Final Non-Precedential Decision Adopted: August 18, 1999

By: Howard Schwartz

This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 11:00 a.m. on May 27, 1999, at Riverside, California, and at 8:30 a.m. on July 21, 1999, at Sacramento, California.

On May 27, 1999, appellant was present and was represented by Dennis Moss, Attorney, Professional Engineers in California (PECG). On July 21, 1999, appellant and his attorney appeared telephonically from Glendale.

Respondent, Department of Transportation (Caltrans), was represented by Janelle Bradley, Personnel Analyst, Caltrans. She appeared telephonically from Irvine on July 21, 1999.

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

Appellant automatically resigned effective November 8, 1998, and filed a request (appeal) for reinstatement after automatic resignation on January 29, 1999. This matter was originally set for hearing on March 30, 1999, but was continued to July 21, 1999, at the mutual request of the representatives. A second request for a continuance was denied for lack of good cause shown. The appeal complies with Government Code section 19996.2.

Respondent notified appellant in writing on or about January 21, 1999, that effective February 1, 1999, he would be considered to have automatically (AWOL) resigned on November 8, 1998, based upon his absence without leave from November 9, 1998, through January 21, 1999. Thereafter, appellant filed his request for reinstatement with DPA on "all grounds permitted by law or rule."

In August 1998 appellant requested a one-year leave of absence for family reasons. Appellant's brother was ill and needed appellant to assist him with his business. The brother owns a gas station; and he was required to conform his gas tanks to new Air Resources Board (ARB) requirements no later than December 31, 1998, or close the station.

Appellant made his request to the Supervising Transportation Engineer who referred him back to his immediate supervisor, a Senior Transportation Engineer. The supervisor advised appellant that he could not approve a one-year leave of absence because of a heavy workload. He also advised appellant he would approve a twelve-week leave of absence consistent with the Family Medical Leave Program (FML Leave).

The expected leave was to run from August 10, 1998, to November 9, 1998.

Appellant decided to take the twelve weeks allocated and later renew his request for additional leave time.

Between November 9, 1998, and January 21, 1999, appellant was still off work for the purpose of assisting his ill brother conform his tanks and run his business.

On August 20, 1998, an employee in the Caltrans Personnel Operations Division generated a Notice of Personnel Action (NOPA) "Report of Separation" for appellant. The NOPA indicated appellant was temporarily separated from State service on a leave of absence effective August 10, 1999. The NOPA contained the following comments.

"The reason for your separation is: personal reasons.

. . .

Your approved absence expires 08/09/99. You must return to work immediately thereafter. If conditions exist which prevent your return at this time, contact your departmental personnel office. Failure to return or contact your personnel office may jeopardize your return to your job or result in an AWOL absence without leave separation.

You have a right to return to your class or a closely related class at the expiration of your leave provided you continue to meet the conditions for which the leave was approved. Return at an earlier date is only with the approval of the appointing power." (Emphasis added.)

The NOPA contained the following information regarding correction/early return rights.

"This substantiates the separation information as entered on the office employment history record. Information shown on this document is assumed correct. If not, notify the departmental personnel office in writing of errors within 30 calendar days from issue date."

The NOPA was mailed to appellant on or about August 20, 1998, its issue date.

Based upon the NOPA, appellant reasonably concluded that his original request for a one-year leave of absence had been honored.

Appellant did not return to work on November 9, 1998. He continued to assist his ill brother. On November 30, 1998, appellant's supervisor called him and left a voice mail message asking why he had not returned to work.

Appellant responded by sending a letter dated November 30, 1998, to respondent. In the letter he advised respondent that he was surprised to hear from his supervisor and did not expect to hear until the following summer. He advised that after he applied for his leave of absence he received a "formal & official Notice of Personnel Action" indicating his leave of absence was to expire August 9, 1999. He relied on that expiration date and at that time had "serious plans and commitments that prevent me from return to Caltrans until next August." He enclosed a copy of the NOPA with the letter and mailed it to respondent.

Appellant's supervisor testified he did not know appellant had gotten the NOPA authorizing a one-year leave of absence.1 On December 1, 1998, appellant's supervisor followed up by sending him a memo advising that his FML leave had ended and ordering him to return to work December 10, 1998.

On December 16, 1998, the Assistant Branch Chief for Caltrans Office of Operations sent appellant a letter stating in part:

"I am writing to inform you that the Notice of Personnel Action dated 8/20/98 which indicates you are on a Leave of Absence beginning August 10, 1998 and ending August 9, 1999 was sent to you in error. A corrected NOPA will be mailed shortly."

The letter ordered him to return to work Monday, January 11, 1999, and stated he would be considered absent without leave if he failed to report.

