DPA Case Number 98-S-0094 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: September 11, 1998

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 11:30 a.m. on August 31, 1998, at Rancho Cucamonga, California.

Appellant was present and was represented by George Swift, Business Representative, International Union of Operating Engineers (IUOE).

Jeanell Bradley, Personnel Analyst, represented the Department of Transportation (Caltrans), respondent.

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

Appellant automatically resigned effective April 30, 1998, and filed a request (appeal) for reinstatement after automatic resignation on May 30, 1998. The appeal complies with Government Code section 19996.2.

Respondent notified appellant in writing on or about May 12, 1998, that effective May 19, 1998, he would be considered to have automatically (AWOL) resigned on April 30, 1998, based upon his unapproved absence from May 4 to 12, 1998. Thereafter, appellant filed his request for reinstatement with DPA claiming he had a reasonable explanation for his absence and his failure to obtain leave for that period of time.

Appellant was arrested and jailed for spousal abuse on May 3, 1998. He pled guilty. On May 19, 1998, appellant was released.

Appellant did not call in and did not report to work on Monday, May 4, and Tuesday, May 5, 1998. At approximately 2:00 p.m. on May 5, 1998, appellant called his supervisor and advised him he was in jail. He asked permission to use emergency vacation leave for the period of his incarceration. Respondent denied his request because his absence was due to incarceration. Respondent’s decision to deny the leave request was consistent with the Caltrans Supervisor’s Guide to Employee Conduct and Discipline (issue date 12/84), which provides at page 44, “As a supervisor, you may be faced with a situation of an employee who has been incarcerated. Regardless of the circumstances surrounding the incarceration, you should view the action as abandonment of the job if you have knowledge of or have been informed (either by the employee or by a representative of the employee) of the incident.”

The decision is also consistent with a Contract Interpretation memorandum which Caltrans Labor Relations Office issued to its district and headquarters Labor Relations Officers on April 4, 1994. That memorandum addressed the issue of whether an employee may be allowed to use leave credits for incarceration and stated in relevant part:

“If the supervisor determines that the employee will be incarcerated for an extended period of time, the supervisor, on the fifth day of unapproved absence shall invoke the AWOL statute.”

Appellant testified he is currently ready, able and willing to return to work.

Appellant claimed that Caltrans and Unit 12 had an informal agreement dating to mid-1994, whereby represented employees would be allowed to use emergency vacation leave for periods of incarceration. In support of this claim, a memorandum authored by a former Chief, Human Resources Management, entitled “Leave Control Letter” was entered onto the record. The memorandum dated June 1, 1994, did not identify on its face any recipient (i.e. the “To” line was left blank). The memorandum referred to “personnel policies and the Labor/Management Memorandum of Understanding (MOU)1 and its provisions regarding medical substantiation for sick leave usage.

The memorandum stated in relevant part:

“Leave control letters are a tool to convey the rules and regulations to an employee regarding sick leave. It is inappropriate to place restrictions regarding vacation leave, personal leave, annual leave or CTO in these memos. Employees have the right to these types of leaves subject to the operational needs of the work unit.”

Also placed in evidence in support of this claim was the testimony of Rick Funderburg, a retired business representative for IUOE. He testified he was present during negotiations regarding use of emergency vacation leave for incarceration in mid-1994 and that an informal policy was developed between Caltrans and Unit 12 at that time which allowed represented employees to use emergency vacation leave for incarceration. He relied upon the italicized portion of the June 1, 1994 memorandum as support.

The memorandum did not support appellant’s claim since it related to sick leave control letters and was not of a nature to bind Caltrans or the State to a policy regarding use of emergency vacation leave. The testimony of Funderburg was inconsistent with the Supervisor’s Guide and the prior Contract Interpretation memorandum which stated on its face that it was applicable to all bargaining units and was distributed to all Caltrans Labor Relations Officers.

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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. DPA is not charged with examining whether the appointing power acted properly with regard to the actual termination. Further, appellant has the burden of proof and must prove by a preponderance of the evidence that he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.

In this case appellant did not have an acceptable reason for being absent. Appellant was absent because he was incarcerated. Appellant’s representative argued appellant was not responsible for his circumstances. However, the evidence demonstrated appellant was jailed because of spousal abuse to which he pled guilty. Accordingly, it is found appellant was indeed responsible for the circumstances which led him to be absent from work and that the reason was not acceptable. Also in this case, appellant did not have a satisfactory reason for not obtaining leave. Appellant did not call until late on the second day of his absence. When he did call, he asked for emergency vacation leave. Respondent denied emergency vacation leave consistent with its authority set forth at Government code section 19857, DPA Rule 599.736 and the applicable provisions of the MOU at Article 9, section 9.1(f) and (g).2

Appellant is currently ready, able and willing to return to work.

Based upon the above, it is concluded appellant should not be manditorily reinstated to the position of Caltrans Landscape Maintenance Leadworker because he did not have a satisfactory explanation as to the cause of his absence and failure to obtain leave.

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that the appeal for reinstatement after automatic resignation effective April 30, 1998, is denied.

 

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FOOTNOTES

1. Agreement between the State of California and the International Union of Operating Engineers Bargaining Unit 12 Crafts and Maintenance Division (effective July 1, 1992).

2. Subsection 9.1(f) provides “the time when vacation shall be taken by the employee shall be as approved by the department head or designee.” Subsection 9.1(g) provides, “Except where operational needs require otherwise, employees shall be entitled to use their vacation credits at the time of their choice. Requests for use of vacation credits shall not be unreasonably denied. Where two or more employees request the same vacation time and the department head or designee cannot grant the vacation time to all employees requesting it, vacation requests shall be granted in order of seniority (length of service within the department).”