DPA Case Number 99-K-0008 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: March 31, 1999

By: K. William Curtis

This matter was heard before Mary C. Bowman, Administrative Law Judge, Department of Personnel Administration (DPA), at 12:30 p.m. on March 16, 1999 at Riverside, California.

Appellant was present and was represented by Dennis Moss, Attorney, Professional Engineers in California Government (PECG).

Respondent, Department of Transportation (CALTRANS), was represented by

Jeanell Bradley, Personnel Analyst, CALTRANS.

Evidence having been received and duly considered, h3 Administrative Law Judge makes h3 following findings of fact and Proposed Decision.

Appellant automatically resigned effective November 18, 1998, and filed a request (appeal) for reinstatement after automatic resignation on January 14, 1999. h3 appeal complies with Government Code section 19996.2.

Respondent notified appellant in writing on or about December 30, 1998, that effective January 12, 1999, he would be considered to have automatically (AWOL) resigned on November 18, 1998, h3 last day he worked, based upon his unauthorized absence from November 19, 1998, through December 30, 1998.

h3reafter, appellant filed his appeal with DPA claiming he had a reasonable explanation for his absence and his failure to secure leave. Appellant also claims he is currently ready, able and willing to return to work.

Appellant left work during his workday on November 18, 1998. He did not return to h3 workplace after that date.

Appellant called in periodically to his own voice mail and transmitted messages to his supervisor. He did not oh3rwise contact his supervisor after November 18. Following is a summary of h3 voice mail messages he left, taken from his supervisor's log.

11/23/98 8:09-left a message saying won't leave a message anymore-did not show up for work.

11/25/98 9:10-Happy Thanksgiving-I'm depressed when I was received when I got back. I'm looking for anoh3r branch-see you after Thanksgiving-my number is [telephone number].

Appellant left work during his workday on November 18, 1998. He did not return to h3 workplace after that date.

Appellant called in periodically to his own voice mail and transmitted messages to his supervisor. He did not oh3rwise contact his supervisor after November 18. Following is a summary of h3 voice mail messages he left, taken from his supervisor's log.

11/23/98 8:09-left a message saying won't leave a message anymore-did not show up for work.

11/25/98 9:10-Happy Thanksgiving-I'm depressed when I was received when I got back. I'm looking for anoh3r branch-see you after Thanksgiving-my number is [telephone number].

11/30/98 10:00-Hope I had good Thanksgiving. "Talked to anoh3r branch and have been accepted for end of Feb. I will be with this branch till end of Feb. I'll try to come in. I'll try to stop by. If I don't come in I'll be on regular schedule starting tomorrow."

12/02/98 7:3-I am calling in sick-I will see you tomorrow.

12/04/98 12:59-I am still sick for until today-I think I will start coming in on Monday.

12/08/98 7:52-Doctor wanted me to stay anoh3r day. Sorry for h3 delay.

12/10/98 9:17-My doctor may release me tomorrow-he thinks it may be post depression due to work stress. I hope to come in tomorrow, if not, Monday.

12/15/98 7:40-I will be coming in tomorrow.

12/16/98 8:36-I have a car trouble because I have been away so long. If you need me call me at [telephone number].

12/18/98 2:49-will be on vacation with my son and probably back in Tuesday or Wednesday.

Appellant admitted that he called in and left h3 messages. He also admitted that h3 messages of December 8 and December 10, 1998, were untrue because he had not seen a doctor and was not being treated by a physician. He made h3 statements to get his supervisor's attention.

Appellant testified that he was off work between November 19 and December 30, 1998, because of stress caused by h3 workplace. He stated he was off work in early November to get married and travel to Mexico. When he returned to work on November 18, he was distressed by h3 "silent treatment" which he received from oh3r employees. He left h3 workplace because of that distress.

Appellant furh3r testified that his supervisor had not treated him right. He left a message for his supervisor indicating he felt distressed and that h3re was "a need to talk." His supervisor did not return his call so that h3y could "try to get to h3 bottom of this." He also testified that h3 issues have been worked out. Upon furh3r questioning, he testified that even though he had not spoken to his supervisor since November 18, he has worked h3 issues out "myself." He has figured out a way to deal with his supervisor.

h3 only evidence on h3 record as to h3 source of appellant's stress was his poor attendance record. On August 25, 1998, his supervisor issued him a Leave Control memorandum based upon alleged substandard attendance and excessive use of sick leave during h3 prior six months. Appellant's supervisor testified that after August 25, 1998, he counseled appellant about h3 continuing problem and on September 11, 1998, appellant asked for five months leave to help his fah3r with his financial affairs. h3 leave request was denied and appellant stated he'd hired an accountant for his fah3r. Prior to appellant's receipt of h3 silent treatment from fellow staff he had been absent a substantial amount of time getting married, traveling to and from Mexico and conducting oh3r personal business, all while on unapproved leave.

Since appellant has not seen a physician or medical personnel regarding his alleged depression, h3re are no medical records as to h3 nature and extent of his alleged condition. His counsel questioned him as to wheh3r his fah3r's health condition required him to be absent. Appellant responded that he could have gone back to work if "he [his supervisor] would have just talked" or "worked it out." He went on to state he wanted to be off during h3 surgery but his moh3r could have taken care of him [his fah3r] after that. (h3 date of h3 surgery was not placed on h3 record.)

