid reason for not obtaining leave because she believed she did not require leave because respondent ordered her off work.

Appellant called her supervisor during her absence. When she was sent home on or about September 9, she went back to her workplace, left a message for her supervisor, and advised her co-worker she was being sent home. She left additional messages for her supervisor regarding her work and medical status on or about July 10, July 20, and August 26. Appellant did not submit any medical documentation to respondent while she was absent. She testified without contradiction that in the past she brought medical documentation to support any absences at the time she returned to work.

Respondent apparently believed appellant failed to provide adequate documentation of her status while she was off work. However, it presented no evidence that appellant was ever instructed she was to report in regularly or that she was to provide documentation of her medical status to anyone at any particular time.

Apparently respondent sent a letter to appellant in September warning her that failure to provide medical documentation by a specific date would result in automatic resignation. However, the appellant testified she never received the letter until it was included as an attachment to the September 20 Notice of Automatic Resignation. The warning letter was not introduced into evidence and there was no respondent testimony regarding its mailing or other service on appellant.

Appellant had a valid reason for not obtaining leave because she was ordered off work by her employer and received no instruction on when, where, or how she was expected to notify her employer of her medical status.

Appellant testified without contradiction she was ready and able to return to work fulltime. This testimony was supported by medical documentation dated January 30, 2006.

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal 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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether 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 that she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

As described previously, appellant met her burden of proof in all areas.

 

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that the appeal for reinstatement after automatic resignation from the position of Office Technician (Typing) effective July 9, 2005, is granted. Respondent is to reinstate appellant without back pay not later than thirty-one days after receipt of this decision and order.

 

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1. All dates are 2005 unless otherwise indicated.