Final Non-Precedential Decision Adopted: June 9, 2004

By: Michael T. Navarro, Director

This matter was heard before Wesley M. Travis, Jr., Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 5, 2004, at Riverside, California.

Appellant was present and was represented by Michael W. Shanahan, Attorney, California State Employees Association (CSEA).

Glenn C. Jones, Senior Counsel, represented the Employment Development Department (EDD), respondent.

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

Respondent automatically resigned appellant effective February 13, 2004, for being absent without approved leave from February 17, 2004 through February 23, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on March 5, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

By memorandum dated February 27, 2004, respondent notified appellant that effective February 13, 2004, he would be considered to have automatically resigned. Thereafter, on March 5, 2004, appellant filed his appeal for reinstatement with DPA challenging the accuracy of EDD’s factual basis in determining his AWOL status.

Appellant claimed he was absent because his 87-year-old brother who lives in Mexico became suddenly ill. He claimed that on February 6, 2004, at approximately 3:00 p.m., he was at work and received a telephone call from his sister who resides in Mexico City, Mexico. She informed appellant that their brother age 87 had a heart attack, had been placed in intensive care, was in critical condition. She requested that appellant come to Mexico immediately. Appellant left Los Angeles on Saturday, February 7, 2004, and returned from Mexico on February 25, 2004.

Respondent presented persuasive evidence that appellant purchased his airline ticket to Mexico City on January 22, 2004 for departure on February 7, 2004, 16 days prior to his brother’s alleged crisis and appellant’s sister’s alleged emergency telephone call. This evidence supports the fact the appellant’s alleged family emergency and alleged telephone call from his sister on February 6 was merely pretext, and his trip to Mexico was planned well in advance of the day of appellant’s alleged family crisis and his urgent need for a sudden departure.

Furthermore, although appellant presented a document at hearing purportedly authored by his brother’s attending physician in Mexico City, the document was unauthenticated. No doctor or other medical professional was called to testify as to its authenticity nor did appellant present any other reliable form of medical evidence. Thus, respondent’s timely motion to exclude the document was sustained for lack of proper foundation. Although several of appellant’s witnesses testified at hearing on his behalf, their hearsay testimony was unpersuasive. Therefore, appellant did not have a valid reason for being absent February 17 through February 23, 2004.

Soon after the alleged telephone call from his sister on February 6, 2004, appellant initiated a meeting with his unit manager and direct supervisor. Appellant explained the circumstances regarding his brother’s alleged medical condition. Appellant asked if he could take a leave of absence to visit and care for his brother in Mexico. Appellant also requested forms to file for leave under the Family Medical Leave Act (FMLA) to cover his absence.

The supervisor asked appellant how long he anticipated being absent. Appellant responded he would need two weeks and maybe a few additional days if his brother survived, or only one week and a few additional days if his brother passed away. The supervisor said he needed an exact time period from appellant. Appellant responded that he could not give him one. The supervisor told appellant to call on Monday morning, February 9, 2004, to discuss the length of time he needed for his leave of absence. Appellant claimed that his supervisor told him at some point during their meeting “not to worry but to handle his family’s crisis.” Appellant testified this statement gave him the “impression” that his supervisor had approved his request for a leave of absence.

Appellant also claimed that his supervisor informed him that since appellant was unsure how long he needed to visit his brother, the FMLA paperwork could be completed upon appellant’s return from Mexico. The supervisor testified that he was unsure whether or not appellant could use FMLA for the emergency and he told appellant that he needed to research the issue. He directed appellant to remain at work the rest of the day, approximately two more hours, and he would get back to him regarding whether FMLA could be used in this situation. As the supervisor suspected, he discovered appellant’s brother was not a qualifying family member for FMLA purposes. When the supervisor searched for appellant approximately five minutes after their meeting to inform him of his findings, he discovered appellant had already left the office despite his earlier instruction that appellant finish out the day.

