Final Non-Precedential Decision Adopted: November 22, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on November 16, 2004, at Riverside, California.

Appellant was present and was represented by David Matanga, Labor Relations Representative, California State Employees Association (CSEA), Service Employees International Union (SEIU).

Jeanlaurie Ainsworth, Senior Staff Counsel, represented the Department of Social Services (DSS), respondent.

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

On September 14, 2004,1 respondent notified appellant he would be automatically resigned effective close of business September 28, for being absent without approved leave from September 7 through September 14. Appellant filed a request (appeal) for reinstatement after automatic resignation on September 27. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued he should be reinstated because he acted in good faith to contact his supervisor to report he would not be at work and he could be ready, able and willing to return to work if reinstated.

Appellant was arrested September 3 for possession of cocaine. He was incarcerated until September 15.

Appellant plead guilty to possession of illegal substances and was placed on probation and ordered to participate in a rehabilitation program. This was the third time appellant has been arrested for possession of illegal substances. He has participated in rehabilitation programs twice before.

Appellant did not have a valid excuse for being absent.

Appellant testified he believed that he could obtain leave by leaving a message for his supervisor saying he would not be in and then talking to any other employee to report his absence. He argued he met this requirement by leaving a voicemail message for his supervisor on September 7 and then contacting various co-workers on other work days to report his incarceration.

The Case Adjudication Bureau Chief testified that in order to obtain leave an employee must either speak directly to their supervisor or another supervisor; report the reason for the absence; and obtain leave approval. If a message was left for the employee’s immediate supervisor, another supervisor had to be contacted. Respondent refused to grant appellant leave because he was incarcerated. Appellant did not speak with any supervisors from September 7 through September 14 to report his absence or to request leave.

The Case Adjudication Bureau Chief also testified that it was DSS’ policy not to approve leave for absences due to incarceration. Appellant’s request for leave when he was previously incarcerated was also denied.

Appellant testified he is currently voluntarily enrolled in an in-patient rehabilitation program. He reported that this could be changed to an outpatient program that he could attend at night if he were reinstated. He contended he chose the in-patient rather than the outpatient program.

Although appellant asserted he was ready, able and willing to return to work, this basic assertion is an inadequate basis on which to deem appellant ready to return to work. He has previously, unsuccessfully undergone two prior rehabilitation programs. He apparently believes he requires intensive assistance and immersion in a rehabilitation program in order to succeed this time. There was no reliable evidence regarding appellant’s participation in a program, his progress to date, or his immediate availability for reinstatement.

 

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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 he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Appellant failed to prove he had a valid reason for being absent or a valid reason for not obtaining leave. Incarceration based on appellant’s admitted illegal activity is not a valid reason for being absent. Appellant failed to obtain leave because respondent has a policy of not granting leave when employees are incarcerated. Even if respondent did not have such a policy, appellant failed to follow the required leave reporting and requesting procedure.

Appellant also failed to prove he is ready, able and willing to return to work. There was no reliable evidence on which to assess appellant’s required participation in the program, his rehabilitation progress, or his availability to return to work.

 

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that the appeal for reinstatement after automatic resignation effective September 28, 2004, is denied.

 

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1. All dates are 2004 unless otherwise indicated.