Final Non-Precedential Decision Adopted: July 7, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on June 16, 2005, at Riverside, California.

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

Jeanlaurie Ainsworth, Senior Staff Counsel, represented the Department of Social Services (DSS), respondent.

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

Respondent automatically resigned appellant effective May 3, 2005, for being absent without approved leave from April 18 through April 22, 2005. SEIU filed a request (appeal) on appellant’s behalf for reinstatement after automatic resignation on April 27, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleged she had a valid reason for being absent because she needed to remain in the Philippines to attend to personal and legal issues. She alleged she had a valid reason for not obtaining leave because she believed she had been granted time off without pay. She also contended she was ready, able and willing to return to work.

Appellant testified that she was absent from April 18 through April 22 because she needed to remain in the Philippines to attend a hearing and take other actions to resolve a dispute involving rental property. She testified the tenant had threatened her nephew’s life and she feared he might be killed or otherwise harmed.

On January 27 appellant requested vacation from April 4 through April 22. On or about February 2, her immediate supervisor denied the request for operational reasons. An employee with more seniority had already been granted leave on these dates. The supervisor asked appellant if she would consider taking three weeks vacation in March, June, or July. Appellant refused these months. She had already purchased her airline tickets for her trip based on approval of her vacation from April 4 through April 22. Appellant also informed the supervisor she wanted to attend her granddaughter’s graduation in the Philippines at some point during this period. The supervisor referred appellant to her supervisor.

On February 4, appellant met with the supervisor’s supervisor to discuss her vacation. Appellant told supervisor’s supervisor she had personal reasons for needing three weeks of vacation. The supervisor’s supervisor denied appellant’s request for three weeks of vacation based on operational needs. The supervisor’s supervisor told appellant she would approve two weeks. Appellant told the supervisor’s supervisor she had already purchased her airline tickets. The supervisor’s supervisor advised appellant to see if she could change her tickets.

On February 7, appellant informed the supervisor’s supervisor it would cost her $300 to change her tickets.

On February 17, appellant’s union representative asked the supervisor’s supervisor why she was going to cause appellant to lose money on her airline tickets. The supervisor’s supervisor explained she could not allow two employees to be on vacation at the same time. The union representative did not inform the supervisor’s supervisor appellant had any business or personal necessity that required a three-week vacation in April.

In early March, appellant again approached the supervisor’s supervisor for approval of a third week of vacation in April. The supervisor’s supervisor reiterated she would only approve two weeks of vacation in April.

Appellant and the supervisor’s supervisor discussed appellant’s request for a third week of vacation in April still again on March 25. The supervisor’s supervisor reiterated she would only approve two weeks of vacation. The supervisor’s supervisor told appellant she needed to complete an Absence Request for her two week vacation. The supervisor’s supervisor again suggested appellant look into changing her airline tickets. On March 30, appellant submitted and The supervisor’s supervisor approved appellant’s request for two weeks of vacation for April 4 through April 15.

Appellant presented no documentation regarding the property dispute hearing she alleged she needed to attend in the Philippines during the time she was absent without leave. Prior to the hearing, she did not tell either her supervisor or her supervisor’s supervisor she had legal business she needed to resolve or that she feared for her nephew’s life. The only personal business she mentioned was her granddaughter’s graduation and the fact she had already purchased her tickets and would be charged $300 to change them.

Appellant argued she believed she had been granted unpaid leave.

It was uncontested the supervisor’s supervisor asked appellant to call her at some point during her two week vacation to let her know if appellant was going to return to work. The supervisor’s supervisor testified she asked appellant to call her because she knew appellant had not changed her airline tickets when she approved appellant’s two week leave.

Appellant did call the supervisor’s supervisor on April 15. Appellant told the supervisor’s supervisor she could not return to work at the end of her approved two week vacation. The supervisor’s supervisor told appellant her additional time off was “unapproved leave.” Appellant believed this meant she would not be paid. She testified she did not know she would be automatically resigned.

Appellant’s belief that the supervisor’s supervisor approved her third week of vacation without pay on April 15 is unreasonable. Appellant’s request to be absent had been denied on at least four different occasions. Appellant had been informed she needed to be at work because respondent needed appellant’s services at work. Whether or not appellant was to be paid for the time was not relevant to the fact she had been denied leave based on operational need. There was no evidence appellant was told that operational needs no longer required her to be at work. Appellant did not have a valid reason for not obtaining leave.

It was uncontested appellant 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 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 being absent and a valid reason for not obtaining leave. The evidence shows appellant was adamant about being absent from work from April 4 through April 22. She purchased her airline tickets for her trip before she received approval for these dates. She refused to change her airline reservations because it would cost her $300. She left on April 4 knowing she did not have return tickets which would have enabled her to return to work after two weeks. Appellant did not inform anyone of her alleged legal proceedings or concern about threats to her nephew before she was notified she was absent without leave. Under the circumstances, appellant’s testimony regarding her need to be absent is unreliable.

In addition, her belief that she was granted leave without pay on April 15 is unreasonable given the fact her leave had been denied on four separate occasions because her services were needed at work.

It was uncontested she is ready, able and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Program Technician II effective May 3, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.