Coleman v. Department of Personnel Administration

• Decision Date: 25 February 1991
• Docket Number: No. S004129,S004129
• Citation: 278 Cal.Rptr. 346,805 P.2d 300,52 Cal.3d 1102
• Parties: , 805 P.2d 300, 59 USLW 2537, 6 IER Cases 365 Stanley COLEMAN, Jr., Plaintiff and Appellant, v. DEPARTMENT OF PERSONNEL ADMINISTRATION, Defendant and Respondent; DEPARTMENT OF GENERAL SERVICES, Real Party in Interest and Respondent.
• Court: California Supreme Court

Page 346

278 Cal.Rptr. 346

52 Cal.3d 1102, 805 P.2d 300, 59 USLW 2537, 6 IER Cases 365

Stanley COLEMAN, Jr., Plaintiff and Appellant, v. DEPARTMENT OF PERSONNEL ADMINISTRATION, Defendant and Respondent;

DEPARTMENT OF GENERAL SERVICES, Real Party in Interest and Respondent.

No. S004129.

Supreme Court of California.

Feb. 25, 1991.

Gary P. Reynolds and Robert L. Mueller, California State Employees Ass'n, Alameda, for plaintiff and appellant.

Talmadge R. Jones, Christine A. Bologna, Tamara J. Pierson, Victor J. James II and M. Jeffrey Fine, Dept. of Personnel Admin., Legal Div., Sacramento, for defendant and respondent and real party in interest and respondent.

KENNARD, Justice.

The abstract words of the due process clause of the United States Constitution have engendered many controversies; but it is beyond dispute that the government may not deprive an individual of life, liberty, or property without notice and opportunity to respond, in a manner "appropriate to the nature of the case." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865.)

The due process issue we address here is what procedural safeguards, if any, the state must afford a permanent civil service employee when it exercises its statutory authority to treat the employee's unexcused absence from state employment for five consecutive working days as an "automatic resignation." The statutory authority in question is provided by subdivision (a) of GOVERNMENT CODE SECTION 19996.2¹ (hereafter section 19996.2(a) or the AWOL statute). ² Although the AWOL statute entitles an employee who has been determined to have resigned to seek reinstatement, and to obtain a hearing on the request for reinstatement, it does not entitle the employee to any notice or opportunity to respond before the state's determination of resignation, nor does it provide for a hearing after the resignation takes effect at which the employee may challenge the resignation.

The interest of a permanent or tenured civil servant in the continuation of his or her employment is a vested property interest qualifying for protection under the Constitution's due process guaranty. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206, 124 Cal.Rptr. 14, 539 P.2d 774.) Yet the Courts of Appeal have rendered conflicting decisions on the requirements of due process in the context of the We base our resolution of this issue on our analyses of the AWOL statute itself and of pertinent decisions of the United States Supreme Court, and on our assessments of the employee's private interest in retaining employment and of the public's interest in promptly removing from the state payroll those employees who are absent without leave. We conclude that before the state invokes the AWOL statute, due process requires that it provide the employee with notice and an opportunity to respond. But because a constructive resignation under the AWOL statute differs significantly from a dismissal for cause, we also conclude that due process does not require that the employee be given a postseverance evidentiary hearing.

AWOL statute. Some have held that due process does not require any form of notice or hearing before the employment relationship is severed upon occurrence of the conditions set forth in section 19996.2(a). Others have equated the statute's "automatic resignation" with a termination for cause, and have concluded that it is subject to the same due process requirements of pretermination notice and posttermination evidentiary hearing.

BACKGROUND

On April 18, 1984, Stanley Coleman, Jr., who had been employed by the State of California as a telecommunications assistant in the Department of General Services for approximately one and one-half years, became ill and fainted after an argument with his supervisor. The next day, Coleman sought medical treatment.

For the next two months, Coleman received nonindustrial disability benefits (§ 19878 et seq.). On June 15, 1984, the Employment Development Department (EDD) terminated the benefits; Coleman, however, did not return to work.

On July 3, 1984, Coleman told his supervisor over the telephone that he had received EDD's notice of termination of benefits, that he thought it was a mistake, and that he would discuss the matter with EDD. On July 18, 1984, when Coleman still had not returned to work, his supervisor tried to reach him by telephone, without success. The next day, the Department of Personnel Administration (hereafter Department) notified Coleman in writing that under section 19996.2(a) his unauthorized absence was deemed an "automatic resignation" from state employment.

