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DPA Case Number 05-U-0095 - Reinstatement After Automatic Resignation

DPA Case Number 05-U-0095 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: January 6, 2006
By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on December 12, 2005, at San Luis Obispo, California. The purpose of the hearing was to determine whether DPA had jurisdiction over appellant’s late filed appeal, and, if DPA had jurisdiction, to determine whether appellant should be reinstated pursuant to Government Code section 19996.2.
Appellant was present at the hearing and was represented by Doug Godinho, Labor Relations Representative, Service Employees International Union (SEIU).
Herb Connor, Employee Relations Officer, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

On July 18, 2005 Respondent served appellant with notice he was being automatically resigned effective June 15, 2005, for being absent without approved leave from June 16, 2005 through July 18, 2005. The notice was sent by certified mail to Appellant’s address of record.
California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation only if the employee files a request (appeal) for reinstatement within fifteen (15) days after service of the Notice of Automatic Resignation, unless the employee was not served with written notice. Appellant had until close of business August 7, 2005 to file his appeal.1
Appellant filed an appeal for reinstatement after automatic resignation on August 17, 2005.2 The appeal was untimely because it was filed more than 15 days after service of the notice.
DPA Rule 599.904 states that upon good cause being shown, DPA may allow an appeal to be filed within thirty (30) days after the end of the period in which the appeal should have been filed. Appellant’s appeal was filed within the requisite 30 days. Appellant claimed good cause for late filing. Therefore, DPA scheduled a hearing to resolve the facts at issue.

II - CAUSE FOR APPEAL

Appellant claimed good cause for late filing. He argued he did not receive the Notice of Automatic Resignation until August 8 when he attempted to return to work.
He argued he had a valid reason for being absent because he was required to remain in the Philippines to obtain a visa which would permit him to bring his daughter back with him to the United States. He further argued he had a valid reason for not obtaining leave because he was unable to comply with the exact procedure required for obtaining leave and he left voicemail messages for his supervisor. Finally, he claimed he was ready, able, and willing to return to work.

III - BACKGROUND FACTS

Appellant was on approved vacation leave from May 16 through June 15. He went to the Philippines. He had a daughter who lived in the Philippines. She wanted to return to the United States with the appellant. In order to obtain a visa for his daughter to come to the United States, appellant had to complete various paperwork and participate in an interview at the United States Embassy in Manila. This paperwork and interview required appellant to remain in the Philippines past his June 15 approved vacation time.
Appellant left four messages for his supervisor around 5:00 p.m. on Saturday, June 11. He left basically the same message four times, one message immediately following the other. The messages informed the supervisor that appellant was still in the Philippines and his return was delayed because he was trying to bring his daughter to the United States. Appellant informed his supervisor he would be returning to the United States on July 4 and that he would return to work on July 5. Appellant borrowed his sister-in-law’s cell phone to make the calls to his supervisor. Appellant testified he left a return telephone number where he could be reached. The supervisor testified appellant did not provide a telephone number or any address at which he could be contacted.
Appellant did not return to work on July 5. Instead, he left his supervisor a voicemail message saying he was still in the Philippines. He reported that his interview at the Embassy was scheduled for July 13 and that he would require an additional ten days after that to complete his daughter’s visa application process before he could return to work. Appellant testified he again left a telephone number where he could be reached. The supervisor again testified that appellant left no telephone number or address.
Appellant returned to the United States on or about August 4. He testified he attempted to fax his supervisor a memorandum informing her he would return to work on August 8. The supervisor testified she received no messages or faxes from appellant after July 5. The supervisor testified she called appellant’s home telephone number on July 5, but she got no answer. She was unable to leave a message because appellant did not have an answering machine. On or about July 8, respondent attempted to serve appellant with a letter warning him that if he failed to return to work by July 15 or gain his supervisor’s approval for his extended absence, he would be automatically resigned. The warning letter was sent certified mail but was returned unclaimed. When appellant did not return to work and did not gain his supervisor’s approval for his extended absence, respondent sent the Notice of Automatic Resignation to appellant’s address of record on July 18, 2005. This notice was also returned unclaimed.
Appellant attempted to return to work on August 8. At that time he was informed he was automatically resigned and he was personally served with the Notice of Automatic Resignation. Appellant requested reinstatement from DPA on August 17.

