Final Non-Precedential Decision Adopted: December 4, 2006

By: David A. Gilb, Director

On August 28, 2006, respondent notified appellant by mail that he was being automatically resigned for being absent without leave (AWOL) from August 14, 2006 through August 25, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

A hearing was held on November 13, 2006 in Riverside, California.

Appellant was present and represented by Rocio Y. Garcia, Attorney, Service Employees International Union, Local 1000 (SEIU). Eric Serrano, Spanish Interpreter/Translator interpreted the proceedings for the appellant. Craig A. Seminoff, Staff Counsel, represented the Department of General Services (DGS), respondent.

Appellant argued he had a valid reason for being absent because he was on approved vacation leave. He argued he had a valid reason for not taking additional steps to obtain leave because he believed he had already been given approval to be absent. He also posited that he was ready, able, and willing to return to work.

Respondent countered that appellant did not have a valid reason for being absent because appellant had been notified his request for approved vacation leave was denied. Respondent also argued appellant did not have a valid reason for not obtaining leave because his vacation request was denied and there was no emergency reason for his absence.

It was undisputed that appellant was ready, able, and willing to return to work.

Therefore, the only issues to be decided in this case are:

1. Did appellant have a valid reason for being absent from August 14 – 18?

2. Did appellant have a valid reason for not obtaining leave from August 14 – 18?

3. Did appellant have a valid reason for being absent from August 21 through August 28?

4. Did appellant have a valid reason for not obtaining leave from August 21 through August 28?

Appellant began working for the State of California and the DGS on October 1, 1983. During the relevant period, appellant worked as a Custodian headquartered at respondent’s Santa Ana facility. He was assigned to work at the Santa Ana Department of Motor Vehicles (DMV). His work shift was Monday through Friday from 4:00 p.m. to 12:30 a.m. He worked with a partner.

On or about June 7, appellant submitted a Leave Request Form to his supervisor for leave from August 14 through September 1 (15 days). In the past, appellant’s leave was approved either in writing or verbally.

The testimony regarding the events after appellant submitted his June 7 Request for Leave varied significantly.

The appellant testified inconsistently. He initially testified he spoke to his supervisor about his leave on or about June 30. Appellant testified his supervisor told him on June 30 he was going to approve the leave for two weeks and one day (11 days) instead of the 15 days the appellant requested because the supervisor “needed more people.” Appellant then changed his testimony and stated his supervisor told him he was approving his vacation for the entire 15-day period on June 30. Appellant later corrected his previous testimony by clarifying that the length of the vacation approval was not changed from 15 to 11 days until July 27 when he again spoke with his supervisor about approving his vacation. Appellant also asserted that at some point his supervisor indicated he would grant vacation if he completed some unspecified work project. Appellant’s testimony is unclear regarding when the supervisor allegedly conditioned the vacation approval on this work completion.

Appellant testified he purchased his airline ticket on July 11 based on his supervisor’s verbal approval of 11 days of vacation on June 30. Appellant testified he planned to depart for Mexico on August 11 and return in order to report back to work on August 29.

During cross-examination, appellant made still further changes to his initial testimony regarding his conversation with his supervisor on June 30. He changed the date of the conversation to July 30 instead of June 30. However, when examined about the date of the purchase of his airline ticket and the basis for that purchase, appellant recanted his testimony about his July 27 and July 30 discussions with his supervisor and he reiterated that he received verbal leave approval from his supervisor on June 30 for 11 days.

Appellant testified he never received a copy of his June 7 Leave Request Form that either approved or denied his leave and that he took his vacation based strictly on his supervisor’s verbal approval.

According to the appellant, he spoke with the Building Manager, his second level supervisor, on August 2 about approving his vacation. Appellant asked the Building Manager if he would sign the Leave Request Form. Appellant showed him the Leave Request Form and his plane ticket. The Building Manager told appellant he had to speak with his immediate supervisor.

It was undisputed that appellant spoke with his supervisor at the DMV on August 8. According to the appellant, the supervisor told him on that day that the project was finished and he could go on vacation for 11 days. In support of this contention, appellant called his work partner who overheard a portion of the August 8 conversation between appellant and his supervisor. Appellant’s work partner testified he heard appellant ask his supervisor something to the effect, “What happened to my vacation?” He heard appellant’s supervisor respond something to the effect, “You guys try to finish the job. I’ll take care of the vacation. No problem.”

According to appellant and his work partner, the appellant worked on August 10 and August 11, but he did not talk to his supervisor about his vacation after August 8.

Respondent’s supervisor’s and the Building Manager’s testimony were contrary to appellant’s testimony. The supervisor testified that when appellant presented the Leave Request Form on June 7, he told appellant he would consider the request but he could not approve it at that time because there was a staff shortage. The supervisor further testified that when he told appellant he could not immediately approve the leave, appellant continued to question him about why the request could not be granted. Appellant told the supervisor he needed to have vacation because he had “business” that needed his attention.

The supervisor asserted he denied appellant’s leave in writing and returned the Leave Request Form to appellant on July 7. The supervisor also asserted the appellant became upset and told the supervisor he had already purchased his tickets and made plans and that he had to go.

Contrary to the appellant’s testimony, the supervisor maintained he did not approve appellant’s leave on August 8. During the August 8 conversation, appellant asked his supervisor if his decision denying the vacation could be reversed. The supervisor told the appellant he would not reverse his decision but the appellant could go to the Building Manager.

According to the supervisor, he again spoke with the appellant on Friday, August 11 at 10:00 p.m. and again told appellant his leave was denied. The supervisor testified the appellant then told him the Building Manager had approved his vacation. The testimony of appellant’s work partner contradicted the supervisor’s testimony that he was at the DMV building and spoke with the appellant on August 11.