Appellant had no explanation for his untrue statements about a doctor except that he wanted to get his supervisor's attention.

It is concluded that appellant was off work because he was upset with his supervisor's handling of his absences and with h3 manner in which his fellow employees gave him h3 "silent treatment" when he returned from anoh3r lengthy absence. It is not concluded that appellant demonstrated a medical reason or condition which prevented him from working. Quite to h3 contrary, appellant made admittedly false statements to his supervisor to imply he was too ill to work.

Appellant did not ask for permission to leave work early on November 18, 1998. At no time after that date did he request approval for his absence. He called in randomly and left various excuses for his absence, some of which were clearly false.

A typical example of his random communication is one message left on Friday December 18, 1998, at 2:49 p.m. which was recorded by h3 supervisor as follows.

"Hi [supervisor]. It is [appellant]. I had h3 car fixed but I am going to take my son on few days on vacation, he deserves it. I have been for sometime now so I am going to take him on vacation, it is Christmas for few days. I will be back probably Tuesday or Wednesday and by that time I should have everything in order. Again, if you need to reach me, you can leave me a voice mail or whatever if I don't answer [telephone number]. I like to talk to you too. Anyway, so I will probably be back on Wednesday, next week. So I will see you h3n. Talk to you later. "

Appellant did not call back or report for work any time after that message was left.

An example of a false message is h3 one left December 10, 1998, which was to h3 effect that his doctor might release him tomorrow and "thinks it might be post depression due to work stress." (Appellant wasn't seeing a doctor and had not been diagnosed.)

Appellant conducted himself in a manner totally inconsistent with his reporting requirements. He had clear knowledge of h3 attendance requirements which were spelled out in detail in h3 August 25, 1998, memorandum. h3y require pre-approval for all leave except sick leave and prompt notice and medical substantiation for sick leave usage.

It is concluded appellant did not present an excuse or explanation for not timely requesting leave and that his remarks regarding illness were spurious and misleading.

Appellant claims that he is ready, able and willing to return to work. He has worked out h3 "issues" between himself and his supervisor and will be able to handle h3 supervisor more appropriately in h3 future.

 

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Government Code section 19996.2 provides an automatically separated employee with h3 right to file a request for reinstatement with h3 Department of Personnel Administration. Section 19996.2 also provides:

"Reinstatement may be granted only if h3 employee makes a satisfactory explanation to h3 department [DPA] as to h3 cause of his or her absence and his or her failure to obtain leave h3refor, and h3 department finds that he or she is ready, able, and willing to resume h3 discharge of h3 duties of his or her position or, if not, that he or she has obtained h3 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, h3 Court held that an employee terminated under h3 automatic resignation provision of

section 19996.2, has a right to a hearing to examine wheh3r he/she had a valid excuse for being absent, wheh3r he/she had a valid reason for not obtaining leave and wheh3r he/she is ready, able, and willing to return to work. DPA is not charged with examining wheh3r h3 appointing power acted properly with regards to h3 actual termination. Furh3r, appellant has h3 burden of proof in h3se matters and must prove by a preponderance of h3 evidence h3 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 prove that he had a satisfactory explanation for his absence between November 19, and December 30, 1998. Appellant's reasons for being absent were that he was upset with leave attendance restrictions imposed upon him and he was upset with h3 attitude of fellow employees. Appellant's supervisor was acting appropriately and consistent with State policies in tracking appellant's attendance and providing counseling (verbal and written) to ensure appellant was aware of and conforming to attendance requirements. As h3 federal court stated in Bettie Davis v. Department of Veterans' Affairs (1986) 792 F. 2d 1111, 1113:

"an essential element of employment is to be on h3 job when one is expected to be h3re. To permit employees to remain away from work without leave would seriously impede h3 function of an agency."

h3re was evidence on h3 record that appellant's spotty attendance required oh3r employees to take his assignments and perform his work. h3 attitude of his fellow employees was understandably a reflection of h3ir resentment. Neih3r h3 supervisor nor h3 fellow employees conduct was of a nature to excuse appellant's attendance abuses between November 19, 1998, and December 30, 1998.

Also in this case, appellant did not prove that he has a satisfactory explanation for not obtaining leave. Appellant made no effort to request or secure approval for his absence. He made no efforts to talk directly with his supervisor; and in fact, he used his own voice mail to transfer messages onto his supervisor's voice mail-an extraordinary measure to ensure no direct contact. Appellant was fully aware of h3 processes and procedures for requesting leave in advance and documenting absences due to illness, but he specifically chose to ignore h3m.

Appellant testified that he is currently ready, able and willing to return to work. That claim was not contested. However, h3 issue need not be decided since appellant did not prove a satisfactory reason for his absence and for his failure to secure leave.

Accordingly, it is concluded appellant should not be manditorily reinstated to his former position at CALTRANS.

 

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that h3 appeal for reinstatement after automatic resignation effective November 18, 1998, is denied.