DPA Case Number 00-L-0046 - Reinstatement After Automatic Resignation

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:30 a.m. on August 31, 2000, and at

10:30 a.m. on October 18, 2000, at Riverside, California.

Appellant was present and was represented by Bill Kamalski, Labor Relations Representative, California State Employees Association (CSEA).

Kathryn Doi, Counsel to the Secretary, represented California Trade and Commerce Agency (Trd/Com Agency), respondent.

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

By letter dated April 18, 2000, respondent automatically resigned appellant for being absent without approved leave from April 12 through April 18, 2000. The letter was mailed to an incorrect address and did not timely reach appellant. On May 17, 2000, appellant’s representative filed a request (appeal) for reinstatement after automatic resignation. Although the appeal was late, appellant established good cause for the late filing. Accordingly, it is found that the notice and appeal comply with the procedural requirements of Government Code section 19996.2.

Appellant was automatically resigned effective close of business April 11, 2000, the last day of approved leave. Appellant filed a form appeal through her representative. At the hearing she claimed she had a satisfactory reason for being absent and not having obtained leave. She also claimed she is currently ready, able and willing to return to work.

Appellant was absent from work on approved leave from April 4 through April 11, 2000, for the purpose of traveling to Texas to attend the funeral of an aunt who passed away on or about April 3, 2000. Appellant did not return to California until late on the evening of April 18, 2000. Appellant claimed she was unable to return to her job until April 19, 2000, because she obtained inexpensive airline tickets, which required her to leave California late on April 4 or 5 and return late on April 18, 2000. On April 18, 2000, appellant made efforts to fly stand by on an earlier flight so that she could return to the office prior to the close of the business day. Appellant’s efforts were unsuccessful.

While at work on the morning of April 3, 2000, appellant learned of the death of her aunt in Texas. Her supervisor the Director of the CFC invited her to use a private office to collect herself and make any necessary telephone calls in private. (Appellant’s workspace was a cubicle.)

While using the private office on the morning of April 3, appellant purchased non-refundable airline tickets to Texas, leaving late on April 4 and returning the evening of April 18, a 15-day calendar period, which would result in 11 consecutive days of missed work.

It is undisputed that appellant purchased these airline tickets without having discussed an appropriate leave period with or obtaining approval from her supervisor to be absent from work. It is also undisputed that appellant was required to obtain approval from her supervisor to be absent from work.

Appellant testified that in order to obtain tickets at a reduced fare, she was required to stay a minimum of ten days in Texas and to depart and return on a weekday. Both appellant and the Director testified that they discussed the ticket purchase late on April 3. While their recollection as to time and outcome of the conversation differ, both were in agreement that appellant purchased the non-refundable reduced fare tickets before she spoke with her supervisor regarding leave approval for her trip to Texas.

During the discussion, appellant advised the Director that she made reservations leaving California on April 4 and returning at 10:45 p.m. on April 18. The Director was very concerned about the length of time appellant planned to be gone. Appellant further testified that at the conclusion of the conversation on April 3, she believed she had received verbal approval from the Director because she told the Director that she would be available to take phone calls on her cell phone and at her mother’s house. The Director testified that she told appellant she did not think that the leave period requested could be accommodated and that a final decision would be made the next morning. She assumed appellant would be reporting to work because her flight did not leave until evening.

Appellant did not report to work on April 4, 2000. The Director left a message on her home phone that morning asking her to call regarding the length of leave issue. Appellant responded around noon. The Director advised appellant that she was approving appellant’s absence from the office from April 4 through April 11, 2000. At that time appellant understood she did not have approval to be absent from the office after April 11, 2000.

At approximately 3:00 p.m. on April 4, 2000, appellant sent an e-mail to the Director stating “my time out of the office will be from 4/5-18 and returning on April 19, 2000.” The e-mail made no request for leave, but simply stated appellant’s intentions. Appellant admitted in her testimony that at the time she sent the e-mail she knew her verbal request for leave past April 11, 2000, had been denied.

The Director was out of the office from April 4 through April 9, 2000. She returned on April 10, 2000. Upon her return she responded to appellant’s home e-mail reiterating that appellant only had leave granted through April 11, 2000. Appellant did not receive the response because she was already in Texas.

Appellant did not return to work on April 12, 2000, despite the fact that no one had approved leave for her beyond close of business April 11, 2000.

On April 13, 2000, after contact with the Director the Chief of Human Resources sent an overnight letter to appellant in Texas. The letter reminded her that she was approved to be away from the office only through April 11, 2000, and that she had been placed on unapproved leave commencing April 12, 2000. The letter also warned that she would be automatically resigned from State service retroactive to April 11, 2000, if she did not return to work by close of business April 18, 2000.

