Final Non-Precedential Decision Adopted: January 14, 2004

By: Gloria Moore Andrews, Chief Deputy Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on November 6, 2003, at Sacramento, California. The record remained open until November 21, 2003 for filing of closing briefs.

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

Noreen Skelly, Deputy Attorney General, represented the Office of Statewide Health Planning and Development (OSHPD), respondent.

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

Respondent automatically resigned appellant effective July 18, 2003,1 for being absent without approved leave from July 7 through July 11. CSEA filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on July 23. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she had a valid reason for being absent; she complied with respondent’s past practice and requirements for obtaining leave; and, she is ready, able, and willing to return to work. Appellant also contended that she was not absent five consecutive days.

Appellant argued that financial problems created an emergency situation which required her to stay at home to work on her house to prevent it from being imminently sold at auction. She also argued that her financial problems and the imminent sale of her house caused her stress and other physical problems which made her unable to report to work.

Respondent required appellant to call her supervisor one half hour before the beginning of her shift if she was unable to work because of illness or other unforeseen emergency. Respondent required appellant to request vacation time at least two days in advance of the vacation date.

Appellant argued she met these requirements on July 7, 8, and 11 because she informed her supervisor on these days that she would not be at work. On July 7, she left a voicemail message for her supervisor within the required one half hour saying something to the effect that she would not be at work because she “needed to take care of some things per her broker.” On July 8, appellant e-mailed her supervisor that she would not be at work because she was “stressed” and needed to “finish up what is needed to be done” in her home. She requested vacation or sick leave for that day. Appellant said she would be at work the next day. She did not come to work or contact her supervisor the next day, July 9, or on July 10. On July 11, she left a voicemail message for her supervisor indicating she would be at work in the afternoon. She did not come into work in the afternoon because she continued to deal with financial issues relating to the sale and refinancing of her house. She did not contact her supervisor to report her prolonged absence.

Appellant testified her supervisor knew of her financial problems and that she had been sympathetic to her situation in the past. Appellant also testified she relied on the fact that in the past, her supervisor had allowed her to take sick leave or vacation without meeting the advance notice requirements. Even though appellant did not speak with her supervisor during the five days at issue, appellant believed her absence would ultimately be approved.

Appellant testified that her house is no longer in foreclosure and that she 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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether 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 she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

In this case it is uncontested that appellant was undergoing severe financial problems that could result in the imminent foreclosure of her home if she did not take immediate action. Appellant’s absence from her state job to work on her home under such circumstances represents a valid reason from being absent. However, appellant’s claim that she was unable to work because of stress and other related illness is without medical substantiation. She did not see a doctor during her absence and she did not present medical evidence to support her inability to work because of medical reasons. Appellant did not prove by a preponderance of the evidence that she was too sick to come to work. Therefore, the evidence shows she was validly absent from work based only on her immediate need to deal with her financial problems.

Appellant failed to prove she had a valid reason for not obtaining leave. Appellant knew she was required to request leave two days in advance of the leave date unless she was ill or had another unforeseeable situation that prevented her from requesting leave prior to the date of her absence. Appellant failed to prove she was either too ill to work or that she experienced an unforeseen emergency that prevented her from requesting leave two days in advance of her absences.

Appellant was notified on June 14 that her house would be auctioned on July 11. On June 27 she was notified that in order to obtain new financing to prevent the auction, she needed to make home improvements. The fact that she did not make the decision to begin the needed work until the weekend of July 4 does not make her absences on July 7 through 11 an emergency. Such a knowing and calculated decision not to come to work does not represent unforeseen circumstances. Appellant was not ill. Appellant did not comply with the requirement to request vacation or other non-emergency leave two days in advance of the leave. Appellant was absent five consecutive days without approved leave.

Although appellant contends that respondent waived the time requirements for obtaining leave on numerous occasions in April 2003, the evidence shows that the absences during April were either approved in partial day increments or were based on medical verification that appellant was ill and unable to work. Such was not the case in this instance.

In addition, appellant knew respondent was enforcing its absence reporting policy at least as late as July 2, when she signed her June timesheet which reflected absences without leave on June 4 and June 30. Nonetheless, approximately two days after signing her timesheet appellant decided to stay home to work on her house instead of coming to work until she could appropriately request vacation or other leave. Appellant failed to prove she had a valid reason for not obtaining leave.

Based on the above, it is unnecessary to determine whether or not appellant was ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Senior Personnel Specialist effective July 18, 2003, is denied.

 

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1. All reference is to the year 2003 unless otherwise specified.