DPA Case Number 01-M-0110 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: July 2, 2002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 9:00 a.m. on December 17, 2001, at Sacramento, California.

Appellant was present and was represented by Janis Mickel Szichak, Labor Relations Representative, California State Employees Association (CSEA).

Glenn Jones, Staff Counsel, represented the Employment Development Department (EDD), respondent.

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

On October 3, 2001, respondent served appellant with a Notice of Automatic Resignation separating appellant from her position as an Employment Program Representative, Permanent Intermittent (EPR-PI) with EDD. Although appellant was an EPR-PI, she was not resigned pursuant to DPA Rule 599.828.1 Appellant was automatically resigned retroactive to September 20, 2001, pursuant to Government Code section 19996.2, for being absent without approved leave for “five consecutively scheduled workdays.”2 Those workdays were Monday, September 24; Thursday, September 27; Friday, September 28; Monday, October 1; and Wednesday, October 3, 2001. Appellant filed a request (appeal) for reinstatement after automatic resignation on October 15, 2001. The appeal complies with the procedural requirements of Government Code section 19996.2.

On October 15, 2001, appellant filed an appeal stating she believed the Office Manager had granted her a leave of absence on September 20, 2001; and that she had properly notified her Supervisor by voice mail on Sunday, September 23, 2001. She also stated she had no reason to believe the leave would be denied because she was a PI employee and there were very few work hours available for the PI’s at that time.

Appellant was one of many persons emotionally affected by the tragic events of September 11, 2001, when the Twin Towers in New York City were destroyed and the Pentagon was damaged by terrorist acts. The emotional impact upon appellant was such that she felt a need to participate in an advanced program in transcendental meditation offered by the Maharishi Vedic University in Iowa.

Appellant has been a student of transcendental meditation for some time. It was her belief that by participating in a particular program at the University with other adherents she could help the United States avoid World War III. According to the literature prepared for the program, when the Transcendental Meditation – Sidhi Program is practiced in groups, it “enhances the benefits to the individual and at the same time benefits society as a whole.” The literature also states:

“Practicing this program together in one place generates a powerful influence of coherence in the collective consciousness of the whole population. Studies have shown reduced crime, sickness, and accident rates, as well as decreased international conflict and social turbulence.”3

Appellant testified that she worked on September 20, 2001. Late in the day she notified the Office Manager that she would like to be taken off the PI’s schedule for work for two to three weeks to go to the Midwest for personal business. (She did not identify the specific nature of her personal business.) The Office Manager said something to the effect of she did not see a problem with that but appellant should check with her direct supervisor. Appellant did not firm up her intention to go until she contacted the school in Iowa. She had to confirm that she could attend and make living arrangements for her stay.

Appellant verified the attendance and living arrangements on Friday. And on Sunday, September 23, 2001, she called her supervisor’s voice mail and left the following message.

“[Name omitted], it is [appellant] and I talked to [name omitted] on Thursday with the suggestion that I take a leave of absence and I do. I will be going to the Midwest on personal business and I expect to be able to return to work on approximately November 5th. That’s longer than I told [name omitted]. But if I’m not going to return at that time, I will let you know. Thank you, Bye.”

On Sunday, September 23, 2001, appellant began driving to Iowa. On October 2, 2001, after she had arrived in Iowa, appellant sent her Office Manager a letter. It read in part,

“I have arrived safely in Iowa. Thank you so much for allowing me a leave of absence on such short notice. When I talked to you on Thursday, September 20th, I thought that I would only need to be gone about three weeks. However, as I mentioned to [name omitted] in the voice mail I left her Sunday, I decided to drive and thus estimated that I would return to work by November 5.... I now find that I need to be here through November 1. I would prefer not to drive back at the speed I drove out here. Therefore, I would like my return to work date to be November 13, as I believe the 12th is a holiday. I don’t imagine that this will be unacceptable since the PI’s are still working only 2-3 days a week. Therefore, there can be no pressing business reason for me to be there earlier. If, however, this is a reason why this would not be satisfactory, you may leave a message at [number omitted] or write to me [address given].... I look forward to being with all of you again for the holiday season when you usually need us who are PI’s to fill in for vacation requests. .... Again, thank you for this time away from work. Without this leave of absence, I would just have worried that I was not doing enough to meet responsibilities that I take very seriously.”

