print logo
Main Content Anchor

DPA Case Number 99-P-0122 - Reinstatement After Automatic Resignation

DPA Case Number 99-P-0122 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: March 15, 2000
By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:30 a.m. on February 16, 2000, at Riverside, California.
Appellant was present and was represented by Maria Del Carmen Perez, Labor Relations Representative, California State Employees Association (CSEA).
Danny J. Dunbar, Labor Relations Analyst, represented the Department of Mental Health (DMH), Metropolitan State Hospital, respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

Respondent automatically resigned appellant beginning of business November 16, 1999, based upon his absence without approved leave from November 16 through 22, 1999. On December 20, 1999, appellant filed a request (appeal) for reinstatement after automatic resignation. The appeal complies with the procedural requirements of Government Code section 19996.2.

II - CAUSE FOR APPEAL

Respondent served appellant with a written Notice of Automatic Resignation on or about November 22, 1999. Appellant filed a form appeal. At the hearing he claimed he had a satisfactory explanation for being absent without approved leave and that he is currently ready, able and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant was incarcerated from November 16, 1999, to December 2, 1999. He was charged with assault with a deadly weapon. He was released on bail and entered into a plea bargain whereby he was placed on three years probation, required to perform 72 hours of community service, and fined $135.00.

IV - REASON FOR NOT OBTAINING LEAVE

Appellant requested, but was denied, the use of approved leave by his supervisor. The supervisor advised appellant that respondent’s Personnel Office directed him not to approve leave for employees who are in jail. Respondent does not consider incarceration for criminal misconduct an acceptable excuse for absence from work.

V - READY, ABLE AND WILLING

Appellant testified he is currently ready, able and willing to return to work. Respondent does not dispute that appellant is ready, able and willing to return to work.
 
* * * * *

PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ 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 DPA. 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 regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence the 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.
Appellant failed to prove he had a satisfactory explanation for being absent from work and for not obtaining approved leave. In this case, appellant engaged in misconduct which resulted in his being arrested, charged and convicted of criminal activity. Such activity and subsequent incarceration does not excuse his absence. Also, a State agency has discretion to determine when vacation leave will be granted consistent with acceptable policies and procedures set forth in any bargaining agreement.
Appellant proved he is currently ready, able and willing to return to work.
For the reasons set forth above, it is concluded appellant’s appeal should be denied.
 
* * * * *

WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective November 16, 1999, is denied.
  Updated: 5/21/2012
One Column Page
Link Back to Top