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DPA Case Number 99-W-0032 - Reinstatement After Automatic Resignation (3 W)

​DPA Case Number 99-W-0032 - Reinstatement After Automatic Resignation (3 W)

Final Non-Precedential Decision Adopted: April 28, 1999
By: K. William Curtis, DPA Chief Counsel

DECISION

This matter was heard before Mary C. Bowman, Administrative Law Judge, Department of Personnel Administration (DPA) at 10:00 a.m. on April 22, 1999, at Sacramento, California.
Appellant was present without representation.
Cris Rojas, Personnel Analyst, represented the Department of Transportation (CALTRANS), respondent.
Evidence having been received and duly considered, the Administrative Law Judge makes the following findings of fact and Proposed Decision.

I - JURISDICTION

Appellant was automatically resigned effective December 17, 1997, the last day she worked. She filed a request (appeal) for reinstatement after automatic resignation on March 2, 1999. The appeal complies with Government Code section 19842.5 and Title 2, section 599.828 of the California Code of Regulations (DPA Rule 599.828).

II - CAUSE FOR APPEAL

Respondent notified appellant in writing on or about February 9, 1999, that effective February 18, 1999, she would be considered to have automatically (AWOL) resigned on December 17, 1997, based upon her waiver of three or more requests to work. Appellant was charged with waiving scheduled work on July 17, 18, 19, 21, 22 and 24, 1998. Thereafter, appellant filed her request for reinstatement with DPA. She admitted she did not report for work on the dates at issue, but claimed she had good cause for failing to report.

III - STATEMENT OF FACTS

Appellant was on probation December 17, 1997, when she last worked. Shortly after that date, she called and advised the Toll Captain for the Bay Bridge that she was ill and unable to work for a while due to pneumonia. On February 17, 1998, appellant entered a drug and alcohol residential treatment program at St. Anthony’s Farm in Petaluma, California.
She left St. Anthony’s on March 30, 1998, and went to the Salvation Army Detoxification Center on Harrison Street in San Francisco. Between April and September 24, 1998, she lived with a friend and participated off and on in various outpatient rehabilitation programs. Some she identified were Target City, OSNOM Detoxification, Salvation Army, and Chariots of Fire. On September 24, 1998, she entered another residential treatment program at the Women of Faith Recovery Home in Hayward, California. She testified she successfully completed the program and still resides there.
Between January 1998 and the date the notice of automatic resignation was sent (on February 9, 1999), appellant only made one effort to notify respondent of her whereabouts. On March 9, 1998, she sent a letter to the Toll Captain from St. Anthony’s stating she was responding to his December 1997 request for documentation to support her absence and that she was in a residential treatment program. She also requested a six-month leave of absence to complete the program.
The Toll Captain spoke with his Personnel Liaison and was advised that CALTRANS does not place intermittent employees on leave status but would allow a period of time during which an employee would not be called for medical reasons. Accordingly, the Toll Captain did not schedule appellant for work in March or April.
On May 1, 1998, the Toll Captain called St. Anthony’s for a status report on appellant. He was advised she was no longer in the program. In fact, appellant had been asked to leave on or about March 30, 1998.
The Toll Captain did not schedule appellant to work in May or June 1998. By July 1998 he resolved that he would schedule her for work since she had been off work for six months.
On July 10, 1998, he mailed a certified letter and an uncertified letter to appellant’s last known address on Newhall Street in San Francisco. (The address is appellant’s father’s residence.) The letters advised her that she was scheduled to work shift 1418 on Friday, July 17, 1998, with a report time of 1315 hours. She was also scheduled for five additional shifts between July 17 and July 24, 1998 (with the times and shifts listed). The letters further advised her that she was to notify the Toll Sergeant’s Office if she was unable to report and that failure to report without an acceptable reason would be cause for AWOL.
Both letters were returned with notations including “Please don’t send mail to this address,” and “Return to Sender.” When appellant was examined at the hearing she stated her father always saved her mail and she always picked it up. She doubted the letters were mailed. However, after being shown the original letters marked “return to sender” she thought she recognized the writing as her nephew’s (who is now in prison). She testified he lived with her father for a while and would have returned them because of conflicts with her.
Sometime after July 1998, the Toll Captain turned the matter of appellant’s failure to report to work over to the Office of Personnel Operations for CALTRANS in Sacramento. On February 9, 1999, that office prepared and served a Notice of Automatic Resignation upon appellant. The notice was mailed to appellant at her father’s address.
On March 2, 1999, appellant requested reinstatement through CALTRANS; and thereafter, she filed her appeal with DPA.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ADMINISTRATIVE LAW JUDGE MAKES THE FOLLOWING DETERMINATION OF ISSUES:

DPA Rule 599.828 provides that an employee who is employed on an intermittent time base may be automatically resigned when she waives three requests to work, unless the employee waived the work due to illness or for another good reason. Further, the employee has the burden of proof and the burden of going forward in seeking reinstatement after automatic resignation.
Appellant failed to prove that she had a good reason for not working on her scheduled days in July 1998. Appellant had a responsibility to keep her employer informed as to her whereabouts when working as an intermittent Toll Collector. She also had a responsibility to remain available for work unless she was ill or had another good reason for not working. Appellant did not make herself available for work, and did not keep her employer informed of her whereabouts.
In this case the employee did not establish that she was unable to work due to illness. The reason she was not at work on July 17, 18, 19, 21, 22 and 24, 1998, was that she did not provide her employer with the correct address for receipt of mail or with a current phone number where she could be reached. Further, she demonstrated no regard for contacting her employer after March 9, 1998, to continue her status as an intermittent employee.
Accordingly, the appellant should not be mandatorily reinstated to her prior position as a Toll Collector (Permanent Intermittent).
 
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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation effective December 17, 1997, is denied.
 
  Updated: 5/3/2012
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