Appellant claimed he spoke with his supervisor at 3:00 p.m. on February 6, 2004. He testified he cleaned out his desk, filled out Request for Leave documents stating the reason for the emergency, and left the documents in his supervisor’s in-basket. In support of his claim, appellant presented a copy of a Request for Leave document which was date stamped “020604.” Appellant testified that he date stamped these copies himself. Contrary to appellant’s testimony, the supervisor credibly testified he never received this Request for Leave document from appellant and that appellant left no other documents of any kind in his in-basket or on his desk pertaining to his request for a leave of absence. In addition, the Coleman Officer at appellant’s March 9, 2004 Coleman hearing, credibly testified that appellant stated during his Coleman hearing that he did not sign out on February 6, 2004, and he did not fill out any Request for Leave forms before leaving work early.

In addition, undisputed evidence was presented that appellant had prior knowledge that his brother’s illness would not qualify for FMLA. The Program Manager II credibly testified that appellant had attempted to use FMLA approximately two years earlier regarding a non-qualifying family member’s illness and appellant was informed at that time that only a parent, spouse, domestic partner, one’s own children or one’s self would qualify for FMLA. The Program Manager II also testified that the FMLA policy regarding qualifying members had remained the same since appellant’s last inquiry. Thus, the evidence established that appellant knew or reasonably should have known that his brother’s illness would not qualify for obtaining FMLA leave on this occasion.

Although appellant had not secured an approved leave of absence, he left on a flight for Mexico City on Saturday, February 7, 2004. Appellant did not call his supervisor on Monday morning as directed to further discuss his request for a leave. When the supervisor did not hear from appellant, he called appellant’s home on Monday, February 9, 2004, and again on February 11, 2004. On each occasion, the appellant’s home telephone rang several times but was unanswered. No answering machine recorded the calls. Appellant’s daughter testified that she was at appellant’s residence during appellant’s entire absence. She testified there was a working answering machine connected to the telephone line and that she received no phone calls from appellant’s supervisor. Her testimony was unpersuasive.

Appellant testified that he called his supervisor at work from Mexico on February 9, 2004, and February 17, 2004. He testified he left his supervisor two messages on his or “someone’s” answering machine informing him about his brother’s medical condition and that he needed to stay in Mexico longer. However, appellant’s claim was unsupported by the evidence. Appellant’s prior supervisor and current supervisor both credibly testified that appellant did not contact either of them or leave a message on either of their message recorders on February 9, 2004, February 17, 2004, or at any other time during appellant’s absence. Respondent received no contact from appellant from February 7, 2004 through February 27, 2004.

Appellant was still in Mexico and had yet to contact his supervisor when respondent made the decision to grant appellant approval for a one-week leave of absence. Since the supervisor had no other contact address, he sent appellant a letter to his residence on February 18, 2004, informing him of his approved one-week leave of absence and informing appellant that it was urgent that he contact him regarding appellant’s unauthorized absence for days after February 13, 2004. Appellant testified that he returned to California on Wednesday, February 25, 2004. However, despite the supervisor’s February 18, 2004 correspondence requesting urgent contact, appellant neither reported to work nor attempted to contact respondent on Thursday, February 26, or Friday, February 27.

Finally, appellant’s own testimony at hearing was inconsistent and uncorroborated by reliable or persuasive evidence. Thus, appellant failed to prove by a preponderance of the evidence that he had a valid reason for being absent for the relative time period.

The evidence was undisputed that appellant was 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 therefore, 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 had a valid excuse for being absent, whether he 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 had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Appellant failed to prove by a preponderance of the evidence that he had a valid excuse for being absent. Appellant’s own testimony was inconsistent and uncorroborated by reliable or persuasive evidence. Appellant failed to prove his absence was an emergency situation based on his brother’s illness. Appellant also failed to prove he had a valid reason for not obtaining leave. He failed to follow procedures by getting pre-approval before he left work. It was unreasonable for appellant to believe respondent would approve a leave of absence for an indefinite period on the spur of the moment without being able to assess workload issues resulting from appellant’s unanticipated absence. Appellant was absent for approximately three weeks without contacting respondent by letter, telephone or e-mail during the period of time he was in Mexico or immediately upon his return. Appellant did not have a valid reason for not obtaining leave.

Although appellant proved that he was ready, able and willing to return to work, this issue is moot because appellant failed to prove the first two prongs required for granting reinstatement.

 

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that the appeal for reinstatement after automatic resignation effective on February 13, 2004, is denied.