DPA Case Number 06-F-0059 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 5, 2006

By: David A. Gilb, Director

A hearing was held on September 11, 2006 in Soledad, California.

Appellant, was present and was represented by John T. Kennedy, Attorney. David Barlow, Staff Counsel, represented the California Department of Corrections and Rehabilitation (CDCR), respondent. The record remained open until September 28, 2006 for receipt of post hearing briefs.

On June 7, 2006, respondent notified appellant by mail that he was being automatically resigned for being absent without leave (AWOL) from May 22 through May 26, 2006 and May 31, 2006 through June 6, 2006. Appellant filed a request (appeal) for reinstatement on June 20, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2 and DPA has jurisdiction over the matter.

Appellant argued he should be reinstated because he had a valid reason for being absent; he had a valid reason for not obtaining leave; and, he is ready, able, and willing to return to work.

He contended he was absent because he was on an involuntary paid leave of absence, Administrative Time Off (ATO) and he was not told the involuntary leave of absence had been rescinded and he could and should come to work. He argued he did not request leave because he believed he was already on leave. He further argued he was at all times and is currently ready, able, and willing to return to work.

Respondent argued appellant was absent without leave because he did not follow instructions and call the designated supervisor on all days he was on ATO. It contended appellant did not have a valid reason for not obtaining leave because he simply refused to call his supervisor to ask for leave. It further posited appellant was not ready, able, and willing to return to work because he demonstrated he was unable to adapt to even small changes in the workplace and if he couldn’t follow instructions to call his supervisor each day, he was incapable of performing his duties of Chief Medical Officer.

The issues to be decided in this case are:

1. Did appellant have a valid reason for being absent on May 22 through May 26 and May 31 through June 6?

2. Did Appellant have a valid reason for not obtaining leave on May 22 through May 26 and May 31 through June 6?

3. Is appellant ready, able, and willing to return to work?

1. Appellant began working for the State of California and for what was then the California Department of Corrections on October 19, 1992.2

2. At the time of his automatic resignation, appellant was the Chief Medical Officer (CMO) at the California Training Facility (CTF) located in Soledad, California.

3. Appellant was placed on a paid leave of absence, Administrative Time Off (ATO), on March 23 pending an investigation.

4. Appellant was notified of his ATO status by memorandum. The memorandum stated in relevant part:

“During the leave period, you are relieved of all duties, rights and power arising out of your employment. You are directed to cooperate with the Department in the investigation of these charges and to answer all questions asked of you by the Department regarding these charges.

You are an employee of the Department and shall be available during the normal business hours of the Department, i.e., Monday through Friday, 0800-1200 hours and 1300-1700 hours. Your lunch hour shall be from 1200 to 1300 hours. Any state holidays observed during the work week shall be accepted.

You are expected to contact my office each day at (661) 863-6700, extension 225, during normal business hours as identified above.”

The memorandum was signed by Regional Administrator-Central (A), Health Care Administrative Operations Branch, Division of Correctional Health Care Services.

The telephone number referenced in the memorandum was the number for the regional office.

5. The Regional Administrator was appellant’s immediate supervisor until May 22.

6. Between March 23 and May 19, appellant called the Regional Administrator each day at (916) 296-5343. This was The Regional Administrator’s Blackberry number. Appellant called the Blackberry number because he initially had problems getting through on the Regional Office number.

7. The Regional Administrator notified appellant by e-mail on May 19 that [name omitted] would be appellant’s new contact. The Regional Administrator instructed appellant as follows:

“Please continue to call into the [number omitted] number as you have been doing, the phone (Blackberry) has not been switched over to his email account yet, but hopefully by Monday this will occur. He can also be reached at the Central Region office.”

8. Appellant tried to contact [name omitted] at the Blackberry number on May 22. He got a message saying something to the effect that the call “failed to connect.”

9. Appellant worked on May 22 when he traveled from Los Angeles to CTF and participated in an investigatory interview.

10. Appellant worked on May 23 when he gathered documents requested by the investigator, corresponded with her via e-mail, and faxed the requested documents.

