Final Non-Precedential Decision Adopted: November 26, 2002
By: Howard Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on November 18, 2002, at Sacramento, California.
Appellant was present and represented herself.
Chian He, 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.
I - JURISDICTION
Respondent automatically resigned appellant effective close of business August 29, 2002, for being absent without approved leave for nine days. Appellant filed a request (appeal) for reinstatement after automatic resignation on September 20, 2002. The appeal complies with the procedural requirements of Government Code section 19996.2.
II - CAUSE FOR APPEAL
The grounds for appellant’s appeal for reinstatement were unclear.
III - STATEMENT OF FACTS
At the beginning of the hearing, the ALJ advised appellant that to be reinstated she had the burden of proving she had a valid reason for being absent; she had a valid reason for not obtaining leave; and that she was ready, able and willing to return to work. (Government Code section 19996.2; Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102.)
Appellant then told the ALJ she could not meet these three requirements because she was not ready, able and willing to return to work. The ALJ advised appellant that if that was the case, the ALJ could not order her reinstatement. The ALJ asked appellant if she wished to withdraw her appeal or if she wanted to proceed.
Appellant became upset. She stated she was “in the wrong place,” thanked the ALJ and respondent for their time, and left the hearing room. The ALJ adjourned the hearing. No witnesses were called or sworn to testify and no exhibits were introduced.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
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 (supra) 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 case appellant admitted she was unable to return to work and she failed to proceed at hearing. Thus, she failed to meet her burden of proving she should be reinstated.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective August 29, 2002, is denied.