IV - REASON FOR LATE FILING

Appellant claimed good cause for late filing because he did not receive the Notice of Automatic Resignation until August 8. Although the notice was lawfully served to his last known address on or about July 18, he was not at home. He was not at home because he remained in the Philippines to participate in an interview required by the United States Embassy before it would grant a visa for appellant’s daughter. Appellant had good cause for late filing. DPA has jurisdiction over this matter pursuant to DPA Rule 599.904.

V - REASON FOR BEING ABSENT

Appellant was charged with being absent without leave from work from June 16 through July 18. During this period he was in the Philippines making arrangements to bring his daughter to live with him in the United States. The custody care interview required by the United States Embassy was not held until July 13. After the interview, the visa application process required appellant’s additional attention. Appellant had a valid reason for being absent from June 16 through July 18.

VI - REASON FOR NOT OBTAINING LEAVE

On or about September 18, 2003, CMC issued a written procedure detailing the method to be used when registered nurses reported an unapproved or unscheduled absence. The policy required the registered nurse to speak directly to a Supervising Registered Nurse (SRN) and specifically stated that a voice mail message was unacceptable. The policy required the absent employee to speak with the SRN who was “on grounds” or “on call.” There is a SRN on grounds or on call at all times. This assignment rotated. A schedule of the SRN who was on grounds or on call was regularly updated and posted at CMC’s Hospital and in the Emergency Room. There are hospital personnel physically on duty at the hospital 24 hours a day, seven days a week.
Appellant admitted he knew he was required to speak directly with a SRN to request otherwise unscheduled leave or to report his absence. He argued he had a valid reason for not obtaining leave because he was unable to get in touch with anyone at CMC who could provide him with either the name and telephone number of the SRN on duty or who could contact the SRN and ask that the SRN call appellant back so that he could request additional leave. He argued he did leave a telephone number on his messages to Humphreys where he could have been contacted if necessary.
Appellant’s argument that he was unable to contact anyone at CMC in order to personally speak with the SRN on duty is without merit. He testified that when he called the main telephone number for CMC, he was transferred “somewhere in medical.” He testified he didn’t remember the telephone number of the hospital and could only recall his supervisor’s telephone number and her fax number. Appellant could not remember the days he called, or exactly how many times he attempted to call. It is simply unbelievable that through due diligence over the course of the 33 days he was absent without leave, appellant could not have at least called CMC’s main number and asked the telephone operator to be connected to either CMC’s Emergency Room or Hospital Office and that someone in those areas could not have assisted him in connecting with the SRN on duty. Appellant’s Saturday messages to his supervisor did not indicate he was calling her because he could not contact the appropriate SRN. It is incredible that appellant would not have known that no one, including his supervisor, worked on Saturday in CMC’s Infection Control Division unit. Appellant’s Tuesday, July 5 call to his supervisor also resulted in him leaving a message rather than him calling her again to speak with her personally as directed.
Appellant’s testimony that he left a telephone number where he could be reached is also rejected. All the witnesses who listened to the voice mail messages appellant left for his supervisor testified that no telephone number was provided. In addition, appellant testified that he had to rely on the availability of a borrowed cell phone to place his calls to the institution. This gives additional credence to the likelihood that appellant did not provide a telephone number where he could reliably receive and return telephone calls.
Appellant failed to prove he had a valid reason for not obtaining leave.

VII - READY, ABLE AND WILLING

It was undisputed appellant was ready, able, and willing to return to work.
  Updated: 5/9/2012
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