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DPA Case Number 04-M-0134 - Reinstatement After Automatic Resignation

DPA Case Number 04-M-0134 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: March 28, 2005
By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on March 23, 2005, at Sacramento, California.
Appellant, was present and was represented by Harry J. Gibbons, Attorney, California State Employees Association (CSEA).
Kay Krumenacker, Senior Staff Counsel, represented the Department of Motor Vehicles (DMV), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

On November 2, 2004, respondent notified appellant he was being automatically resigned effective November 15, 2004, for being absent without approved leave from October 18, 2004 through November 2, 2004. At hearing, respondent modified the dates appellant was charged with being absent without leave to October 18 through October 22, 2004.1
CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on November 15, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Appellant alleged he had a valid reason for being absent; a valid reason for not obtaining leave; and, that he was ready, able, and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant testified he was absent from work on October 18 through October 22 because he was attacked by his brother. Appellant lives with his parents in a multi-story dwelling. His brother lives in the lower part of the dwelling. Appellant testified that sometime during the weekend prior to October 18, his brother chased him with a knife, kicked his door in, and threw a knife at him. No one witnessed the incident. Appellant did not call the police. He testified this type of incident had happened before and it was his belief that if he reported the incident to the police without having a corroborating witness, the police might take him to jail because his brother would lie.
Appellant testified he was not physically harmed during the incident, but he was “stressed out.” He testified he could not sleep or concentrate. He testified he knew harm was going to be done to him.
Appellant testified he had been previously given medication for “physical and mental pain” and he took this medication to alleviate his stress. Appellant testified he called a medical clinic and they advised him to take this medication.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant testified he tried to obtain leave. He knew he was expected to call and speak with a manager if he was not going to report to work. Appellant testified his brother removed the telephone on some of the days between October 18 and October 22.
Appellant testified attempted to contact respondent on three different occasions on Thursday, October 21 and Friday, October 22. On one of these dates, he testified he talked to an [name omitted] who he knew only as a “manager.” On the two other occasions he tried to contact respondent, he testified the line was “busy.”
The Pleasanton Field Office Manager, testified that respondent was expected to report his absence to a supervisor at the Oakland/Claremont Office where he regularly reported to work. She testified that when appellant did not appear for work at the Oakland/Claremont Office and did not call, that office notified her because appellant was paid through the Pleasanton Office. When the Pleasanton Field Office Manager learned appellant had not been at work, she surveyed all the managers at the Pleasanton Office to see if anyone had heard from the appellant. One of the managers she questioned was [name omitted]. The Pleasanton Field Office Manager could find no manager at the Pleasanton Office who reported receiving a call from appellant. The Pleasanton Field Office Manager also testified there is no manager at the Oakland/Claremont office named [name omitted].

V - READY, ABLE AND WILLING

Appellant testified he was ready, able, and willing to return to work.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

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 valid reason for being absent and a valid reason for not obtaining leave. Although he alleged he was too “stressed out” to come to work, he presented no medical testimony to verify his any incapacity or any witness who could attest to the nature of his circumstances. Although appellant alleged he spoke to [name omitted] to report his absence, he did not present any corroborating testimony. Appellant’s self-serving testimony without corroboration in this case is an inadequate basis on which to find appellant reported his absence.
It was undisputed appellant is ready, able, and willing to return to work.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation from the position of Motor Vehicle Field Representative effective November 15, 2004, is denied.
 
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FOOTNOTES

1. All dates are 2004 unless otherwise indicated.
  Updated: 5/29/2012
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