DPA Case Number 04-D-0093 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 14, 2004

By: William A. Avritt, Chief Deputy Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on October 12, 2004, at Sacramento, California.

Appellant was present and was represented by Jason Conwell, Labor Relations Representative, Service Employees International Union (SEIU).

Edmund K. Brehl, Labor Relations Counsel, DPA, represented the Public Employees Retirement System (PERS), respondent.

Based on appellant’s written appeal and prior to the taking of evidence, the ALJ informed the parties that medical evidence from appellant’s treating physician(s) would be required in order to determine if appellant was ready, able, and willing to return to work. Another day of hearing was to be scheduled to allow such testimony as well as testimony from one of respondent’s witnesses who was unable to attend on the current day of hearing.

Appellant called herself as her only witness. After appellant’s testimony, appellant rested her case-in-chief with the understanding she would be allowed to call her physician(s) or other medical personnel on a subsequent day of hearing. Respondent then made a motion to dismiss appellant’s appeal based on her failure to prove she had a valid reason for being absent and a valid reason for not obtaining leave. The ALJ granted respondent’s motion to dismiss based on appellant’s failure to prove she had a valid reason for not obtaining leave. The ALJ denied respondent’s motion to dismiss based on appellant’s failure to prove she had a valid reason for being absent. The ALJ informed the parties that this proposed decision would be forwarded to DPA’s Director or his designee for final order.

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

I - JURISDICTION

Respondent automatically resigned appellant effective August 13, 2004, for being absent without approved leave from July 28, 2004 through August 3, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on August 3, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contended she had a valid reason for being absent, a valid reason for not obtaining leave, and that she is ready, able, and willing to return to work.

Appellant testified she was ill and did not go to work on July 26. When she came in on July 27, she chatted with her supervisor about various non-work issues as well as about the prior day’s absence. At the end of the conversation, the supervisor told appellant her absence the previous day was being reported as “late dock.” This upset appellant. She left work.

It was uncontested that appellant did not report to work on July 28, 29, 30 and August 2 and 3. Appellant testified she did not come to work on July 28 because she was afraid of conflict and confrontation with her supervisor. She testified she was afraid of “dealing with the issues.” On July 28, she told a PERS personnel unit employee that she was not coming back to work until August 9 after she met with her attorney.

Appellant testified she did not report to work on July 29 because she was “afraid” and she “didn’t know what to do.”

Appellant testified that although she went to the PERS building on July 30 to pick up her check, she did not report to work. She testified she checked herself into a mental hospital and called her health care provider on this day.

Appellant testified she did not report to work on August 2 because she didn’t want to go to work until she had heard from the Division Chief. She had left messages for him, but he had not returned her call. She wanted assurances that she could take complaints about her work environment to him before she returned to work.

Appellant testified she did not report to work on August 3 because at some time during that day she went to Heritage Oaks Hospital. She testified she did not follow the program that was prescribed for her.

The ALJ makes no finding regarding the validity of appellant’s reasons for being absent.

Appellant received a Letter of Instruction on March 26 regarding her failure to comply with proper call-in procedures. In the Letter of Instruction, she was reminded who she was to contact by 8:30 a.m. if she had an unexpected illness. Appellant admitted she discussed these procedures with her supervisor several times.

Appellant also testified she was aware of alternate call-in procedures which were given to other employees in June. These procedures allowed the other employees to leave voicemail messages for the supervisor or another designee within fifteen (15) minutes of their start time if they were going to be late or within one-half hour of their start time if they were going to be absent. Under the alternate procedures, the absent employee was also required to leave a message on a “unit” telephone. There was no evidence that appellant’s call-in procedures were adjusted after the March 26 Letter of Instruction.

Appellant admitted she did not attempt to follow either set of procedures above. She testified she made no attempt to contact her supervisor or the other two designees or the unit telephone to report she was going to be absent. She testified she didn’t want to deal with her supervisor or the other designee any more because she didn’t know who to trust.

Appellant testified she was ready, able, and willing to return to work. A finding in this area is unnecessary because appellant failed to prove she had a valid reason for not obtaining leave.

 

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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.

Appellant failed to prove she had a valid reason for not obtaining leave. Although she initially testified she did not know what procedures she was required to follow in order to obtain leave, she ultimately changed her testimony when confronted with documentary evidence that she admitted she signed. She also testified she was aware of alternate procedures that were given to other employees. She freely admitted she did not attempt to follow either set of requirements.

It was apparent from appellant’s testimony and her written request for reinstatement that there was dissention between appellant and her supervisor. Appellant contacted a lawyer and advised one of respondent’s personnel representatives that she did not intend to return to work until after she consulted with her attorney on August 9. Appellant was not too fearful, afraid, or upset to come into work at her convenience to pick up her paycheck on one of the days she should have contacted her supervisor or other designated representative to report her absence. She was not too afraid or upset to contact individuals of her choosing who she believed would be more sympathetic to her and her situation even though they were not designated personnel to be contacted to obtain leave. She wanted to report her absences and return to work on her own terms and conditions.

Appellant knew what procedure she had to follow in order to obtain leave. She made a conscious, informed decision to bypass these procedures. Appellant did not have a valid reason for not obtaining leave.

It is unnecessary to determine if appellant had a valid reason for being absent or if she is ready, able, and willing to return to work.

Respondent’s motion to dismiss appellant’s appeal based on her failure to prove by a preponderance of the evidence that she had a valid reason for being absent is denied.

Respondent’s motion to dismiss appellant’s appeal based on her failure to prove by a preponderance of the evidence that she had a valid reason for not obtaining leave is granted.

 

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that the appeal for reinstatement after automatic resignation effective August 13, 2004, is denied.

 

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1. All dates are 2004 unless otherwise indicated.