Final Non-Precedential Decision Adopted: April 12, 1999

By: K. William Curtis, DPA Chief Counsel

This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 25, 1999, at Sacramento, California.

Appellant was present and was represented by Kathleen O’Connor, Labor Relations Representative, California State Employees Association (CSEA).

David Beales, Staff Counsel, represented the Department of General Services (DGS), respondent.

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

Appellant automatically resigned effective January 29, 1999, and filed a request (appeal) for reinstatement after automatic resignation on February 22, 1999. The appeal complies with Government Code section 19996.2.

Respondent notified appellant in writing on or about February 9, 1999, that effective February 23, 1999, she would be considered to have automatically (AWOL) resigned on January 29, 1999, based upon her absence without leave from February 1, 1999, through February 9, 1999. Thereafter, appellant filed her request for reinstatement with DPA. Appellant claims that she was unable to work because she injured her leg and her supervisor would not have allowed her to perform light duty. She claims she was unable to obtain leave because she was incarcerated and not allowed to make anything but collect calls, which DGS would not accept. Finally, appellant claims she is ready, able and willing to return to work.

Appellant injured her leg after work on or about Friday, January 29, 1999. The cause of the accident is uncertain. Appellant told the ALJ she hurt her leg weeding in the garden. Her brother testified she hurt it helping move a boat.

On Saturday, January 30, 1999, appellant was transported from her home in Elk Grove to a location off Richards Boulevard in Sacramento to be drug tested by the Sheriff’s Department. On Sunday morning the Sheriff’s Department arrested appellant because she failed the drug test. (At the time of the drug test appellant was on home detention for a crime or crimes relating to drug usage. As a condition of home detention she was required to be drug tested every Saturday and to satisfactorily pass the test.)

Appellant was jailed from Sunday, January 31, 1999 through approximately Saturday, February 20, 1999, when she was again released on home detention. Since her release appellant has worked as a receptionist in a hair salon.

Appellant admits she was incarcerated between February 1 and February 9, 1999. However, she claims that even if she had not been incarcerated, she would not have been able to work because her supervisor would not have allowed her to perform light duty work and the injury to her leg prevented her from standing the requisite number of hours to complete her eight-hour shift.

Appellant presented medical records from the jail and from Kaiser Permanente to support her claim of a debilitating injury. The jail records show that a medic and a doctor examined her while incarcerated. Both noted a substantial bruising (no breaking of skin) of her leg from knee to ankle. The leg was x-rayed and showed no breakage. The medical record for February 5, 1999, says “extensive bruising, leg tender only at swelling.” It also says “gait-normal” and “right leg contusion.” The only medication given appellant was Motrin and diabetes medication. Appellant visited Kaiser Permanente on February 22, 1999. The doctor noted “s/p leg trauma and hematoma?” He restricted her work day between February 22 and March 2, 1999, as follows: stand/walk 2 hours a day, sit 3 hours a day, and drive 2 hours a day. The treatment was “ice/elevate.”

Appellant’s supervisor testified that if appellant had been otherwise available to work, DGS would have arranged light-duty work at the personal computer. However, DGS was never advised by appellant or anyone calling for her that appellant sustained an injury which affected her ability to stand or sit for long periods of time.

The evidence established appellant was off work from February 1 through February 9, 1999, because she flunked a mandatory drug test and was incarcerated.

Appellant claimed she was unable to contact her supervisor and obtain emergency leave because she could only make collect calls from the jail. It was undisputed that DGS does not accept collect calls from employees off work.

A Mailing Machines Supervisor testified that on February 1, 1999, at approximately 6:45 a.m., he received a voice mail from appellant’s brother requesting a week’s emergency leave for appellant and advising he would call back. The supervisor immediately forwarded the message to appellant’s supervisor.

Appellant’s supervisor testified that after she got the voice mail, she spoke directly with appellant’s brother. He requested a week’s emergency leave for appellant. He said it had something to do with her detention. He did not mention any injury. The supervisor advised him appellant would have to personally call to request emergency leave.

Also on February 1, 1999, at approximately 9:45 a.m. respondent was advised by the Sheriff’s department that appellant was incarcerated. At approximately 10:30 a.m., appellant’s supervisor received a call from appellant’s boyfriend, who works at DGS. He stated appellant was jailed on January 31 and requested emergency leave on her behalf. The supervisor informed the boyfriend that appellant was on unapproved leave without pay and could be automatically resigned if she did not return within five-working days. She also advised him that DGS would not allowed leave for jail time.

On or about February 10, 1999, the supervisor received a three-way call from appellant and her brother, which the brother had arranged. The supervisor advised appellant that a notice of automatic resignation had been served by mail on February 9, 1999.

Appellant’s brother corroborated he placed the calls. His recollection of the February 1, 1999 conversation with the supervisor differed substantially. He testified he asked for emergency vacation and explained appellant was injured. The supervisor asked if appellant was incarcerated. He responded he “didn’t know.” Then, the supervisor advised him she could not grant that time to him and appellant, herself, would have to call. He also testified that during the three-way call, the supervisor told appellant she “had to have her in before Friday” or appellant would lose her position. (If the call was placed on Tuesday, February 8 or Wednesday, February 10, his testimony appears inaccurate, since appellant’s notice was mailed February 9 and Friday had already passed.)

Appellant testified she thought the three-way conversation was on Tuesday, February 9. However, she recalled that the supervisor said the five days were up and the termination notice had gone out.

Appellant’s supervisor testified that workplace needs required appellant’s presence. Vacation leave is granted and approved in advance to ensure adequate coverage. When there is adequate coverage for the workload, an employee can request and obtain approval for emergency vacation leave. Vacation leave is discretionary with the employer. At the time the appellant was absent, her services were required because of others on approved leave.

The evidence established that once appellant was incarcerated, appellant had little or no opportunity to speak directly to her supervisor and request leave. However, it was equally clear that any grant of leave would have been permissive with DGS. DGS was not required to give last minute vacation leave to appellant so appellant could serve her jail time. The supervisor advised both appellant’s brother and boyfriend it would not be granted for that purpose when the request(s) was (were) made.

It is also concluded, based on the evidence provided that appellant’s claim that she was medically unable to work was an after-the-fact rationalization to establish a legitimate reason for obtaining approved leave. DGS’s denial of appellant’s leave request was within its discretion.

It was undisputed 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 Department of Personnel Administration. 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 prove a satisfactory reason for being off work and not obtaining leave. Appellant was off work because she failed to comply with the conditions of her home detention program and because she was incarcerated from January 31, 1999, and February 20, 1999. Respondent denied appellant leave because DGS has a policy of not granting vacation leave to individuals who are incarcerated, when their presence is required in the workplace to assure the performance of assigned duties. DGS had discretion to deny a last minute request of this nature. Accordingly, appellant’s request for reinstatement should be denied.

 

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that the appeal for reinstatement after automatic resignation effective January 29, 1999, is denied.