Final Non-Precedential Decision Adopted: July 10, 2006

By: David A. Gilb, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 29, 2006, at Sacramento, California.

Appellant was present and was represented by Lois Kugelmass, Senior Labor Relations Representative, Service Employees International Union (SEIU).

Gerry J. Agerbek, 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 notified the appellant by mail on April 28, 2006 he was being automatically resigned effective May 15, 2006, for being absent without approved leave from April 11, 2006 through April 27, 2006. SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on May 5, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contended he had a valid reason for being absent, a valid reason for not obtaining leave, and that he was ready, able and willing to return to work. Appellant further contended that he was confused and hampered by the fact English was his second language.

Appellant testified there were a variety of reasons he was absent from work from April 11 through April 27.

Appellant lived with his mother. He had an argument with his mother on April 10. She threw him out of the house and he was homeless for some unspecified portion of time between April 10 through April 27. He intermittently slept in his car and stayed with a cousin and with his sister. He testified he was unable to work because he was looking for a place to live.

Appellant’s father died on December 13, 2004. He testified he was still recovering from this loss. Appellant is a member of the Hindu religion. He went to the temple for assistance in resolving his family issues and to help him reconcile with the death of his father. He violated one of his religious beliefs that dictates he could not eat beef. He was required to spend two days cleansing himself. He argued he could not work because he was seeking spiritual help to resolve his family issues and to pray for forgiveness of his violation.

Appellant felt he was “overloaded” with work in April 2006. He testified he “lost his focus” during that period and had no interest in working with people who were “part of his job.”

Appellant also testified he did not go back to work because he had been instructed to bring a doctor’s note excusing his absence and he did not have such a note.

Appellant provided a variety of reasons for not obtaining leave.

He argued he thought he had been granted leave. Appellant was supervised by three different supervisors under a program that was referred to as “cooperative supervision”. He could call any one of three supervisors to report his absence or request leave.

Appellant called a supervisor on April 10 to report he would not be at work because he was having back pain and to report he had gone to a chiropractor. The appellant was instructed to bring a note from the chiropractor when he returned to work.

Appellant called the same supervisor on April 11 at approximately 9:30 a.m. He reported he had been kicked out of his mother’s house and had slept in his car, but that he would attempt to come into the office later. The supervisor advised the appellant to call back to inform her whether or not he was coming to work. Appellant did not call back and did not report to work.

Appellant did not report to work or call to report his absence on April 12 or 13.

On April 14, the appellant called the same supervisor he had spoken to on April 10 and 11 to see if there was a check for him. There was no discussion with this supervisor of why appellant had not called to report his absence or why he had not reported to work.

According to the appellant, he went into the office on April 14 or 15 to pick up a check. He explained his homeless situation to a second supervisor and told her he needed “two or three days off.” According to the appellant, the supervisor said “okay.”

The appellant did not report to work and he did not call to report his absences at any time between April 17 and April 28. He did call on April 18 to again inquire about a check. He was informed by a supervisor other than the one he believed had approved his leave on April 14 or 15, that because he had not called in or provided any further explanation for his absences, an action was pending for his separation from State service.

Respondent mailed its notice of automatic resignation to appellant on or about April 28.

Appellant testified he understood his supervisor’s “ok” during the August 14 or 15 conversation to mean he was on an indefinite leave and did not have to call in or return to work until his supervisor called him to tell him he had to return. He believed this conversation shifted the responsibility for ensuring he came to work to his supervisor.

Appellant alternatively testified he knew he could not comply with DMV’s policy to obtain leave so he stopped reporting his absence. He testified DMV’s policy required an employee who had been absent for three (3) days to provide a doctor’s note. Appellant did not go to the doctor during the relevant period so he did not have the required doctor’s note substantiating his absence.

Appellant also testified he quit attempting to comply with any requirements to obtain leave because he had been notified he was being automatically resigned.

Appellant also argued he was confused about his situation, the types of leave available to him, and the requirements to obtain leave because English was his second language.

Appellant testified he is ready, able, and willing to return to work. He testified his family situation is more stable, and he has a place to live and a car. He also testified he was more motivated to perform his job now because he needs the money.

 

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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 provide a valid reason for being absent. There was no evidence appellant was homeless from April 11 through April 28 and needed this entire period to find a place to live. There was no evidence he was medically unable to work during this period. There was no evidence his presence was required at the temple for the 8 hours he would have spent at work from April 11 through April 28. Appellant chose not to come to work during the period of April 11 through April 28.

Appellant failed to prove by a preponderance of the evidence he had a valid reason for not obtaining leave. His argument he was granted leave based on an April 14 or 15 conversation with a supervisor was unsubstantiated. Appellant’s testimony regarding his discussion with a supervisor who allegedly approved leave for two or three days was unclear and imprecise. He could not recall what day he spoke with the supervisor; it was unclear if the supervisor allegedly granted leave for two days or three days; and it was unclear if the leave that was allegedly approved was for days the appellant had already been absent or for additional days of absence. There was no indication the appellant sought clarification of the supervisor’s remarks. The supervisor was not called to testify.

Appellant’s belief that the generalized conversation he allegedly had with the supervisor regarding “two or three days off” meant that he was forever relieved of his responsibility to report his absences or report to work until his supervisor contacted him was unreasonable and incredible. The appellant knew he was not exempt from all attendance requirements. He knew he was expected to bring a doctor’s note to substantiate his absence. Appellant voluntarily chose not to go to the doctor to obtain the required documentation. He chose not to obtain permission to be absent.

Appellant’s argument that he quit taking steps to obtain leave because he had been notified he was separated from service is without merit. Appellant was not notified he was being automatically resigned until after April 28, well after his last contact with respondent on April 18. Moreover, the appellant also testified he didn’t call to report his absence because at one point he had no interest in returning to DMV.

Appellant’s argument that he was hampered in his ability to obtain leave because English is his second language is also without merit. Appellant worked for respondent for over six years. During this time, he understood English well enough to be a productive employee who earned many accolades and satisfactory job performance appraisals in 2005. He also demonstrated he understood the attendance requirements well enough to improve his attendance in the past.

Appellant failed to prove he had a valid reason for not obtaining leave.

Because the appellant failed to prove he had a valid reason for being absent and a valid reason for not obtaining leave, it is unnecessary to determine if he is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Service Assistant (DMV Operations) effective May 15, 2006, is denied.

 

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1. All dates are 2006 unless otherwise indicated.