Final Non-Precedential Decision Adopted: July 22, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 8:45 a.m. on July 13, 2004, at Riverside, California.

Appellant, was present and was represented by Stephen D. Beck, Staff Consultant, Professional Engineers in California Government (PECG).

Deborah Hughes, Associate Personnel Analyst, represented the Department of Transportation (DOT), respondent.

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

Respondent automatically resigned appellant effective February 18, 2003, for being absent without approved leave from February 19, 2003 through February 26, 2003. PECG filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on March 11, 2003. The appeal complies with the procedural requirements of Government Code section 19996.2.

A hearing was originally scheduled May 15, 2003.1 On May 7, appellant requested a continuance for one year because he was incarcerated and would be unavailable to testify on his own behalf. The hearing was rescheduled and subsequently held on July 13, 2004.

Appellant alleged he had a valid reason for being absent because he was incarcerated. He alleged he had a valid reason for not obtaining leave because his supervisor knew he was incarcerated; he did not have access to a telephone; and, his wife called respondent on February 27 to explain his absence. He also alleged he was ready, able, and willing to return to work.

Appellant was absent from work February 19 through February 26 because he was incarcerated for failing to appear at a hearing in which he was charged with a misdemeanor count of involuntary manslaughter. He testified he was “confused” about the date of the hearing.

Appellant was arrested while at work on February 18. He remained in jail for ten days while he waited for a hearing and arranged for bail. Appellant was subsequently convicted and reincarcerated for seven months.

Appellant knew he was required to call when he was going to be absent from work. He contended he was unable to call because he was transferred from jail to jail and he did not have access to a working telephone until Monday, February 24. Appellant testified he called his mother-in-law on that day and asked her to tell his wife to call respondent to explain his absence. Appellant testified he did not personally call because he had been assigned to the Thousand Oaks office for only two weeks before his arrest and he did not remember the telephone number. Appellant’s wife or mother-in-law was not called to testify.

Appellant also contended that his supervisor already knew why he was absent because he had been present at the time of appellant’s arrest. In addition, appellant contended he had vacation time that could have been used and that he knew of other situations where other supervisors had approved vacation leave for other employees who faced emergency situations.

The Supervisor testified that appellant’s wife did leave a message for a different supervisor explaining that appellant would not be at work. The Supervisor received the message on February 27, a day after the notice of automatic resignation was mailed to appellant. The Supervisor also testified that although he was present when appellant was arrested, he did not know that appellant was incarcerated from February 19 through February 26. The Supervisore further testified that he did not view being arrested and subsequently incarcerated as an emergency situation.

It was undisputed that appellant did not request or receive leave for the relevant period.

Appellant testified he was ready, able and willing to return to work.

 

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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 he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Appellant failed to prove he had a satisfactory explanation for being absent from work and for not obtaining approved leave. In this case, appellant engaged in misconduct which resulted in his being arrested, charged, and convicted of a criminal activity. Appellant’s testimony that he failed to appear for his criminal hearing because he was confused about the date or that he forgot the date is unreasonable. This is especially true since he was represented by counsel. Appellant’s initial misconduct, subsequent negligence and failure to obey a court order to appear at hearing, and resultant incarceration does not excuse appellant’s absence.

Also, a State agency has the discretion to determine when vacation leave will be granted consistent with acceptable policies and procedure set forth in any bargaining agreement. Appellant failed to prove he or his representative contacted DOT within the required five-day period. He also failed to prove DOT had a practice of or an obligation to automatically provide leave or allow the use of vacation time when an employee is incarcerated and/or fails to contact respondent for five consecutive days to request leave for any purpose.

Appellant proved he is currently ready, able and willing to return to work.

For the reasons set forth above, it is concluded appellant’s appeal should be denied.

 

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that the appeal for reinstatement after automatic resignation from the position of Transportation Engineer (Civil) effective close of business February 18, 2003, is denied.

 

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1. All dates are 2003 unless otherwise indicated.