DPA Case Number 98-F-0109 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: September 22, 1998

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at 10:00 a.m. on August 10, 1998, at Sacramento, California.

Appellant was present without representation.

Andrew B. Pollak, Staff Counsel, represented the Employment Development Department (EDD), respondent.

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

Appellant automatically resigned effective May 21, 1998, and filed a request (appeal) for reinstatement after automatic resignation on June 15, 1998. The appeal complies with Government Code section 19996.2. The record remained open until close of business August 21, 1998, for the parties to submit written closing arguments.

On June 1, 1998, respondent mailed appellant a Notice of Automatic Resignation advising him that effective June 9, 1998, he would be considered to have automatically resigned on May 21, 1998, because of his unexcused absence from May 22 through May 29, 1998. On June 15, 1998, appellant filed an appeal claiming he had a reasonable explanation for being absent and not obtaining leave and he was currently ready, able and willing to return to work.

In January 1997 appellant and his wife began planning a vacation to visit relatives in England and Scotland. The trip was a family Christmas present. Also on January 31, 1997, appellant transferred to the Oakland Disability Office. Because of the new job and training, he determined it would be inappropriate to take the trip at that time; and the trip was put off to the next year.

In December 1997 appellant submitted a request to respondent for eleven days of vacation beginning May 15, 1998, and ending close of business June 1, 1998. Prior to making the request, appellant discussed the proposed trip with his supervisor and manager.

According to office policy, appellant was unable to make his request any earlier than December. He made the request to the supervisor in charge of the vacation schedule. On December 26, 1997, the supervisor granted the request for leave from May 15 through May 21, 1998 and for June 1, 1998. He did not grant the request for the middle period, May 22 through 29, 1998, which contained five additional work days. He placed appellant on waiting lists for those days as follows: 2nd on list for May 27 through May 29; 4th on list for May 22; and 6th on list for May 26. At the time the decision was made to grant appellant only pieces of his vacation request, he had been working four years for respondent and had accrued four weeks of vacation.

On January 26, 1998, appellant proceeded with his plans and paid $1,199.46 to Carlson Travel Agency to reserve his airline ticket. On April 1, 1998, he placed a deposit on a hotel room; and on April 10, 1998, he paid for a Heritage Pass for the trip. He was under the impression that if worse came to worse he could seek a formal leave for a period of unavailability. He continued to watch the lists.

Appellant’s status on respondent’s waiting lists had not changed by April 1998. On April 1, 1998, he wrote a letter to his manager requesting a leave of absence for the middle period of his planned trip (May 22 through May 29, 1998). He explained he needed to have sufficient time to travel to and from England. In his letter he stated he assumed the leave of absence would be granted because management still had six weeks to make preparations for his absence.

On April 10, 1998, the manager denied appellant’s request for a temporary leave of absence on the grounds that she allowed no more than two DIPRs to be absent from the office on any work day. The manager also cited office needs. Later in April respondent posted a May work schedule for the PI employees in the Oakland Office. Appellant was scheduled to work between May 22, and May 29, 1998.

On May 4, 1998, appellant sent another letter to his manager. In it he stated he was unavailable for work on May 22, 26, 27, 28 and 29, 1998. He again asked not to be scheduled for those days. He stated he had arranged for a DIPR from another office to fill in for him if his manager and the other manager agreed. (Some Oakland employees filled in for Santa Rosa employees previously during a staffing shortage.) He concluded, “I have exhausted all avenues conceivable in order to rearrange my schedule,” and “I am truly sorry for the inconvenience this may cause. Hopefully a replacement DIPR may help offset this inconvenience. Upon your request, I will let you know who it is that could fill in for me.”

The day before appellant was to leave on his vacation, the manager met with him. She stated his request had been denied due to “office needs.” She told him she would not approve having another DIPR fill in because they were now a hub office for Workers' Compensation claims. He asked her what the repercussions would be if he did not come to work. She indicated she would try to find out and get back to him that day. The manager did not get back to him.

