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DPA Case Number 01-A-0129 - Reinstatement After Automatic Resignation

​DPA Case Number 01-A-0129 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: February 27, 2002
By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on February 11, 2002, at Eldridge, California.
Appellant was present and was represented by Trinette Gist Skinner, Labor Relations Representative, California State Employees Association (CSEA).
Barbara Farley, Labor Relations Specialist, represented the Department of Developmental Services (DDS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent automatically resigned appellant effective close of business December 2, 2001, for being absent without approved leave from December 3 through December 14, 2001. On December 19, 2001, appellant filed a request (appeal) for reinstatement after automatic resignation. The appeal complies with the procedural requirements of Government Code section 19996.2. The matter was originally scheduled for hearing on February 11, 2002. It was continued at the request of appellant’s representative for good cause shown.


In his appeal mailed December 19, 2001, appellant stated he was unable to report to work between December 3 and December 14, 2001, because he was incarcerated. He also stated he was unable to contact his employer directly to request leave but that he made every effort to do so. He claims he is ready, able, and willing to return to work.
At the hearing appellant claimed that he was falsely imprisoned and that all charges, which led to his incarceration, have been dismissed.


According to his own testimony and court records, appellant was first arrested on September 25, 2001, on a charge of domestic violence. He was released on his own recognizance on September 27, 2001, subject to certain conditions. He was re-arrested October 1 through October 10, 2001, for violation of the supervised release and re-released October 11, 2001. On November 29, 2001, he was re-arrested for violation of his supervised release. On December 14, 2001, he was re-released. He was scheduled for a criminal trial on February 13, 2002. On February 13, 2002, appellant’s criminal trial was dropped from the court’s calendar. All charges were dismissed. And, bail was exonerated.
Appellant testified that he was innocent of the initial charge of domestic violence and the circumstances that led to his re-arrest. Specifically, he testified that his significant other falsely accused him of domestic violence and later recanted a false police report, which led to his arrest. Also, he testified that the reason he was re-arrested on November 29, 2001, was that he had a drug test with a false positive because he had taken “Bronchaid” cold medicine prior to administration of the test.
Neither party produced records to establish the factual basis for the arrest and/or re-arrests. Appellant presented copies of the court’s docket to establish the charges and the dispensation of his cases. Respondent agreed to permit entry of those documents into the record. Therefore, the ALJ relied upon those records to establish appellant was in custody between November 29 and December 13, 2001, and that all charges against appellant were dismissed on February 13, 2002.


Appellant did not expect to be arrested on November 29, 2001. Therefore, he did not notify his employer that he would not report to work on December 3, 2001, his next scheduled workday. He was unable to make anything other than collect calls from the jail.
On December 3 or 4, 2001, appellant called his significant other and asked her to notify his supervisor that he was in jail and not able to work. She contacted his supervisor who advised her to notify the registry. On December 5, 2001, he tried to call registry three times but was unable to get through because the lines were blocked for collect calls. On December 8, 2001, while still in jail, appellant prepared a letter to the Supervising Psychiatric Technician with the Registry Office. In the letter he formally advised her of his situation and requested a short leave to resolve the issue of his incarceration.
Appellant was finally released on December 13, 2001. On December 14, 2001, he stated he reported to work but was advised that he was not scheduled. Respondent mailed him a Notice of Automatic Resignation on December 14, 2001. The notice advised him that he was being automatically resigned for his absence between December 3 and December 14, 2001.
By letter dated December 17, 2001, the Unit Supervisor for Staffing Services advised appellant that his request for leave had been denied. No reason was given. At the hearing, the Unit Supervisor testified that appellant’s leave request was denied because he was incarcerated. It is the policy of Sonoma Developmental Center to deny leave to all employees who are absent by reason of incarceration.


It was uncontested that appellant is currently ready, able, and willing to return to work.
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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal 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 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.
Many State employees have been automatically resigned for being absent without approved leave because they are incarcerated for five or more days. For a number of years, both DPA and the State Personnel Board (SPB) have relied upon the former SPB
(non-precedential) decision in Frank C. Santiago (1995) SPB Case No. 35488, to determine whether or not to reinstate an employee who is absent from work due to incarceration. The decision states in relevant part:
“incarceration is not a satisfactory reason for being absent without leave unless the circumstances are beyond the control of the employee, such as arrest without just cause or innocence.”
In this case, appellant argued that he had a satisfactory excuse for being absent because he was unjustly accused of a crime and was innocent. As support, he presented court records to demonstrate any and all charges leading to his incarceration have been withdrawn. Additionally, appellant’s significant other testified that she in fact filed a false police report, which unjustly accused him of domestic violence. (She recanted her allegations by a letter to the Sonoma County Courts on or about December 8, 2001.)
From the record, it must be concluded that appellant was unjustly incarcerated and therefore, had a satisfactory reason for being absent from work between December 3 and December 14, 2001.
Also, in this case, appellant argued that he had a satisfactory reason for not having obtained leave. Although he promptly notified respondent of his whereabouts, and made substantial efforts to obtain leave, the leave was denied because he was incarcerated. Respondent made no allegations and offered no proof that there was any other reason for leave denial. Therefore, from the record, it must be concluded appellant had a satisfactory reason for not obtaining leave because it was denied due solely to his unjust incarceration.
Finally, respondent did not contest appellant’s claim that he is currently ready, able and willing to return to work. It is concluded appellant is ready, able and willing to return to work.
Respondent argued that appellant should not be manditorily reinstated because he testified that he failed a drug test under the condition imposed by the courts after his initial arrest and release. However, appellant also testified that the reason he failed the test was that he had taken “Bronchaid.” There was no evidence regarding drug testing other than appellant’s admission and excuse. That evidence was insufficient to establish appellant engaged in misconduct, which required incarceration of the nature suffered.
For the reasons set forth above, the appeal should be granted.
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that the appeal for reinstatement after automatic resignation effective December 2, 2001, is granted. Appellant should be reinstated without back pay no later than 14 days from receipt of the decision by respondent.
  Updated: 5/22/2012
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