Final Non-Precedential Decision Adopted: August 1, 2006

By: David A. Gilb, Director

On January 10, 2005, respondent notified appellant by mail that he was being automatically resigned for being absent without leave (AWOL) from January 4 through January 10, 2006. Appellant had until January 30, 2006 to timely file his appeal. Appellant did not file his appeal until February 1, 2006. The appeal was two days late.

Appellant claimed good cause for late filing. Respondent challenged appellant’s credibility.

A hearing to determine jurisdiction and to hear the merits of the case was held on July 21, 20061 in Riverside, California.

Appellant, represented himself. Lydia Lewis, Staff Services Manager, represented the Department of Transportation (DOT), respondent.

The appellant called one witness and did not enter any exhibits. The respondent called two witnesses and entered 11 exhibits. Six additional documents were officially noticed.

Appellant argued his late-filed appeal should be accepted because he had good cause for late filing. He argued he should be reinstated because he had valid reasons for being absent. He cited physical problems and “stress” from a hostile work environment as reasons for his absence. He also reported he was ready, able and willing to return to work. He finally contended he was not absent for five consecutive days and therefore could not be automatically resigned.

Respondent countered that appellant’s appeal should be dismissed because he failed to prove good cause for late filing. Respondent argued appellant was absent for five consecutive days and should not be reinstated because he failed to prove he had a valid reason for being absent; he failed to prove he had a valid reason for not obtaining leave; and, he was not willing to return to work.

Appellant was employed as an Equipment Material Manager III.

His work hours were Monday through Friday, 6:00 a.m. to 2:30 p.m.

Respondent mailed appellants’ notice of automatic resignation on January 10.

The notice stated in relevant part:

“Whether or not you respond to the appointing power, you still have the right to file a written request for reinstatement with the Department of Personnel Administration (DPA), 1515 "S" Street, North Building, Suite 400, Sacramento, CA 95814, within fifteen calendar days of the date of service of this notice. The request for reinstatement is made pursuant to Government Code 19996.2. If you file a timely appeal, the Department of Personnel Administration or its authorized representative shall hold a hearing within a reasonable time.”

The envelope containing the notice was postmarked January 11. Appellant believed his appeal was not due until January 31.

Appellant had an informal hearing (Coleman Hearing) on January 31. Appellant believed his automatic resignation would be rescinded at this hearing. Appellant’s automatic resignation was not rescinded.

Appellant began to draft his appeal on January 30. Appellant attempted to finish his appeal after the Coleman hearing on January 31. Computer problems delayed the mailing of the appeal. The appeal was postmarked February 1.

Respondent did not challenge appellant’s testimony at hearing about his claim of good cause for late filing.

Appellant filed a “Whistleblower Complaint” in June 2004.

Appellant’s supervisor changed in September 2004. Appellant believed his new supervisor retaliated against him for filing the June 2004 Whistleblower Complaint.

A Highway Equipment Supervisor III, became appellant’s supervisor in July 2005. A Highway Superintendent I, was his second level supervisor.

Appellant began missing work in May 2005. He was absent from August 21, 2005 through September 18, 2005 and from October 24, 2005 to January 2, 2006. His doctor excused him from work because he was suffering from work-related stress. Appellant submitted doctor’s notes to verify his absences for these periods.

Appellant returned to work on January 3, 2006.

Appellant met with Highway Equipment Supervisor III and Highway Superintendent I at approximately 7:00 a.m. on January 3. Highway Equipment Supervisor III told appellant his computer was being replaced that day because it had malfunctioned. Highway Equipment Supervisor III also informed appellant his access codes for the work area were being revoked. This meant appellant would be unable to work overtime unless it was approved in advance. Appellant was previously instructed in writing on December 9, 2004 not to work overtime without receiving prior approval. During the January 3 meeting, Highway Equipment Supervisor III reminded appellant he needed to submit doctor’s substantiation of his absences in a timely manner or his absences would not be approved.

Appellant was upset his computer was not functioning, because he had lost data that had been stored on his computer, and, because his access codes were revoked.

Appellant worked his full shift on January 3.

Appellant did not work on January 4, 5, 6, 9, and 10. He was scheduled to work on these days.

Appellant contacted Highway Equipment Supervisor III on Wednesday, January 4. Appellant reported he was unable to grasp or write so he would not be at work. Appellant believed he was suffering from tendonitis and/or carpal tunnel in his left arm. He told his supervisor he was going to see his doctor that morning.

Appellant saw his doctor at approximately 3:00 p.m. on January 4. Appellant’s doctor referred him to Occupational Medicine for treatment under the workers’ compensation program. The doctor also prescribed medication for appellant’s hand problem. The doctor did not excuse appellant from work.

On Thursday, January 5 appellant sent Highway Equipment Supervisor III an e-mail message saying he would not be at work because he had an upset stomach from the medication prescribed for him on January 4. Appellant also sent Markussen a copy of the note he received from the doctor on January 4. The note did not excuse appellant from work.