11. Appellant attempted to reach [name omitted] at the Blackberry number on May 23, 24, 25, 26 and 29. Each time he was notified the call did not go through.

12. Appellant did not attempt to reach [name omitted] at the Regional Office number until May 30.

13. On May 30, appellant called the regional office and talked to a secretary. [Name omitted] was unavailable to take his call. Appellant reported to the secretary that he had been attempting to call the Blackberry number, but had been unsuccessful making a connection. The secretary informed appellant the Blackberry number was operational.

14. Appellant did not call [name omitted] at any number from May 31 through June 6.

15. Appellant worked on June 6 when he communicated with the Investigator about documents he was ordered to provide and when he began gathering the requested documents.

16. At some time shortly after June 6, appellant contacted [name omitted]. [Name omitted] told him a document was sent to him and he should contact the ERO.

17. The document sent to appellant was a June 7 letter advising appellant he was considered absent without leave and he was being automatically resigned.

18. Prior to January 2006, respondent’s Departmental Operating Procedures Manual (DOM) required an employee in danger of being automatically resigned to be sent a warning letter on or about the third day of an unauthorized leave.

19. The DOM was revised in January 2006. The past requirement that an employee receive a warning letter prior to being automatically resigned was deleted from the DOM.

20. The revised DOM was distributed to CMO’s and other management personnel via e-mail on or about January 2006.

1. The appellant bears the burden of proof and the standard of proof is the preponderance of the evidence. (Aguila v. Atlantic Richfield (2001) 25 Cal. 4th 826.)

2. Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement:

19996.2. (a) Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.

A permanent or probationary employee may within 90 days of the effective date of such separation, file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing. Reinstatement may be granted only if the employee makes a satisfactory explanation to the department as to the cause of his or her absence and his or her failure to obtain leave therefore, 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.

Appellant met his burden of proof.

He had a valid reason for being absent from his CMO duties from May 22 to May 26 and from May 31 to June 6. Appellant was on a paid leave of absence during this period. He was not permitted to perform his usual and customary duties or report to his workplace. Respondent placed appellant on a paid leave of absence for its convenience during an investigation. It never revoked the paid leave of absence. Furthermore, appellant performed work-related tasks regarding the investigation on May 22, 23 and June 6.

Appellant had a valid reason for not obtaining leave. He reasonably and correctly believed he was already ordered not to report to CTF to perform his normal duties and thus was “on leave” from his regular assignment. During the ATO period, appellant remained ready to work. There was no evidence appellant was unavailable during his assigned work hours. Whenever respondent’s representative (i.e. the investigator or the Regional Administrator) attempted to contact appellant or ordered appellant to supply any information, appellant was available and responsive.

Although appellant did not follow the order to contact the designated representative on every day of his ATO, this does not make him absent without leave on five consecutive days and subject to automatic resignation pursuant to Government Code section 19996.2. Such conduct is more appropriately addressed in the disciplinary setting of the State Personnel Board (SPB). Respondent cannot place an employee on an involuntary leave of absence, pay him for the leave, strip him of his regular duties, and then automatically resign him because he does not perform his duties. Failure to follow orders and being absent without leave pursuant to Government Code section 19996.2 are different indiscretions that require different levels of due process and different levels of response.

Appellant is ready, able, and willing to return to work. Respondent’s argument that appellant is unable or unwilling to follow directions may also be more adequately addressed before the SPB.

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

Order

Appellant’s appeal of his automatic resignation effective June 7, 2006 is granted. Appellant is to be reinstated to his position of CMO without back pay. This order has no effect on respondent’s ability to place appellant on future ATO status or any effect on any other action the respondent may deem necessary in conjunction with any investigation or appellant’s ability to follow orders or perform the essential functions of his job.

 

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1. All dates are 2006 unless otherwise indicated.

2. The California Department of Corrections became the California Department of Corrections and Rehabilitation in July 2005.