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DPA Case Number 98-B-0124 - Reinstatement After Automatic Resignation (3 W)

DPA Case Number 98-B-0124 - Reinstatement After Automatic Resignation (3 W)

Final Non-Precedential Decision Adopted: October 22, 1998
By: K. William Curtis, DPA Chief Counsel

DECISION

This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 11:00 a.m. on October 5, 1998, at Rancho Cucamonga, California.
Appellant was present without representation.
Noreen P. Skelly, Attorney represented the Employment Development Department (EDD), respondent.
Evidence having been received and duly considered, the Hearing Officer makes the following findings of fact and Proposed Decision.

I - CAUSE FOR APPEAL

Respondent notified appellant by letter dated April 14, 1998,1 that he was automatically resigned from State service as of April 7, based upon his waiver of three requests to report to work without good reason. The dates of waiver were April 1, 8 and 9. The parties stipulated appellant had previously waived work without good cause on January 12.
Appellant appealed his automatic resignation on the grounds that EDD did not follow the required procedures including discussing his waivers with him and writing him up prior to automatically resigning him.

II - REASON FOR BEING ABSENT

Appellant testified he was absent from work on April 1, because of car problems. When he drove his wife to work that morning he noticed his bumper was dragging. He called his supervisor before 8:30 a.m. and left a voice mail message that he was going to be late. He called her and spoke with her at approximately 10:30 a.m. He told her he was going to try to fix the car and would be at work in a few hours. He did not report to work; and he did not call back later that day.
Appellant did not remember why he did not report to work on April 8.
Appellant testified he did not report to work on April 9, because his wife borrowed his car and he could not get a ride.

III - REASON FOR NOT OBTAINING LEAVE

Appellant testified that when he spoke to his supervisor at approximately 10:30 a.m. on April 1, he told her he was going to stay home and fix his bumper. She responded "okay." He assumed that she was giving him permissive leave. His supervisor disputed that her response constituted approved leave. She said she was merely acknowledging what he told her. In fact, shortly after his absence she prepared a formal letter notifying him that his absence was a waiver without good cause.
Appellant admitted he did not go to work on April 8, but he could not recall the circumstances of his absence.
Appellant admitted he did not go to work on April 9. He testified he called in before 7:00 a.m. and left a voice mail message. He acknowledged he was not given leave.

IV - READY, ABLE AND WILLING

Appellant credibly testified he is ready, able and willing to return to work. Respondent did not dispute this testimony.

V - APPELLANT'S CLAIM OF PROCEDURAL DEFECTS

Appellant testified that respondent acted inappropriately by not counseling him and providing him with a written warning prior to automatically resigning him. Respondent presented evidence that appellant had been previously counseled regarding his attendance and in January 1998 had been served with a notice of waiver which advised him that "an intermittent employee who waives three requests to report for work may be automatically separated without fault from his intermittent employment."
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE HEARING OFFICER MAKES THE FOLLOWING DETERMINATION OF ISSUES:

Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the Department of Personnel Administration. 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/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/she is ready, able, and willing to return to work.
Section 19996.2 and the Coleman decision are made applicable to permanent intermittent employees by the language of Rule 599.828, which provides as follows:
"In addition to the provisions of Government Code Section 19996.2, an intermittent employee who waives three requests by the employing department to report for work may be automatically separated from the intermittent appointment, provided that no waiver shall be counted if the employee was unable to come to work due to illness or other good reason (i.e., a reason that is acceptable to the appointing power)."
In this case appellant did not have a valid excuse for his failure to report to work on April 1, 8 and 9. He did not have a satisfactory reason for not obtaining leave. Appellant admitted that even though his bumper was dragging on April 1, his car could be driven. He chose to work on the car rather than comply with his commitment to work for respondent that date. He had no excuse at all for his absence on April 8; and he made no apparent attempts to get to work on April 9 other than calling someone for a ride after giving up his car to his wife. Appellant had the burden of proof in these matters and failed to prove a valid excuse for his absences and failure to obtain leave.
Appellant's procedural challenge to respondent's automatically resigning him is not properly before DPA. Pursuant to Coleman, when considering a request for reinstatement after automatic resignation, DPA is not charged with examining whether the appointing power acted properly with regards to the resignation.
For the reasons set forth above, appellant's appeal should be denied.
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective April 7, 1998, is denied.
 
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FOOTNOTES

1. All dates are to 1998 unless otherwise indicated.
  Updated: 5/21/2012
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