Highway Equipment Supervisor III was out of the office January 5. Highway Superintendent I sent appellant an e-mail on January 5 asking him if his hand problem was work-related. Highway Superintendent I also told appellant he must provide a doctor’s note excusing him from work on January 4 and 5.

Appellant e-mailed Highway Equipment Supervisor III on Friday, January 6, saying his right ankle was swollen and he was not coming to work. He informed Highway Equipment Supervisor III he had a 5:00 p.m. doctor’s appointment on that day. He also reported that if he didn’t see the doctor that evening, he would go to the doctor on Saturday, January 7. Appellant ensured his supervisor he would keep him apprised of his status. Appellant also forwarded three worker’s compensation claims. One was for his hand injury; one was for stress; and, one was for the condition in his ankles which he claimed was not work-related.

Appellant did not see a doctor on January 6 or January 7.

Appellant did not contact respondent to report his absence on Monday, January 9 or Tuesday, January 10.

Highway Equipment Supervisor III sent appellant an e-mail on January 9 reminding him he was expected to provide a doctor’s note excusing him from work on January 4, 5, 6, and 9 and telling appellant he was AWOL. Highway Equipment Supervisor III asked the appellant to send the information and call him. Appellant did not call Highway Equipment Supervisor III and he did not provide a doctor’s note. But, appellant did send Highway Equipment Supervisor III an electronic memo on January 9 asking for copies of various personnel records.

Appellant met with two different attorneys from January 4 through January 10. One represented him in his workers’ compensation claims and the other represented him in a second whistleblower case that was filed on July 14.

Appellant never provided respondent with any medical verification of his inability to work from January 4 through January 10.

Respondent changed its absence reporting and leave policies in or about August 2005.

Highway Equipment Supervisor III met with appellant to discuss the new policies. On August 8, 2005, Highway Equipment Supervisor III issued a memo to appellant outlining the requirements for obtaining leave. Highway Equipment Supervisor III instructed appellant that a doctor’s note verifying his absence must be an original; give the medical provider’s telephone number and address; be signed by the provider; indicate the date appellant was treated, the full period of appellant’s required absence, and the date of his return to work; and, the note must outline any work restrictions. Appellant was also instructed the requested medical note must be obtained during the period of absence and confirm the appellant’s inability to work. Highway Equipment Supervisor III ordered appellant to provide the note either on his return to work or within three days of the beginning of the absence, whichever came first. Highway Equipment Supervisor III warned appellant that failure to follow the procedures for five consecutive days would result in separation from employment under Section 19996.2.

Prior to the new procedures in August 2005, Highway Equipment Supervisor III approved appellant’s full day of absence if he went to the doctor on that day. Highway Equipment Supervisor III did not approve a full day of absence for a doctor’s visit after the absence reporting policy changed in August 2005.

1. The appellant bears the burden of proof and the standard of proof is the preponderance of the evidence. (Aguila v. Atlantic Richfield (2001) 25 Cal. 4th 826.)

2. Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement:

19996.2. (a) Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.

A permanent or probationary employee may within 90 days of the effective date of such separation, file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing. Reinstatement may be granted only if the employee makes a satisfactory explanation to the department 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.

3. DPA Rule 599.904 permits DPA to hear an appeal that was filed late if the appellant can prove good cause for late filing.

4. To determine if there is good cause for late filing, three factors must be considered: (1) the length of the delay, (2) prejudice to the respondent; and (3) the reason for the delay. (Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364.)

5. Courts have found delays up to six days to be de minimus (Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364).

Appellant’s appeal was two days late. The delay was de minimus. There was no prejudice to respondent because of appellant’s two day delay. Appellant’s appeal was not filed on January 31 because he had computer problems. Appellant’s testimony about his computer problems was unrefuted.

Appellant did not present a doctor’s note verifying his inability to work from January 4 through January 10. Appellant did not go to the doctor for treatment after January 4. No medical provider was called to testify. Appellant self-diagnosed his inability to work. Appellant’s unsubstantiated self-diagnosis is an inadequate basis on which to conclude he had a valid reason for being absent.

Appellant was well aware of the requirements to obtain leave. He had previously provided doctor’s notes excusing his absence. Appellant was ordered to bring a doctor’s note verifying his absence on January 5. According to the August 8, 2005 written procedures, appellant had until January 9 to produce the doctor’s note. Highway Equipment Supervisor III reminded appellant of this requirement on January 9. Appellant failed to produce a note as required.

Appellant believed his work environment is hostile. He admitted he was willing to return to work only to see if the work environment changed. But, appellant’s supervisor and duties will be the same as they were at the time of his automatic resignation.

Appellant presented good cause for late filing. DPA accepts jurisdiction over appellant’s late-filed appeal. Appellant failed to prove he had a valid reason for being absent from January 4 through January 10. Appellant failed to prove he had a valid reason for being absent for five consecutive work days. Appellant failed to prove he was ready, able and willing to return to his former position and duties.

Appellant’s appeal of his automatic resignation effective January 3, 2006 is denied.

 

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1. All dates are 2006 unless otherwise indicated.