On May 15, 1998, appellant left on vacation, as scheduled. The following day, the manager mailed him a memorandum warning him that his absence between May 22 and May 29, 1998, would be “unauthorized” and “subject to disciplinary action including separation based upon being absent without leave.” Appellant did not check his post office box upon his return from England on June 1, 1998, so he did not receive the letter until after he attempted to report for work on June 2, 1998.

Also while appellant was absent from work on June 1, 1998, the manager mailed appellant a notice of automatic separation, pursuant to Government Code section 19996.2. That section provides that absence from work without leave for five consecutive working days is an automatic resignation from State service as of the last day on which the employee worked. The five-day period identified in appellant’s notice was May 22, through May 29, 1998.

Appellant returned to work on June 2, 1998, and was handed a second copy of the automatic resignation notice.

Appellant testified that he chose to take the additional time off (between May 22 and 29, 1998) and run the risk of being charged with two waivers, pursuant to DPA Rule 599.828. He was unaware that he could be automatically terminated for five consecutive days of absence, pursuant to Government Code section 19996.2.

Government Code section 19996.2 provides in relevant part:

“Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last day on which the employee worked.”

DPA Rule 599.828 provides:

“In addition to the provisions of Government Code Section 19996.2, an intermittent employee who waives three requests by the employing department to report for work may be automatically separated from the intermittent appointment, provided that no waiver shall be counted if the employee was unable to come to work due to illness or other good reason (i.e., a reason that is acceptable to the appointing power).”

Appellant testified that prior to coming to the Oakland office, his former manager permitted intermittent employees to notify him about periods of unavailability and then the manager would refrain from scheduling the intermittent employees for those periods of unavailability. This policy is consistent with Article 18 of the bargaining agreement between the State of California and the California State Employees Association, Bargaining Unit 1 (memorandum of understanding (MOU)). The MOU provides at Section 18.4 that upon mutual agreement, a department head may grant a PI employee a period of nonavailability not to exceed twelve months during which the employee may not be given a waiver. At the Oakland office, the manager did not permit formal unpaid leaves of absence for periods of temporary unavailability by a PI DIPR.

The leave policies adopted in the Oakland office were based upon office needs which were adversely impacted by understaffing, a department-wide freeze upon hiring and the recent conversion of the office to a Workers’ Compensation hub. The policies included a requirement that vacation leave be requested in the quarter preceding the leave usage and that it be granted by seniority. Another policy was that no more than two DIPRS would be granted leave on a single work day. Appellant was aware of these policies and was advised as early as December 1997 that his original leave request was affected by these policies because he had the lowest seniority in the office.

Appellant credibly testified he is ready, able and willing to return to work. Respondent did not dispute this testimony.

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Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the Department of Personnel Administration. Section 19996.2 also provides in relevant part:

“Renstatement 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 has 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 the he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

In this case respondent did not have an acceptable reason for being absent. A waiver of employment by a PI, pursuant to DPA Rule 599.828, is not an acceptable absence. It is a failure to report for scheduled work which is not due to illness or other good reason (i.e. a reason which is acceptable to the appointing authority). Appellant chose to take his vacation when he knew it would be unapproved. The fact that he discovered there was a graver consequence than he expected did not make his absence acceptable.

Also in this case, respondent did not have an acceptable explanation for not obtaining approved leave. Appellant disregarded seniority-based leave approval and the office needs, including the need to avoid short staffing by having more than two DIPRs absent from the Workers’ Compensation hub on a given work day. Further, the factors identified were not beyond appellant’s control. He knew in December that his request for extended vacation was denied. He continued with his planned vacation despite that knowledge. And, in early May 1998 his manager made it clear that failing to report to work on scheduled work days was “unacceptable.” Appellant’s concern was what the penalty would be for his failure to report, not how to resolve the problem.

Accordingly, it is concluded appellant has not met the burden of proof required and his appeal for reinstatement should be denied.

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that the appeal for reinstatement after automatic resignation effective May 21, 1998, is denied.