Final Non-Precedential Decision Adopted: August 24, 2000
By: Howard Schwartz, DPA Chief Counsel
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:30 a.m. on August 9, 2000, at Sacramento, California.
Appellant was present without representation.
David Beales, Staff Counsel III (Specialist), represented the Department of General Services (DGS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
Appellant automatically resigned effective May 31, 2000, and filed a request (appeal) for reinstatement after automatic resignation on June 12, 2000. The appeal complies with the procedural requirements of Government Code section 19996.2.
Appellant filed his appeal claiming he was unable to work because he was incarcerated. He claimed he was unable to obtain leave because he could not make calls while in jail and also because he had no leave credits. He also claimed he is ready, able and willing to return to work.
Appellant last worked on May 31, 2000. On June 1, 2000, he was arrested for failure to adhere to conditions of his parole including failure to pay child support, failure to pay fines and failure to report to Bay Area Service League meetings, as required. Appellant was in jail from June 1, 2000, to July 28, 2000.
Appellant testified that his employer was responsible for his incarceration because he was not timely paid overtime due him for the month of April 2000. He reasoned that if he had received his overtime check before May 31, 2000, he could have paid the fines imposed by the judge and not been jailed.
The evidence established appellant received his full paycheck of approximately $1,500 (net) at the end of April 2000. Sometime around May 20, 2000, four or five employees in appellant’s unit received their April overtime checks. Appellant was not one of them. He went to his supervisor who assured him she had keyed it into the system. She directed him to the payroll clerk. The payroll clerk asked appellant if he wanted her to call Sacramento to find out when the check would issue. The check arrived on May 31, 2000, along with about 10 other overtime checks for April.
An employee from the Office of Human Resources at DGS testified that she handles Personnel and Payroll for Building and Grounds at DGS. She stated that the system used to issue overtime checks is automated such that the checks usually issue from Sacramento between the 15th and 20th of the month following the overtime. If the overtime is not entered timely, her staff members handle the issuance manually. The deadline for paying the overtime is the last day of the following pay period, which in this case was May 31, 2000.
The evidence did not support appellant’s claim that respondent unreasonably or intentionally delayed the payment of appellant’s overtime. It also did not support appellant’s contention that his payment of fines would have resolved his parole violations, since he was out of compliance with other conditions of his parole at the time he was incarcerated.
Respondent requires an employee to call and notify a supervisor if he is unable to report to work. Respondent has discretion to approve or disapprove last minute requests for vacation leave based upon staff needs. Appellant’s supervisor testified he was not given permission to be off work for jail.
After appellant was arrested, he did not have access to a telephone to make a call to his employer and request leave. Any calls made by the jail inmates must be collect; and the inmates only have access to the phone at certain times. Appellant arranged to have his mother and/or others call and report that he was unable to work because he was in jail.
Even if appellant had called his supervisor, as required, respondent would not have approved time off for appellant to serve a jail sentence. Respondent’s policy is to deny such requests. DGS’s denial of appellant’s leave was within its discretion.
Appellant testified he is ready, able and willing to return to work. Respondent does not dispute that appellant is ready, able and willing to return to work.
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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 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 and must prove by a preponderance of the evidence the he had a valid excuse for his absence and failure to obtain leave and that he/she is currently able to return to work.
In this case, appellant did not prove he had a satisfactory reason for being off work and not obtaining leave. Appellant was off work because he failed to comply with terms of his parole and was incarcerated. Respondent denied appellant leave because of its policy against granting leave to persons who are incarcerated. Also, at the time of his incarceration, appellant did not have any vacation leave balance.
Appellant is currently ready, able and willing to return to work.
Appellant retains his permissive reinstatement rights to State service. However, for the reasons set forth above, appellant’s request for mandatory reinstatement should be denied.
that the appeal for reinstatement after automatic resignation from the position of Janitor with DGS effective May 31, 2000, is denied.