DPA Case Number 98-B-0108 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: August 18, 1998

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 9:00 a.m. on August 11, 1998, at Sacramento, California.

Appellant was present without representation.

Alan W. Foutz, Chief Counsel represented the California Unemployment Insurance Appeals Board (CUIAB), respondent.

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

Appellant automatically resigned effective May 18, 1998, and filed a request (appeal) for reinstatement after automatic resignation on June 17, 1998. The appeal complies with Government Code section 19996.2

Respondent notified appellant in writing on or about June 1, 1998, that he would be automatically resigned effective May 18, 1998, for being absent without approved leave from May 18, 1998, to June 1, 1998. Thereafter, appellant filed his appeal with DPA claiming he had a reasonable excuse for being absent and not obtaining leave and that he is currently ready, able and willing to return to work.

Appellant testified that he was absent from work on May 18, 1998, through June 1, 1998, because of a back injury which he sustained approximately four years earlier. (Appellant had apparently been on and off work due to complications over the four intervening years.) Appellant’s treating physician released him to return to work without restrictions on May 18, 1998. Appellant did not return to work on that date. Instead he called and claimed he was still unable to work.

At the hearing appellant insisted that if his physician testified he would explain the mistake.

Appellant’s testimony was inconsistent with a preliminary progress report which his physician sent respondent on or about July 15, 1998. In that report the physician indicated appellant had missed four appointments since May 11, 1998, and had been discharged from physical therapy due to lack of attendance.

Respondent’s Executive Officer testified that upon receipt of the physician’s correspondence of July 15, 1998, he contacted the doctor and asked him in writing, “... could you please confirm in writing whether or not [appellant] was excused from work during the period of time between May 18, 1998, and June 15, 1998?” He received a written reply from the physician advising him that appellant should not be excused for that period.

Neither party called the physician to testify.

Appellant testified that he called in to report his absence on each workday, as required. He stated that when he called in, he was told he would need to provide medical substantiation for his absence. On March 13, 1998, respondent placed appellant on leave restriction and gave him a corrective action memorandum. The memorandum stated in part:

“This is to advise you that effective immediately, you are required to contact me personally within 30 minutes of your start time when you will be absent. A call to any other division of the agency will not be construed as contacting the office. If you are sick, you are required to provide medical substantiation covering your absence . . . . Failure to follow the prescribed procedure for calling in will result in the time being documented as AWOL. Five consecutive dates of AWOL will result in automatic resignation from State service.”

Respondent did not dispute that appellant called to report his absences. Respondent refused to approve appellant’s leave because he did not provide medical substantiation for his claim that he was too ill to work.

Appellant testified he was able to return to work with restrictions imposed by his physician on August 3, 1998. He is not to lift anything above 20 pounds; and he is to avoid repetitive bending or stooping.

Appellant testified he is “willing” to return to work.

On the morning of the hearing, appellant requested a continuance stating he was not feeling well and his “representative” was ill. He identified his representative as the California State Employees Association (CSEA). Appellant, however, appeared at the time and place set for hearing with a substantial number of documents for entry onto the record.

The Hearing Officer invited him to call CSEA and find out if a representative would be forthcoming. Appellant declined and stated, “If that’s how they are going to do business, that’s how they do business. It won’t help the matter.” When asked, appellant agreed he was prepared to go forward without representation.

Respondent objected to the continuance request as untimely.

The Hearing Officer denied the request for continuance on the basis that it was untimely and was without good cause shown.

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 regard to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that 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 provide a satisfactory explanation for being absent from work between May 18, 1998 and June 1, 1998. His claim of medical necessity was contradicted by information provided respondent by his own physician.

Appellant did not provide a satisfactory explanation for failing to obtain approved leave. Calling and leaving a message that he would not report to work did not relieve him of his responsibility for complying with the corrective action memorandum by presenting adequate medical substantiation.

Whether or not appellant is ready, able and willing to return to work need not be addressed because appellant failed to make a satisfactory explanation to DPA as to the cause of his absence and his failure to obtain leave therefor.

Based upon the above evidence and findings, it is concluded that appellant should not be manditorily reinstated to the position of Office Technician (Typing).

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that the appeal for reinstatement after automatic resignation effective May 18, 1998, is denied.