DPA Case Number 02-D-0089 - Reinstatement After Automatic Resignation (3 W)

Final Non-Precedential Decision Adopted: December 30, 2002

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on December 19, 2002, at Sacramento, California.

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

Brian Branine, Senior Tax Counsel, represented the State Board of Equalization (BOE), 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 August 16, 2002, because he waived three requests to report to work, August 7, 2002, January 30, 2002, and August 1, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on August 7, 2002. The appeal complies with the procedural requirements of California Code of Regulations, Title 2, sections 599.828 and 599.904.

Appellant claims he should be reinstated because he did not waive three requests to come to work. He alleges he did not know he was supposed to work on August 7, 2001, and that he received permission not to come to work on January 30, 2002, because he had doctors' appointments. Appellant admits he waived coming to work on August 1, 2002.

He also argues that respondent inappropriately applied DPA Rule 599.828 because it counted waivers over a one-year period.

Appellant was originally scheduled to work on August 1 through 4, 2001. He was notified of this schedule by mail 15 days before he was required to be at work. Because of an increased workload, respondent added August 6 and 7, 2001 to appellant's schedule. The normal procedure for notifying an employee of previously unscheduled work days based on an unforeseen workload is to distribute a memo to the employee by either handing it to the employee or leaving it on his desk. If the employee has left work, the supervisor calls the employee to notify him of the additional work time.

Appellant worked August 1 through August 4, 2001. He did not work on August 6, 2001. He called his second-level supervisor and told her he was ill. Based on their conversation, the second-level supervisor immediately completed an absence request on appellant's behalf for August 6, 2001. On August 7, 2001, appellant did not come to work and he did not call his supervisor or anyone else.

On August 10, 2001, appellant's immediate supervisor notified him that his failure to call or report to work on August 7, 2001, was unacceptable and would be considered a waiver. The supervisor also notified appellant that three waivers within a year constituted an automatic separation.

When appellant filled out his timesheet on August 29, 2001, he indicated he was sick on both August 6 and 7, 2001. His entry for August 7, 2001 was crossed out and redesignated "AWOL 8."

Appellant's argument that he was not notified to report to work on August 7, 2001 is not persuasive. Respondent notified appellant to report to work on both August 6 and 7, 2001, in one memorandum. Appellant would not have known he needed to call in on August 6 if he had not received this memorandum. He also would not have known he needed to put entries on his time sheet for August 6 and 7 if he had not been notified he was to report to work on these days. Appellant's actions are inconsistent with his contention that he did not receive notice to work on August 6 and 7, 2001.

Appellant was notified on or about December 14, 2001 he was required to work from 6:00 a.m. to 2:30 p.m. on January 29, 30, and 31, 2002. He was also notified that he was required to work three hours daily mandatory overtime on January 30 and 31, 2002. On these days, he had the option of beginning work at 4:00 a.m. and working as late as 6:30 p.m. in order to work the required overtime.

On January 29, 2002, he signed an absence request indicating he wanted to take January 29 from 6:00 a.m. to 2:30 p.m. off as vacation leave. He also indicated he wanted to take 2.5 hours, 12:00 p.m. to 2:30 p.m., off on January 30, 2002, as vacation leave. In the remarks column, he indicated "Dr Appointment." He left this request on his supervisor's desk in the late afternoon of January 29, 2002. When appellant's supervisor found this request, he went looking for the appellant, but was unable to find him. The supervisor crossed off the request for January 29 because appellant had worked eight hours on that day. The supervisor did not call appellant about his absence request.

Appellant did not call or come to work on January 30, 2002. He testified he confused the day he was to have numerous doctors' appointments. He originally believed his medical appointments were on January 29, but later found out they were actually on January 30. He testified he told his supervisor about these doctor's appointments on January 29 and his supervisor approved his time off. His supervisor denied this conversation and any approval of the time off. The supervisor testified that when he asked appellant why he did not come back to work after his doctor's appointments, appellant replied something to the effect, "It would not have been cost effective."

The supervisor's testimony is credited over that of appellant. Appellant testified he had numerous doctors' appointments and that he had to go to Roseville for an "MRI" and then go to Kaiser on Morse Avenue to have X-rays on January 30, 2002. He submitted a medical note from his physician to corroborate his testimony.

This note does not support appellant's absence for his entire eleven hour shift on January 30, 2002. The physician's note does not refer appellant to a Roseville facility for an MRI. The note indicates appellant went to Kaiser on January 29, not January 30, 2002, and it indicates that further radiological studies would be conducted during future appointments. The note did not indicate what time of day the doctor saw appellant or how long the appointment lasted. The doctor was not called to testify. In addition, appellant admitted on the stand that he had numerous other non-medically related things such as transporting his children, which kept him from reporting to work on January 30, 2002 after his doctor's appointment.

Appellant produced no evidence other than his bare assertion that his time off on January 30, 2002 was approved. Further, both appellant's immediate supervisor and his second level supervisor testified it is respondent's policy not to approve vacation time during quarterly periods of mandatory overtime. They also testified that if the appellant had asked for sick leave for a doctor's appointment on January 30, 2002, he would have been required to return to work to complete his eleven hour shift after that appointment.

 

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DPA Rule 599.828 provides that an employee who is employed on an intermittent time base may be automatically resigned when he 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 he had a good reason for not working on his scheduled days of August 7, 2001, January 30, 2002, and August 1, 2002. Appellant had a responsibility to keep his employer informed as to his whereabouts and to report to work as scheduled unless he was ill or had another good reason for not working. Appellant did not report to work on August 7, 2001, and did not provide a good reason for not doing so. His contention that he did not know he was scheduled to work is inconsistent with his calling in sick on one of the additional days he was notified to work and his completion of his timecard.

Appellant also did not provide a good reason for not coming to work on January 30, 2002. He did not obtain approval to be absent; he did not call his employer; and, he did not submit evidence that he was medically unable to come to work. Appellant admits he waived coming to work on August 1, 2002.

Appellant's contention that respondent is prohibited from automatically resigning him because his three waivers of requests to work occurred over a year's time, is unsupported by rule or statute and is therefore without merit.

Accordingly, the appellant should not be mandatorily reinstated to his prior position as an Assistant Clerk (Permanent Intermittent).

 

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that the appeal for reinstatement after automatic resignation effective August 16, 2002, is denied.