Final Non-Precedential Decision Adopted: March 26, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 8:50 a.m. on March 18, 2004, at Riverside, California.

Appellant was present and was represented by Paula J. Negley, Attorney, California State Employees Association (CSEA).

Terry L. Slover, Labor Relations Specialist, represented the Department of Developmental Services (DDS), respondent.

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

Respondent automatically resigned appellant effective January 9, 2004, for being absent without approved leave from January 3 through January 9, 2004. Appellant filed a request (appeal) for reinstatement on January 22, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she had a valid reason for being absent because she was on approved vacation leave; she had obtained prior approval for this vacation time; and, she was ready, able, and willing to return to work.

Appellant was absent from January 3 through January 9, 2003 because she believed she was on approved vacation leave and not expected back at work until January 11, 2004. Respondent argued it only approved appellant’s vacation leave through January 2, 2004. Appellant’s supervisor scheduled appellant to work on January 3, 2004 and the subsequent days she was charged with being absent without leave.

Appellant argued she did not need to obtain additional leave for the period January 3 through January 9, 2004 because her supervisor had already approved this time off as vacation leave.

Appellant submitted two requests for vacation. On or about September 10, 2003, she submitted a “Request for Time Off” to her supervisor asking for vacation from December 18, 2003 through January 3, 2004. When appellant did not receive feedback from her supervisor, she asked him about the status of her vacation. He told her he had lost the request and she should complete a second form.

Appellant recalculated her available vacation time and gave her supervisor a “Request for Vacation and/or Time Off” form. This time she asked for vacation from December 19, 2003 through January 10, 2004, with a return date of January 11, 2004.

The supervisor did not immediately respond to appellant’s vacation request. Appellant began to question him periodically about whether or not her request was going to be approved. She told him she needed to know whether or not her vacation was approved so she could purchase her nonrefundable airline ticket. At least one of her co-workers heard appellant ask the supervisor about the status of her vacation request in early November.

Appellant discussed her vacation plans with at least two of her co-workers. Both testified appellant told them she was on vacation until at least January 11 or 12, 2004. One co-worker testified she specifically remembered that appellant told her she was to be on vacation until at least January 12, 2004 because this was about two weeks later than she herself was scheduled to return from vacation. The co-worker was scheduled to return on January 2, 2004.

Appellant also discussed her vacation plans with two friends. Both testified they recalled seeing a half sheet of paper with boxes and signatures on it which approved appellant’s vacation time until January 11, 2004. One friend also testified that she and appellant discussed appellant’s loss of her trip itinerary and the document approving her vacation time. Both appellant and her friend testified that appellant’s brother stole appellant’s purse and destroyed the contents. The friend testified that this happened the week before appellant went on vacation on December 19, 2003.

The supervisor approved appellant’s vacation time on or about November 20, 2003. He testified the approved vacation time ran from December 18, 2003 through January 2, 2004.

Appellant bought her airline ticket on November 20, 2003, immediately following her supervisor’s approval of her time off. The ticket provided that she leave Palm Springs on December 19, 2003 and return to Palm Springs on January 7, 2004. Appellant returned to Palm Springs on January 7, 2004, but did not return to her residence until January 8, 2004. When she got home she found messages from her co-workers telling her she was scheduled to work beginning January 3, 2004. The co-workers were concerned when they saw this schedule because they knew appellant was going to be out of state on vacation during this time.

When appellant learned she had been scheduled to work, she immediately attempted to contact her supervisor. When she could not reach him, she contacted the lead cook. Appellant told the lead cook she had gotten messages saying she had to come back to work “early” from vacation. She asked if her supervisor was at work. The lead cook told appellant the supervisor would be in later and asked appellant if she wanted to leave a message for him. Appellant did not leave a message for her supervisor. On January 9, 2004, respondent mailed appellant notice that she was being automatically resigned.

Appellant reported to work on January 11, 2004. She stopped at the security desk before reporting to her work area. The security officer contacted the supervisor. The supervisor told appellant to contact the Labor Relations Officer. When appellant talked to the Labor Relations Officer, she was told she had been automatically resigned for being absent without leave.

Appellant argued she continued to be ready, able, and willing to return to work.

 

* * * * *

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.

Appellant proved she had a valid reason for being absent because she was on approved leave from December 19, 2003 until January 11, 2004. Appellant freely discussed her plan to be absent from the workplace until January 11, 2004 with her co-workers and friends. If she had planned to be gone in excess of her approved vacation time, it is illogical to believe that she would have freely and openly discussed this plan with her co-workers in the workplace prior to her departure. The ticket and itinerary presented by appellant shows that she purchased her airline ticket consistent with her understanding that she was on approved leave well past January 3, 2004.

In addition, two witnesses who were unfamiliar with the workplace procedures recalled seeing a half page form approving appellant’s vacation dates. The form described by these witnesses is consistent with that described by appellant as the second form she used to request vacation from December 19, 2003 until January 11, 2004. The witness’ descriptions are also consistent with the form appellant testified she received from her supervisor approving her request.

Although respondent presented a full page document bearing the supervisor’s signature approving appellant’s vacation from December 18, 2003 until January 3, 2004, there was no date on the form indicating when it was signed, approved, or given to appellant. The existence of this document is consistent with the appellant’s testimony that she did in fact complete such a form. It is also consistent with the supervisor’s testimony that he at some point approved the document. Although the supervisor testified he gave a copy of this document to appellant, this testimony is inconsistent with that of all other witnesses. Given the variety of forms being used to request leave, the fact that more than one employee requested leave during this December period, and the fact that appellant altered the dates of her original request, the supervisor’s recollection of what form he provided to appellant and his recollection of what dates he approved for her may well be clouded. Therefore, appellant has proven by a preponderance of the evidence that she had a valid reason for being absent.

Based on the above, appellant also proved she had a valid reason for not requesting additional leave because she thought she already had approval to be absent until January 11, 2004.

Appellant attempted to return to work on January 11, 2004. Respondent prevented her from doing so. There was no evidence rebutting appellant’s contention she is ready, able, and willing to return to work.

 

* * * * *

that the appeal for reinstatement after automatic resignation effective January 9, 2004, is granted. Respondent is to return appellant to work without back pay within three weeks of receipt of this decision and order.