Appellant acknowledged that she received the overnight letter on April 14, 2000. At that time she did not make any arrangements to return early from Texas. Instead she called and left two messages for the Director. The Director referred the calls to the Chief of Human Resources. The Chief attempted to contact appellant twice on April 14 and once on Sunday, April 16 at her mother’s home in Texas. No one answered and no answering device was activated. Appellant confirmed that those using the phone at her mother’s house did not access call waiting.

On April 17, 2000, the Director called appellant at the direction of the Chief of Human Resources. She advised appellant that her position regarding leave approval had not changed and that should appellant be absent through April 18, 2000, she would be automatically resigned.

Appellant did not return to CFC by the close of business April 18, 2000. Although she had advised the Director she would be in on April 19, 2000, to pick up her possessions, she did not come into the office on that day either.

The Director testified that the reason she only granted appellant leave through April 11 was the short staffing in the office. She stated a longer leave would be and was a hardship to the other employees of CFC because only half of the staff positions were filled. Appellant herself described the CFC as “short staffed” at the time and admitted it was a burden to her fellow employees to perform her permitting duties in addition to their own. Further, the Director had advised employees previously of the need to restrict vacation leave usage due to short staffing.

Appellant testified she is “absolutely” ready, able and willing to return to work. She is not currently working and is on unemployment insurance. Although appellant had previously voiced to the Director that she might seek other employment in Texas, there was no evidence that appellant is otherwise employed or is unwilling or unable to return to her prior job.

 

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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 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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether 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 she had a valid excuse for absence and for failure to obtain leave. She also must prove that she is currently able to return to work.

In this case appellant had a satisfactory reason for being absent from work for a reasonable period of time, which was that she was grieving for her aunt and went to Texas to be present with her family at her aunt’s funeral. However, appellant was granted a reasonable time based on the needs of the CFC, to attend to the business in Texas. Appellant’s supervisor was not required to grant any emergency leave in the nature of bereavement for an aunt. 1

Appellant’s supervisor made efforts to determine what would be the appropriate course of action in meeting both the needs of her employees and appellant’s needs. She spoke with Human Resources in Sacramento on several occasions regarding the situation and attempted to keep appellant informed regarding her leave status. Her reason for denying additional leave was because the office was short staffed and the work suffered as a result. Based on these considerations, it is found that appellant proved she had a satisfactory reason for being absent between April 4 and April 11, 2000, but not for being absent after April 11, 2000.

Appellant did not prove that she had a satisfactory explanation for not having obtained approved leave for the period April 12 through April 18, 2000. Appellant placed herself in the situation of booking a non-refundable airline flight that would take her out of the office for 15 days, without consulting with her supervisor and without requesting extended leave.

Appellant attempted to justify her conduct by the fact that she was “grieving.” However, appellant engaged in purposefully evasive conduct to avoid complying with her supervisor’s concerns regarding her leave. She did not come to work and did not speak with her supervisor on the morning of April 4, 2000, even though she knew her supervisor was concerned about her intention to be out of the office for an extended period of time. She also left for Texas knowing her leave was only approved through April 11 and she made no efforts to obtain additional leave between the time she sent the e-mail on April 4 until she received the notification on April 13 that she was on unapproved leave. Even after she received the letter, she made no efforts to comply by returning earlier than scheduled from Texas until the day of April 18. Although she made calls to both the Chief of Human Resources and the Director, those calls were for the sole purpose of asking for additional leave rather than returning to work before she was automatically resigned.

Finally, appellant never did come into the office on April 19 after her return. She waited until she received the notice of automatic resignation on or about April 25, 2000. Her actions between April 4 to April 18 did not demonstrate an intention to comply with the leave policies or the specific instructions of her supervisor and the Chief of Human Resources – which were to return to work before the automatic resignation became effective at close of business on April 18, 2000.

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

Since appellant has failed to offer a satisfactory explanation for being absent and for failing to obtain leave to be absent between April 12 and April 18, 2000, her request for reinstatement should be denied.

 

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that the appeal for reinstatement after automatic resignation effective April 12, 2000, is denied.

 

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1. Appellant was not eligible to take bereavement leave because the bargaining agreement for appellant’s bargaining unit does not extend bereavement leave to the loss of an aunt. Appellant’s options, therefore, were to request to use vacation leave (she had 157 hours) or to request an unpaid leave of absence.