DPA Case Number 01-L-0109 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: February 4, 2002

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 28, 2002, at Sacramento, California.

Appellant was present and was represented by Chris Codiroli, Labor Relations Representative, Professional Engineers in California Government (PECG).

Anita Appiano, District 4 Personnel Liaison, represented the Department of Transportation (CALTRANS), respondent.

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

Respondent automatically resigned appellant retroactive to August 22, 2001, for being absent without approved leave from August 23 through September 18, 2001. Appellant filed a request (appeal) for reinstatement after automatic resignation on October 2, 2001. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.

Appellant submitted his original appeal by e-mail on October 2, 2001. It was received at DPA on October 5, 2001. In his appeal, he stated that he was absent because of a family emergency and because he needed time to deal with is mother’s death. He also stated he had a satisfactory explanation for not having obtained leave and is currently ready, able, and willing to return to work.

Appellant took vacation leave in early July 2001 to go to Vietnam and visit with his ill mother. While he was in Vietnam, his mother died. Her death certificate indicates she died in Ho Chi Minh City in late July. She died in her home due to “diseases of senility.” Appellant testified she died on July 23, 2001. Her death registration (which was filed on July 27) gives the date of death as July 27, 2001. It was not clear as to whether the death was actually reported to the “People’s Committee of the 5th Precinct” on that date or earlier.

Appellant was on approved leave for his first absence. He returned to work on August 8, 2001. Upon his return to work his supervisor asked him to provide a copy of his mother’s death certificate. He did not have one, but later obtained it and provided it to his supervisor.

Appellant testified that he was so emotionally stressed by his mother’s death that he had difficulty concentrating at work after his return to work on August 8, 2001. During the week of August 13, 2001, appellant spoke to his supervisor. He told his supervisor he found it hard to concentrate at work because of losing his mother. His supervisor told him about the Employee Assistance Program. Appellant was reluctant to go because he believed he would not be able to speak to a Vietnamese counselor. (Appellant is Vietnamese; and English is his second language.)

Appellant told his supervisor he was thinking about taking some time off as a leave of absence to go back to Vietnam. His supervisor told him he would be more than happy to process the paper work. He told appellant how to obtain the forms to request leave.

Appellant obtained and completed a leave request form. On the form, he indicated he was seeking leave because his mother had just died and he could not concentrate and because he needed to take care of business relating to his mother’s death by returning to Vietnam.

Appellant testified that he flew to Vietnam on August 23, 2001, to visit with the family and to take care of personal business, including the sale of his mother’s home. While he was in Vietnam on or about September 22 or 23, 2001, his sister called him from the States to tell him he had a letter advising he was automatically resigned.

The undisputed reason appellant was absent from work from August 23 through September 18, 2001, was to deal with his grief over his mother’s death and to return briefly to Vietnam to take care of family business.

Appellant and his supervisor testified that they talked sometime around the week of August 13, 2001. At that time appellant told his supervisor about his grief over his mother’s death. He said he was unable to concentrate and wanted to take a leave of absence to return to Vietnam.

Appellant’s supervisor told him to go to the Human Resources Office and obtain a leave form.

Appellant went to the Human Resources Office and obtained the form. He completed the form by hand. He placed his name and position number in the appropriate boxes. He addressed it to his supervisor. On it he also stated “I am requesting leave a Leave of Absence beginning “8/23/01” and “ending 10/01/01.” He stated, “I will return to pay status on 10/1/01.” He also stated:

“This request is made for the following reason: My mother just passed away. I can’t concentrate on my work. Also, I have some business need to be take care back in my country due to my mother’s funeral. Thank you for your understanding.”

Although the entire document was handwritten, appellant failed to sign and date it before he submitted it to his supervisor on August 21, 2001. The supervisor testified that when he was given the form, he did not notice appellant hadn’t signed it.

Both appellant and his supervisor acknowledged appellant gave the supervisor the form after August 13, 2001. The supervisor told appellant he would take it to the Office Chief for approval and get back to him.

Shortly afterwards, appellant’s supervisor returned the form to him and told him he needed to sign and date it. He also told him he should attach a letter to the form.

Appellant testified that he signed and dated the form and then returned it to his supervisor’s desk. He did not attach a letter.

Neither the supervisor nor the Office Chief ever got back to appellant or approved the leave. On August 21 and 22, 2001, appellant looked for his boss to check on the status of the leave request. His boss was on vacation, but appellant did not know that. He waited. On August 22, 2001 at 4:22 p.m., he sent an e-mail to his supervisor. The e-mail stated:

“As I mentioned with you, I want to take a leave without pay due to my mom passed away. I want to know the status of it. I can’t concentrate on my work anymore. I need to take a break due to metal [sic] problem. I have to leave on 8/23/01 to go back to my country to take care of some bussiness [sic] back there due to my mother’s funeral. Please let me know ASAP so I can know what to do. What is my status right now. Thanks a lot.

Please email me back at liemtle@yahoo.com because I can’t check my mail in lotus note.”

The supervisor did not respond. The supervisor did not return to work until August 27 or August 28, 2001. He never responded to appellant’s e-mail request of August 22, 2001, even though it contained appellant’s home e-mail address.

Appellant’s supervisor testified that the written leave request was not granted because the Office Chief rejected it as incomplete on two bases. First, he rejected it because it was not signed and dated. Second, he rejected it because all the other requests he had seen were accompanied by a letter justifying the reason.

After the supervisor gave the form back to appellant he made no attempts to follow through with appellant by discussing the matter further with him. He just went on vacation.

The supervisor did not recall getting a signed copy back from appellant. He did not find one when he returned from leave.

The parties stipulated appellant is 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 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/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 that 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.

Appellant proved by the preponderance of the evidence that he had a satisfactory reason for being absent from work. The reason was that his mother had died in Vietnam and he was grieving and confused. He also needed to go home to Vietnam to take care of business associated with her death. Appellant’s supervisor did not object to the request per se. The lack of approval was to form only. As the supervisor stated in a memorandum dated September 12, 2001, “[Appellant] told me that he was thinking about taking some time off as Leave of Absence to go back to Vietnam. I told him that I would be more than happy to process the paperwork.” Accordingly, it is found that appellant’s reason for leave was not only satisfactory but compelling.

Appellant also proved that he had a satisfactory reason for not having obtained leave before he left for Vietnam on August 23, 2001. Appellant made substantial efforts to follow the processes required to obtain an approved leave. He spoke candidly on more than one occasion with his supervisor telling him about his confusion, his grief, and his desire to go home to Vietnam briefly. His supervisor and the Office Chief were well aware that appellant wanted to take a leave of absence commencing August 23, 2001. Their only objection was apparently to the form of appellant’s request. Appellant failed to affix his signature and date to the form. That oversight could have been cured instantaneously with a little cooperation from the supervisor. The request that appellant attach a letter as well was unreasonable.

This is not the usual case where an employee leaves before permission is received. Appellant was emotionally fragile and appeared to be getting little cooperation from those supervising him, when all that was really needed was his signature. (The supervisor could have dated the form since he was aware of the date it was submitted.) Appellant thought he had signed the document and was not getting a response. Accordingly, it is concluded appellant had an exceptional and reasonable explanation for not having obtained leave.

The parties stipulated appellant is ready, able and willing to return to work.

For the reasons set forth above, appellant should be reinstated to his position as Transportation Engineer (Civil) with CALTRANS.

 

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that the appeal for reinstatement after automatic resignation effective August 22, 2001, is granted. Appellant should be reinstated no later than 10 working days following a decision in this matter.