Final Non-Precedential Decision Adopted: November 22, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on September 7, 2005, at Sacramento, California. The record remained open until November 14, 2005 to allow appellant to provide a translation of a burial certificate and accompanying declaration.

Appellant was present at hearing and was represented by R. Robert Monterrosa, Attorney At Law.

Craig A. Seminoff, 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.

On June 29, 2005, respondent notified appellant he was being automatically resigned for being absent without approved leave from June 22, through June 29, 2005. Appellant filed a request (appeal) for reinstatement after automatic resignation on July 5, 2005.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued he should have been given leave under the Family Medical Leave Act (FMLA). He also argued he should have been granted leave pursuant to Section 8.3 (Bereavement Leave) of the 2003 through 2005 Memorandum of Understanding (MOU) between the State of California and the State Employees International Union (SEIU) covering State Bargaining Unit 15 which includes custodians and therefore appellant.

Appellant argued he had a valid reason for being absent because he was attending his father’s funeral in Tijuana, Mexico; and, on his return to Sacramento, he was keeping vigil in the hospital where his wife was recovering from an emergency operation.

Appellant claimed he had a valid reason for not obtaining leave because he left a message with an Office Assistant informing respondent he would be absent. He argued this message should be sufficient for him to obtain leave.

Appellant also argued he is ready, able, and willing to return to work.

As well as reinstatement, appellant also sought back pay.

Appellant testified he was absent on Wednesday, June 22, Thursday, June 23, and Friday, June 24 because he was in Tijuana, Mexico attending his father’s cremation ceremony. He was notified his father had died at approximately 3:00 p.m. on Wednesday, June 22. He and his family drove to Mexico that evening. His father’s ceremony occurred on Thursday, June 23. Appellant returned to Sacramento around midnight on Sunday, June 26.

Appellant testified he was absent on Monday, June 27 and Tuesday, June 28 because he was at the hospital with his wife. Appellant took his wife to Kaiser’s emergency room in the early morning hours of Monday, June 27, about a half hour after they returned from Mexico. She underwent surgery. Appellant remained at the hospital with his wife the majority of the time she was there on June 27 and June 28. Appellant’s wife was released from the hospital on June 28. Appellant attempted to return to work on June 29. At that time he was informed he had been automatically resigned.

Respondent’s April 2004 written policy required appellant to notify his supervisor of emergency absences. Appellant argued he attempted to comply with this procedure.

Appellant first attempted to report his absence to his immediate supervisor, by telephone at 4:46 p.m. on Wednesday, June 22. The supervisor did not answer and appellant did not leave a voice mail message.

When appellant was unable to reach the supervisor, he telephoned the Building Manager. A clerk, answered and told appellant the building manager had left for the day. Appellant told the clerk his father had died. He asked the clerk to relay a message to his supervisor saying something to the effect that either he would be in Mexico for five days and he would return to work after that or that he was taking five bereavement days and he would be in after that. Appellant also told the clerk he would try to call back with further details but if not, would “he” accept this telephone call as his “call in.” Appellant testified the clerk responded, “No problem.” The clerk told the supervisor on June 22 that appellant had called, that there was a death in appellant’s family, and that appellant would try to give the supervisor a call “as he headed toward the border.” Neither the supervisor nor the building manager received a call from appellant after appellant’s conversation with the clerk.

Appellant testified he tried to call the supervisor one other time on June 22 around 11:00 p.m. when he (appellant) was in San Yisidro, California. Appellant testified no one answered. He testified that because of the type of cell phone service he had, a Spanish operator came on the line and since he could not understand Spanish, the operator was of no assistance. Appellant further testified he attempted to contact the building manager sometime in the morning on Thursday, June 23. He again could not reach anyone. Appellant did not try to contact either the supervisor or building manager again until one-half hour prior to his shift when he attempted to return to work on June 29.

Appellant also argued he was distraught over the death of his father, his mother’s recent heart attack, and his wife’s illness. He further argued he has a learning disability and he wasn’t always given copies of directions regarding the procedures for reporting absences.

Appellant argued he 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 had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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. Therefore, DPA can make no determination in this case regarding whether or not appellant should have been granted leave pursuant to MOU section 8.3 or under the FMLA rather than automatically resigned.

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 proved he had a valid reason for being absent based on the death of his father and his wife’s illness.

He did not prove he had a valid reason for not obtaining leave. He testified he knew the procedures for obtaining leave. He signed a document on March 12, 2004 that clearly notified him he had to speak with his immediate supervisor when there was an emergency. Although this procedure was modified in April 2004, the requirement to notify appellant’s supervisor remained. Appellant’s argument that he believed his call to the clerk was sufficient to satisfy this requirement is not supported by appellant’s own statement that he would call back and his testimony that he attempted to continue to call both the building manager and the supervisor. Although appellant knew there was a possibility his call to the clerk was insufficient to obtain leave, appellant failed to call his supervisor when he returned to Sacramento to either advise him of his need for leave based on his wife’s illness or to ensure that his previous absences had been approved.

Appellant’s argument that his disability prevented him from obtaining leave is without merit as is his argument that he was too distraught to contact respondent. There was simply no objective evidence to support these arguments.

Based on appellant’s reasons for absence and the fact such emergencies have now passed, it is concluded he is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation from the position of Custodian effective July 19, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.