Both the Office Manager and Supervisor testified regarding appellant’s leave request. The Office Manager acknowledged that around 2:00 p.m. on Thursday, September 20, 2001, appellant called her and advised she might need time off to go to the Midwest. Appellant told the Manager that if she did need the leave, she would come in and make a written request. The Manager responded that rather than stop in, she could call her Supervisor to make sure the times were okay.

At the time appellant made the request, she was not aware of the office schedule for the following week. According to the testimony of a fellow employee and the Supervisor, the schedule for the following week was posted sometime after the Thursday morning meeting (either Thursday afternoon or Friday). Appellant finished work at 1:00 p.m. on Thursday and left before she saw a schedule posted. The Manager stated that when she spoke with appellant on Thursday afternoon and told her to call the Supervisor, the Supervisor was not in the office. On Friday, which was a non-scheduled day for appellant, the Manager informed the Supervisor that appellant might want time off to go to the Midwest. On Monday morning, September 24, 2001, the Supervisor listened to appellant’s voice mail regarding her time off work. She considered the voice mail message insufficient for her to grant leave. She did, however, acknowledge that they had few PI hours at that time and if appellant had properly requested leave, it likely would have been granted.

The Supervisor did not call appellant’s home and leave a telephone message that she was denying leave. She did not send any written notification to appellant that she was denying her leave. She stated she assumed appellant had left and it would do no good. In fact, appellant had a friend monitoring both her home answering machine and mail.

The only additional action the Supervisor took regarding appellant’s absence was to schedule her to work the following week for an additional three days (Monday, Wednesday and Thursday). The Supervisor never called appellant’s home or wrote to advise her of the additional scheduling. However, she used the additionally scheduled workdays to consider appellant absent without approved leave for “five consecutive work days.”

On Thursday, October 3, 2001, the Office Manager mailed appellant a Notice of Automatic Resignation, which reached her on October 9, 2001.

The parties stipulated appellant is 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.

In this instance, appellant was distraught by the events of September 11, 2001. She believed that by traveling to Iowa to engage in group transcendental meditation she would be serving the greater good of the nation and fostering peace. Appellant’s supervisor acknowledged that if appellant had “appropriately” requested leave for that purpose, it would have been granted and that there were few hours for PI’s to work at that time. For the reasons set forth above, it is concluded that appellant had a satisfactory reason for being absent.

Also in this instance, appellant appropriately advised her Office Manager that she was likely to need two to three weeks leave to travel to the Midwest. The Office Manager did not advise appellant she could not take leave. Appellant offered to put the request in writing if she decided upon the dates. The Office Manager told her she could call her Supervisor with the dates, which she did. Thereafter, neither the Office Manager nor the Supervisor made any effort to contact appellant and tell her that her request was defective or that the leave was denied. From appellant’s voice mail of September 23 and her letter of October 2, 2001, it is clear that appellant held a good faith belief that she had been granted leave. Respondent’s counsel stated in closing argument that appellant may have had a good faith belief that she had been granted leave, but she made erroneous assumptions regarding her contacts with the supervisor. He stated she needed to “ask” her supervisor; and she never said, “Can I go?”

Appellant acted in good faith in notifying both the Supervisor and Manager that she needed leave. Thereafter, she held a reasonable belief that she had permission for a leave of absence. Her belief was reasonable because neither the Manager nor the Supervisor ever notified her that her notice to them was defective. In fact, they made no effort to communicate with her until they scheduled her for additional days and they automatically resigned her. For the reasons set forth above, it is concluded appellant had a satisfactory explanation for not having obtained leave.

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

Accordingly, appellant should be manditorily reinstated to her prior position in the Stockton Job Services Office. Also, she should be scheduled for work consistent with the days and hours scheduled for the rest of the EPR-PI’s in the office.

 

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that the appeal for reinstatement after automatic resignation effective September 20, 2001, is granted.

 

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1. DPA Rule 599.828 provides that employees who are employed on an intermittent time base may be AWOL resigned for waiving three requests to work.

2. Government Code section 19996.2 provides that an employee who is absent without leave for five consecutive working days may be automatically resigned as of the last day on which the employee worked.

3. This quotation is taken from “Introduction to the TM-Sidhi Program To Develop Higher States of Consciousness, Bring Life in Accord with Natural Law, and Create Heaven on Earth” published by the Maharishi Vedic Universities, Maharishi Vedic Schools and Maharishi Vedic Centers (publication date unknown). See Appellant’s Exhibit C.