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DPA Case Number 99-G-0076 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 29, 1999
By: Howard Schwartz, DPA Chief Counsel


This matter was scheduled to be heard by Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on August 30, 1999. It was continued for good cause shown and heard by ALJ Bowman at 9:00 a.m. on October 18, 1999, at Sacramento, California.
Appellant was present and was represented by Peter Torres, Representative, National Association for the Advancement of Colored People (NAACP), Sacramento Branch.
Kaye Krumenacker, Senior Staff Counsel on August 30, 1999, and by Bernard Lu, Senior Staff Counsel on October 18, 1999, 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.


Appellant was automatically resigned effective May 29, 1999. She filed a request (appeal) for reinstatement after automatic resignation on July 6, 1999. A hearing was set for August 30, 1999. Appellant and her representative appeared at the hearing and requested that the matter be continued to provide appellant an opportunity to find a new representative. Up to that morning the California State Employees Association (CSEA) had represented appellant. The request was granted and, by agreement of parties, the matter was rescheduled for October 18, 1999.
At the hearing on October 18, 1999, appellant’s representative requested a second continuance in order for appellant to obtain new representation. He stated the NAACP Counsel had determined the prior day that appellant should recontact CSEA and demand representation. Respondent’s counsel opposed the request for a second continuance because appellant had already been given six weeks to obtain counsel and CSEA had already denied her representation on October 18, 1999.
The request for a continuance was denied for lack of good cause shown. The hearing went forward with Mr. Torres representing.
The appeal complies with the procedural requirements of Government Code section 19996.2.


Respondent notified appellant in writing on or about June 24, 1999, that effective July 2, 1999, she would be considered to have automatically resigned on May 29, 1999, based upon her absence without leave from June 1 through June 24, 1999.
Thereafter, appellant filed her appeal for reinstatement with DPA. The appeal did not identify the cause for appeal. At the hearing appellant claimed that she had a satisfactory reason for being absent and not obtaining approved leave because she was unfairly incarcerated. Neither party disputed that appellant is currently ready, able and willing to return to work.


On or about September 8, 1998, appellant was charged with drunk driving with a prior conviction, pursuant to Vehicle Code section 23152a. On or about January 22, 1999, she was convicted and the court imposed a 120-day jail term. The court offered appellant home detention in lieu of incarceration subject to two conditions, that she pay a fee and that she obtain the consent and approval of her employer.
Respondent approved her request to participate in home detention.
After appellant was placed in the Home Detention Program (HDP), she was required to periodically report to the HDP to pay fees and take urine tests. If she was going to be absent from work for any medical reason, she was also required to obtain permission.
On Sunday, May 30, 1999, appellant reported to the HDP. While waiting, she engaged in a verbal exchange with another female. As a result, an Officer approached her and directed her to the program office. She was charged with violating HDP rules W14.01 (Will Not Be Rude and Curse) and W14.02 (Will Comply with All Directions). A hearing was held and she was found guilty. She lost 10 days good time and was released from the HDP. Consequently, appellant was jailed from May 30, 1999 through July 6, 1999.
Appellant was absent from work between June 1 and June 24, 1999, due to her incarceration in the county jail and in Rio Consumnes Correctional Center.
Appellant testified that she was unjustly removed from the HDP and jailed. As a result, she seeks to have DPA find that she had a satisfactory explanation for having been absent, which was false imprisonment. Appellant testified that although she exchanged words with another female at HDP, the other female cause the disturbance by telling appellant she had to go outside and get in line. When she was approached by an officer and questioned about the exchange, she claimed he falsely accused her of arguing with him, which led to her arrest.
The officer’s version of the incident differed substantially from appellant’s version. According to his sworn statement, appellant was loud and argued with a number of the other inmates over line privileges and appellant was uncooperative when he approached her regarding her inappropriate conduct.1


Appellant was unable to call respondent directly to report her reason for being absent and to request leave for June 1 through June 24, 1999, due to her incarceration. The facility where she was incarcerated does not allow any outgoing calls unless they are made collect. Respondent admitted respondent does not accept collect calls.
Appellant indirectly communicated with respondent. Shortly after her incarceration, both her boyfriend and her baby’s father called her supervisor and advised the supervisor that appellant was in jail. One of them also requested approved vacation leave on her behalf for the period of her incarceration (37 days).
Respondent denied the request for approved vacation leave during the 37-day period of appellant’s absence because the request was not made prior to June 1, 1999, and because granting it would seriously disrupt the unit’s workload. Respondent’s policies require an employee to request vacation leave in advance (preferably at the beginning of the calendar year) and respondent retains discretion to make exceptions for the requested leave based upon the workload.
Appellant claimed that at least one other employee of respondent’s had been permitted to take leave for incarceration. Respondent admitted one employee was able to obtain leave, in advance, for future incarceration.


It is uncontroverted that appellant is currently 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 a request 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/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/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
In this case appellant did not provide a satisfactory explanation for her absence. Serving jail time for criminal misconduct is not a satisfactory reason for being absent. Further, although appellant claims she was unfairly stripped of the HDP and required to serve 10 days, the court records indicate conviction. DPA is without authority to relitigate the issues addressed by the county in sentencing appellant for criminal misconduct.
Also in this case, appellant did not provide a satisfactory explanation for not obtaining leave. Granted, appellant made efforts to comply with reporting requirements of the respondent after her incarceration. However, respondent has discretion to determine whether to approve or deny vacation leave, so long as it does not exercise that discretion in an unreasonable or discriminatory manner. Respondent had a long-standing policy of requiring its employees to request vacation leave in advance or be granted/denied it subject to the current workload.
No evidence was presented to indicate or imply respondent treated appellant in a discriminatory or disparate manner from other employees in applying its usual policies. In fact, the evidence was to the contrary, since respondent agreed to allow appellant to continue to work while in the HDP, even after her initial conviction. It was not unreasonable for respondent to deny a last minute request for over one month's leave because it was not timely and because of its potential to cause an adverse impact upon other workers and the overall workload.
It was undisputed that appellant is currently ready, able and willing to return to work.
For the reasons set forth above, the appeal should be denied.
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that the appeal for reinstatement after automatic resignation effective May 29, 1999, is denied.
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1. Both appellant’s testimony and the officer’s statement were unsubstantiated hearsay. Respondent submitted court records to establish appellant was convicted, placed in the HDP, and subsequently removed from the HDP (after a hearing regarding the above incident). The appellant served 37 days in jail based upon her drunk-driving conviction. Appellant acknowledged (corroborated) the authenticity of the court records submitted.
  Updated: 5/22/2012
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