Final Non-Precedential Decision Adopted: June 2, 2003

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 27, 2003, at Sacramento, California.

Appellant was present and was represented by Ron Ainsworth, Labor Relations Representative, California State Employees Association (CSEA).

W. Gregory Day, Senior Tax Counsel, represented the State Board of Equalization (BOE), respondent.

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

Respondent automatically resigned appellant pursuant to Title 2, section 599.828 of the California Code of Regulations (DPA Rule 599.828) for being absent without approved leave on February 28, 2003, March 3, 2003, and March 4, 2003. CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant's behalf on March 27, 2003.¹ The appeal complies with the procedural requirements of Government Code section 19842.5 and DPA Rule 599.828.​​

Respondent notified appellant in writing on or about March 6 that effective March 18, she would be considered to have automatically resigned on February 27 based upon her waiver of three or more requests to work. Appellant was charged with waiving scheduled work on February 28, March 3, and March 4. Appellant admitted she did not report for work on the dates at issue and she did not contest that she waived reporting to work on February 28 and March 4. However, she claimed she did not waive coming to work on March 3 because she was not properly contacted to come to work on that day.

On or about December 4, 2002, respondent issued a memorandum notifying its PI employees that "Any employee who does not report to work without a valid reason, after being called will receive a Waiver [sic] for each day they fail to report." Appellant received this memorandum.

On February 27, appellant's supervisor told appellant that February 28 was a mandatory work day based on operational need and she was to report to work. Appellant told her supervisor she would not work at BOE on February 28 because she was scheduled to work at an alternate place of employment. The supervisor told appellant she would be considered absent without leave if she did not report to work at BOE. Appellant did not work at BOE on February 28. She worked at her other job until 5:00 p.m. At 5:00 p.m., appellant left town. She did not notify her supervisor she was or would be unavailable or unreachable and she did not provide an alternate telephone number or any other method by which she could be contacted.

Prior to 2:30 p.m. on Friday, February 28, respondent left a voice mail message for appellant telling her she was to report to work on Monday, March 3. Appellant did not report to work on Monday, March 3. Appellant did not get the message she was to report to work on March 3 until she returned home at 8:30 p.m. that evening. Appellant did not attempt to contact anyone at BOE to explain her absence on March 3.

On Monday evening, March 3, appellant also received a second voicemail message telling her to report to work on Tuesday, March 4. Appellant did not go to work at BOE on March 4. She worked at her other job. She did not attempt to contact anyone at BOE to explain her absence on March 4.

Respondent mailed appellant the notice of automatic resignation on March 6.

 

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DPA Rule 599.828 provides that an employee who is employed on an intermittent time base may be automatically resigned when she waives three requests to work, unless the employee waived the work due to illness or for another good reason. The employee has the burden of proof and the burden of going forward in seeking reinstatement after automatic resignation.

Appellant admits she waived work on February 28 and March 4. Appellant failed to prove that she had a good reason for not working on March 3. Appellant had a responsibility to keep her employer informed as to her whereabouts when working as an intermittent Office Assistant. She also had a responsibility to remain available for work unless she was ill or had another good reason for not working. Appellant was not ill on the days at issue. She did not make herself available for work at BOE. She did not keep her employer informed of her whereabouts. She did not timely contact her employer to explain her absence on March 3 or to notify respondent that she would not be reporting to work on that day. Appellant waived three requests to work.

Accordingly, the appellant should not be mandatorily reinstated to her prior position as an Office Assistant (PI).

 

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that the appeal for reinstatement after automatic resignation effective February 26, 2003, is denied.

 

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1. All dates are 2003 unless otherwise indicated.​ ‹​​​