Coleman requested reinstatement. Section 19996.2(a) allows reinstatement if the employee gives "a satisfactory explanation" for the unapproved absence and there is an administrative finding that the employee "is ready, able, and willing to resume the discharge of the duties of his or her position." At the administrative hearing on his reinstatement request, Coleman testified that he had not gone back to work because he thought he would continue to receive disability benefits.

The hearing officer denied Coleman's request for reinstatement. He rejected Coleman's version of the facts, finding that Coleman did not have a valid excuse for not returning to work and that Coleman had failed to make the requisite showing he was "ready, able, and willing" to resume his duties. The Department adopted that ruling.

Coleman filed a petition for administrative mandamus in superior court. He challenged on due process grounds the constitutionality of the AWOL statute's "automatic resignation" provision, and sought reversal of the Department's order denying him reinstatement, asserting that the order was unsupported by the weight of the evidence. The superior court rejected the claims, and denied the petition.

Coleman sought review in the Court of Appeal, which affirmed the judgment of the superior court. The Court of Appeal rejected Coleman's procedural due process challenge to the AWOL statute, holding that due process does not require the state to provide an employee with notice or an opportunity to be heard before treating the employee's unauthorized absence for five consecutive working days as an implied or constructive resignation. We granted Coleman's petition for review.

DISCUSSION

A. Section 19996.2(a)

Relying on Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 and Skelly v. State Personnel Board, supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, Coleman contends that an "automatic resignation" under section 19996.2(a), based on an unauthorized absence of five consecutive working days, is no different from, and thus requires the same procedural protections as, a dismissal for cause. A brief overview of the relevant statutory scheme is necessary to place Coleman's due process challenge in perspective.

Section 19996.2(a), the AWOL statute, provides that an employee's "absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked." ³ The employee's unapproved absence is deemed to be an abandonment of employment or a constructive resignation. (Baker v. Wadsworth (1970) 6 Cal.App.3d 253, 263, 85 Cal.Rptr. 880 [construing a similar local civil service rule].) Although some courts have characterized this abandonment of employment as "evidencing an intent to resign" (Zike v. State Personnel Board (1983) 145 Cal.App.3d 817, 821, 193 Cal.Rptr. 766; see also Baker v. Wadsworth, supra, 6 Cal.App.3d at p. 263, 85 Cal.Rptr. 880), the AWOL statute provides that the unauthorized absence "whether voluntary or involuntary ⁴ ... is an automatic resignation."

As mentioned earlier, section 19996.2(a) allows for reinstatement. A grant of reinstatement, however, does not set aside the resignation. Rather, a reinstated employee is restored to his or her former position with the same rights of tenure and seniority, but is not entitled to any salary "for the period of his or her absence or separation or for any portion thereof." (§ 19996.2(a); compare § 19996.1, subd. (a) [providing that a resignation obtained under duress is to be "set aside" and permitting an award of back wages].)

The AWOL statute on its face does not provide for notice or an opportunity for the employee to be heard before the deemed resignation takes effect, nor does it provide for any hearing at which the state must prove the facts underlying the constructive resignation. Coleman contends that the lack of these procedural protections violates due process and is therefore unconstitutional. As he notes, an employee dismissed for cause is constitutionally entitled to these protections. (See Skelly v. State Personnel Board, supra, 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774; Kirkpatrick v. Civil Service Commission (1978) 77 Cal.App.3d 940, 945, 144 Cal.Rptr. 51.)

B. Procedural Due Process

The Fourteenth Amendment to the United States Constitution "places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of 'property' within the meaning of the Due Process Clause." (Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30; accord Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491; Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 276, 146 Cal.Rptr. 208, 578 P.2d 925.) The California Constitution contains a similar provision. (Cal. Const., art. I, § 7, subd. (a); Garfinkle v. Superior Court, supra, at p. 281, 146 Cal.Rptr. 208, 578 P.2d 925.)

Property interests that are subject to due process protections are not created Only those actions that may fairly be attributed to the state, however, are subject to due process protections. (Shelley v. Kraemer (1948) ...