DPA Case Number 99-E-0037 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: June 17, 1999

By: K. William Curtis

This matter was heard before Mary C. Bowman, Administrative Law Judge, Department of Personnel Administration (DPA) at 9:00 a.m. on May 26, 1999, at Sacramento, California.

Appellant was present and was represented by Gerri Conway, Administrative Hearing Specialist, Association of California State Supervisors.

Respondent, Department of Corrections (CDC), was represented by Susan Sandoval, Staff Counsel.

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

Appellant was automatically resigned effective March 5, 1999. He filed a request (appeal) for reinstatement after automatic resignation on March 15, 1999. The appeal complies with the procedural requirements of Government Code section 19996.2. The matter was originally scheduled for hearing on April 21, 1999, but was continued at the request of appellant for good cause shown and by agreement of parties.

Respondent notified appellant in writing on or about March 5, 1999, that effective March 25, 1999, he would be considered to have automatically (AWOL) resigned on March 5, 1999, based upon his absence without leave from March 1 through March 5, 1999. Thereafter, appellant filed his request for reinstatement with DPA claiming he had a satisfactory reason for being absent and that he was on approved, long-term military leave from September 20, 1998, to March 23, 1999. Appellant also claimed he is currently ready, able and willing to return to work.

The U. S. Department of the Army ordered appellant to active military duty effective September 20, 1998. The period of duty was “not to exceed 270 days.” Appellant presented respondent with a copy of his orders for active duty; and respondent placed him on approved military leave, pursuant to Government Code sections 19770 through 19786.

Appellant reported for duty at Fort Benning, Georgia on September 20, 1998. He was released from active duty on September 24, 1998, and authorized for government transportation home from Fort Benning to Sacramento.

Appellant reported back to work on or about September 29, 1998. He met with Labor Relations Manager, Office of Labor Relations. The Labor Relations Manager advised him that he could not return to work without presenting documentation of his release from active duty. At that time, appellant’s orders releasing him had not yet been cut.

On October 1, 1998, Labor Relations Manager sent appellant a letter regarding his military release orders. In the letter, Labor Relations Manager stated,

This is to follow up our meeting in which we discussed your request to return to work from military duty. I am in receipt of your military orders in which you were instructed to report to Fort Benning, Georgia on September 20, 1998 with a period of active duty not to exceed 270 days. However, in order for the Labor Relations Branch to accommodate your request to return to work, you must provide this office with your military release orders.”

The Department of the Army cut appellant’s discharge papers on November 13, 1998. Neither appellant nor respondent received a copy of the orders when they were cut. On January 13, 1999, appellant’s immediate supervisor spoke with a Colonel, U.S. Army, Inspector General. He advised the supervisor that appellant had been released from active duty by orders dated November 13, 1998. On January 14, 1999, the Colonel mailed a copy of the orders to the supervisor. Shortly after that date a copy was also mailed to appellant.

On January 22, 1999, Assistant Director, Office of Labor Relations sent a letter to appellant regarding his military leave. The letter advised appellant that the respondent had received a copy of his release orders from the Army. The letter also stated,

“Under Government Code section 19780, you have a mandatory right of return to your former position if you return within six months after termination of military service under your long-term military leave. You were released from active duty on September 24, 1998. Therefore you have until March 23, 1999 to return to your former position. Please contact Jan Sale of this office [number omitted] in order to make arrangements to return to work.”

Government Code section 19780 provides in relevant part,

“...[A] permanent...or exempt employee who begins active duty within 90 calendar days from the effective date of his ...long-term military leave...and who returns to state service within six months after termination of military service under his ...long-term military leave...shall be reinstated to his...former position.”

Relying upon the January 22, 1999, letter and the code section, appellant considered himself on approved leave and protected from being automatically discharged any time prior to March 23, 1999.

On March 5, 1999, Labor Relations Manager sent appellant a Notice of Automatic Resignation advising appellant that he was considered automatically resigned for being absent without approved leave from March 1 through March 5, 1999. Prior to that date, respondent had not formally revoked or modified appellant’s leave status.

Appellant’s supervisor testified that, around the end of January or beginning of February 1999, appellant called her and stated he would return to work March 1, 1999. She stated appellant was automatically resigned because he did not honor that “verbal” commitment. Appellant was not notified of any change in his status prior to the automatic resignation. The supervisor did not confirm a March 1, 1999, return date in writing with appellant.

Appellant admitted he spoke with his supervisor around the end of January 1999, but denied that he told her he would return to work on March 1, 1999. He stated he was ill in March 1999 and would not have made such a commitment. To corroborate his illness he brought a medical excuse from his doctor dated March 22, 1999. The doctor’s note excused him from work from March 1 through March 22, 1999.

The statute clearly provides an employee on long-term military leave with a six-month window commencing with discharge from active duty. The statute gave appellant mandatory reinstatement rights to March 23, 1999.

Appellant did not request additional leave beyond that granted originally by CDC. He relied upon the letter of January 22, 1999, which advised him he had until March 23, 1999, to reinstate, pursuant to section 19780. Appellant only became aware of his unapproved absence after March 5, 1999.

As stated above, respondent did not revoke appellant’s leave. The last official correspondence to appellant, which was produced at hearing, was the January 22 letter, which clearly advised appellant that he could exercise his mandatory reinstatement rights to

March 23, 1999.

Given the circumstances, it would not be unreasonable for appellant to conclude he did not need to seek additional leave or produce medical substantiation for absence prior to

March 23, 1999.

Appellant testified he was ill from January through March 1999. He presented a medical slip from his physician stating that he was excused from work from March 1 through March 22, 1999 due to complications of illness. He testified that he is currently ready, able and willing to return to work. Respondent did not contest appellant’s current ability to work.

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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 had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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. He must prove, by a preponderance of the evidence, that he had a valid excuse for his absence and for his failure to obtain leave. He must also prove he is currently able to return to work.

In this case appellant was on approved, long-term military leave commencing on or about September 20, 1998, consistent with Government Code section 19780. Appellant had mandatory reinstatement rights, by statute, extending to March 23, 1999. Appellant spoke with his supervisor in late-January 1999. There was apparently some verbal miscommunication between the two since she believed he confirmed a March 1, 1999, return to work date and he did not. After the conversation, the supervisor took no formal action to confirm the date of return in writing. The weight of the evidence proves that appellant believed he was not required to report to work until March 23, 1999, and that he was on approved military leave between March 1 through March 5, 1999. Therefore, it is found that appellant had a satisfactory explanation for not reporting to work on March 1 through March 5, 1999, and a satisfactory explanation for not requesting additional or extended leave during that period of time.

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

Accordingly, appellant should be reinstated, without back pay, to his position of Office Assistant (Typing) with CDC. Respondent should effectuate said reinstatement no later than one week after receipt of the decision.

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that the appeal for reinstatement after automatic resignation from the position of Office Assistant (Typing) with CDC effective March 5, 1999, is granted.