On December 9, 1998, respondent's personnel office generated a NOPA, which retroactively changed the ending date of the leave of absence from August 9, 1999, to November 9, 1998. A copy of the NOPA was mailed to appellant on or after December 9, 1999. On December 24, 1998, respondent's personnel office generated a third NOPA, which retroactively changed the reason for the leave from "personal reasons" to "family care leave." It is presumed appellant was also mailed a copy of the third NOPA.

Appellant made informal efforts to resolve his dilemma. On December 31, 1998, he sent a letter to the Division Chief. It requested assistance and stated in part:

"...Based on the CALTRANS Personnel Department action granting me a one year leave of absence, I went to their [his family's] assistance and made specified commitments to them. I am now faced with a very difficult decision: abandoning CALTRANS or abandoning my family in this relatively short-term hour of need.

[Name omitted] I would like you to take a look at what is going on with all of this. I relied on the good faith of the document that I received in making commitments to my family and my ailing brother..."

By letter dated January 7, 1999, the District Division Chief responded stating he had been informed by the Office of Personnel Operations "whatever was sent to you [appellant] from personnel indicating approval for a one-year leave was sent in error. A corrected notice will be mailed to you."

In mid-December 1998, appellant also sought formal assistance from his union, PECG. On December 21, 1998, Staff Consultant for PECG, sent a letter to respondent's Assistant Branch Chief pointing out appellant's reliance on the approved one-year leave of absence. The Staff Consultant for PECG also pointed out that respondent appeared not to have taken the proper steps to terminate a one-year leave of absence. Therefore, PECG considered

appellant to still be on a one-year leave of absence. Also in December, the Staff Consultant for PECG spoke with a DPA Personnel Management Consultant, about respondent's efforts to automatically resign appellant. A letter dated December 23, 1998, confirmed the conversation. The letter stated in relevant part:

"As I explained in our telephone call, I believe that for District 12 to follow the procedure outlined in Rule 599.782, the District must request and receive approval from the Director of the Department of Personnel Administration if it intends to terminate a leave of absence that had been previously approved for an employee. Conversely, if DPA wishes to terminate an employee's leave of absence, it must do so with the approval of the appointing power....Caltrans is not following this process and DPA needs to have some procedure in place whereby all the relevant information can be evaluated before a decision is made to reverse or terminate a leave of absence that had been approved."

DPA Rule 599.782 provides as follows:

"A leave of absence is terminated by:

(a) expiration of the term thereof;

(b) the sooner expiration thereof by the appointing power with the approval of the Director of the Department of Personnel Administration or by the Director with the approval of the appointing power and receipt by the employee of written notice of such revocation at least 15 days prior to the effective date of the revocation; or

(c) the sooner cancellation thereof by the employee with the approval of the appointing power."

Respondent's Assistant Branch Chief consulted by telephone with a staff member of DPA regarding the matter. The staff person advised respondent's Chief to "follow the rule." Respondent did not obtain the approval of the Director of DPA to cancel or rescind the rest of the leave of absence, but instead sent the employee a 15-day notice ordering him to return to work on January 11, 1999. When appellant did not return on January 11, 1999, respondent automatically terminated appellant based upon his absence from November 9, 1998, through January 21, 1999.

Respondent's position at the hearing was that appellant was never on a one-year leave of absence. That position is inconsistent with the language of the NOPA which stated any corrections must be made within 30 days. (None were made.) It also is inconsistent with the official paper work generated by respondent's Personnel Office in August 1998 and the paper work generated in early and mid December. In August 1998, respondent did, in fact, place appellant on a one-year leave of absence by transmitting information to the State Controller's Office which generated notice to appellant and District 12 that appellant was on an approved leave of absence through August 8, 1999. Respondent also terminated the leave of absence in December 1998 without obtaining approval from DPA’s Director.

From the facts stated above, it is concluded appellant was under the misimpression that he was not required to request additional leave covering November 9, 1998, through

January 21, 1999. He held the misimpression because of the NOPA he received to that effect and because DPA Rule 599.782 does not permit an appointing power to unilaterally rescind a one-year leave of absence.

Appellant testified he is ready, able and willing to return to work. He is no longer needed in the family business. The one-year absence was to terminate August 9, 1999.

 

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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 regards to the actual termination. Further, appellant has the burden of proof in these matters 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 proved by the preponderance of the evidence that he had a satisfactory explanation for his absence. Appellant was absent for personal reasons. He was assisting his brother in his business affairs while his brother was ill.

Appellant also proved by the preponderance of the evidence that he had a

satisfactory explanation for not obtaining approval to be absent from November 9, 1998, through January 21, 1999. Appellant reasonably believed the unilateral termination of his one-year leave of absence by respondent was invalid.

It was undisputed that appellant is currently ready, able and willing to return to work.

For the reasons set forth above the appellant should be reinstated, without back pay, to his position as Transportation Engineer (Civil) with Caltrans. 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 Transportation Engineer (Civil) with Caltrans effective November 8, 1998, is granted.

 

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1. However, the NOPA stated right on its face "Route to Department of Tr/Dist. 12."