print logo
Main Content Anchor

DPA Case Number 02-H-0098 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: December 10, 2002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 10:00 a.m. on December 5, 2002, at Sacramento, California.
Appellant was present and represented himself.
Karen E. Tarp, Staff Counsel, represented the Department of Motor Vehicles (DMV), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent automatically resigned appellant effective September 25, 2002, for being absent without approved leave from August 13, 2002, through September 11, 2002. CSEA filed a request (appeal) for reinstatement after automatic resignation on behalf of appellant on August 28, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.


Appellant appealed his automatic resignation because he contends respondent could have honored his request to apply his sick leave and vacation time to cover his absence during his incarceration. He also contends he applied his best efforts to contact his employer regarding his absence. He contends he is ready, able and willing to return to work.


Appellant was incarcerated at Elmwood Correctional Center in Milpitas, California from August 12, 2002 to September 10, 2002.1 He was charged with operating a motor vehicle while under the influence of alcohol (Vehicle Code section 23152 (b)). He was involved in a single car accident. His license was suspended and he was ordered to pay fines. He was put on probation for one year. Although appellant requested work furlough or home detention, his requests were denied.


Appellant did not personally call his supervisor to report his absence from work. He could only place collect calls from the correctional facility and he did not believe respondent would accept collect calls. He asked his stepdaughter and his wife to call his supervisor to notify him he would not be at work until September 11.
The supervisor called appellant’s wife on the morning of August 13. Appellant’s wife told the supervisor appellant was ill. That afternoon, appellant’s stepdaughter called the supervisor and reported appellant had been in an accident, but that appellant would be back at work on August 14 and he would call him. Appellant did not call his supervisor.
The supervisor called appellant’s home on August 15 and spoke with appellant’s stepdaughter. Appellant’s stepdaughter told the supervisor appellant was incarcerated for four weeks. Appellant’s stepdaughter asked if appellant could use vacation time to cover the period he was incarcerated. The supervisor told the stepdaughter he would be in further contact with appellant.
On August 15, the supervisor sent a letter to appellant both at his home address and at the Elmwood Correctional Center telling him incarceration was not an acceptable reason for not coming to work, that he was absent without leave (AWOL) as of August 13, and that if he did not report to work by August 26, a request for dismissal from State service would be submitted. The supervisor told appellant to contact his office if he had questions. Respondent received no further contact from appellant or anyone else on his behalf until after September 11, when the automatic resignation notice was sent.
Appellant admitted he was not sick during his period of incarceration. Respondent has a policy that sick leave is not granted to employees who are not sick, but rather incarcerated.


Appellant testified he is currently ready, able and willing to return to work. Respondent did not dispute this.
* * * * *


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 therefore, 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.
Appellant failed to prove he had a satisfactory explanation for being absent from work and for not obtaining approved leave. In this case, appellant engaged in misconduct which resulted in his being arrested, charged and convicted of criminal activity. Such activity and subsequent incarceration does not excuse his absence.
A State agency has discretion to determine when vacation and sick leave will be granted consistent with acceptable policies and procedures set forth in any bargaining agreement. In this case, respondent has a policy that vacation leave will not be granted to cover periods of incarceration in correctional facilities. It also has a policy it will not grant the use of sick leave if the employee is not sick, but rather incarcerated.
Appellant proved he is currently ready, able and willing to return to work.
* * * * *


that the appeal for reinstatement after automatic resignation effective September 25, 2002, is denied.
* * * * *


1. All dates are 2002 unless otherwise noted.
  Updated: 5/2/2012
One Column Page
Link Back to Top