It was undisputed the appellant spoke with the Building Manager regarding his vacation request at some point before August 14. However, the Building Manager’s testimony about that conversation did not substantiate (1) appellant’s testimony that he asked the Building Manager to extend his vacation to 15 rather than 11 days, (2) that the supervisor told appellant his vacation would be approved if he finished a work project, or, (3) that the Building Manager approved appellant’s vacation. The Building Manager credibly testified the appellant asked him to approve his vacation in its entirely. The Building Manager told the appellant he would only override the supervisor’s denial of his vacation if the appellant could substantiate an emergency that required him to take the vacation. The appellant did not provide this substantiation. The Building Manager’s testimony is credited over that of appellant because the Building Manager’s testimony was consistent and his demeanor during his testimony was thoughtful and more precise as to both what he did and did not recall.

Appellant went on leave and did not work Monday through Friday, August 14 through August 18; Monday through Friday, August 21 through August 25; or on Monday, August 28.2

Appellant’s testimony regarding activity after August 14 was generally unrefuted by the respondent.3

On August 20, appellant’s brother called him in Mexico. Appellant’s brother told him he had to call respondent.

Appellant called the Building Manager on Sunday, August 20. According to the appellant, the Building Manager told appellant “they had problems” regarding his vacation. The Building Manager also told the appellant he should call the following day to speak with his immediate supervisor.

Appellant called the following day, Monday, August 21. He spoke with the Building Manager in the morning. The Building Manager told appellant to call back in the afternoon. Appellant called that afternoon and spoke simultaneously to his immediate supervisor and the Building Manager. Appellant told them he had received verbal approval for his vacation from his immediate supervisor and he had witnesses. According to the appellant, he told them if there was a problem, he would return to work the following day. The Building Manager asked appellant when he was planning to return to work. Appellant told him he was planning to return to work on August 29. The Building Manager ordered the appellant to call in every day. According to the appellant he called in as instructed except on August 23 when he sent a fax to the Building Manager in response to the Building Manager’s questions regarding business he was conducting in Mexico.

Appellant spoke with his immediate supervisor on or about August 24. The supervisor told appellant there were “some problems” and he had to talk to the Building Manager. Appellant then called the Building Manager. The Building Manager told appellant he had received some papers from his immediate supervisor and appellant’s fax. The Building Manager told the appellant he could not read the fax because it was in Spanish. According to the appellant, the fax involved a real estate transaction.

Appellant returned from Mexico on August 28. Respondent mailed the notice of automatic resignation on this day. Appellant received the notice of automatic resignation on August 29.

1. The appellant bears the burden of proof and the standard of proof is the preponderance of the evidence. (Aguila v. Atlantic Richfield (2001) 25 Cal. 4th 826.)

2. Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement:

19996.2. (a) 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.

A permanent or probationary employee may within 90 days of the effective date of such separation, file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing. Reinstatement may be granted only if the employee makes a satisfactory explanation to the department 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.

3. Pursuant to Government Code section 19996.2 and Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, DPA’s jurisdiction is limited to the following three issues:

(1) Did the appellant have a valid reason for being absent?

(2) Did the appellant have a valid reason for not obtaining leave?

(3) Is the appellant ready, able, and willing to return to work?

DPA is not charged with determining whether Government Code section 19996.2 was properly invoked.

Appellant failed to prove by a preponderance of the evidence that he had a valid reason for being absent and a valid reason for not obtaining leave for August 14 through 18. Appellant’s testimony was inconsistent and unreliable. He changed his testimony several times regarding when his supervisor allegedly verbally approved his vacation and how much vacation was allegedly approved.

In addition, appellant’s actions were inconsistent with his testimony. If his supervisor had indeed approved his leave request for 30 days on June 30 or July 30, he would have had no reason to contact the Building Manager for any approval whatsoever in August and no reason to continue to talk to his supervisor about his request in July or on August 8. He also would not have asked his supervisor, “What happened to my vacation” on August 8.

Furthermore, if the appellant had purchased his ticket on July 11 based on his supervisor’s approval of limited vacation time on June 30 or July 30, then his testimony regarding the purchase of the ticket and the approval of vacation based on completion of a project in August is inconsistent.

While the testimony of appellant’s work partner carries substantial weight, the work partner did not hear the supervisor approve appellant’s vacation and he did not hear the entire conversation between the appellant and the supervisor. In light of the multiple times appellant and his immediate supervisor and the Building Manager discussed appellant’s vacation, the supervisor’s August 8 remarks that were overheard by appellant’s work partner are not an adequate basis on which to find that a reasonable employee would automatically interpret these remarks without question or clarification as approving his vacation for 11 days.

Although the supervisor’s testimony was also not entirely credible, the appellant bears the burden of proof and he did not meet that burden for the five-day period of August 14 through August 18. Appellant did not prove he had a valid reason for being absent or a valid reason for not obtaining leave for August 14 through August 18.

However, the appellant did prove by a preponderance of the evidence he had a valid reason for being absent and he had a valid reason for believing he had approval to be absent for the period of August 21 through August 28. Appellant’s unrefuted testimony regarding his August 20 and August 21 conversations with his immediate supervisor and the Building Manager established that on August 21 respondent knew appellant was going to be absent through August 28. Instead of ordering the appellant to return to work, the Building Manager substituted a daily telephone call for appellant’s physical appearance at work.

According to appellant’s unrefuted testimony, appellant fulfilled this requirement except on August 23 when he complied with another of the Building Manager’s requests by faxing him documents regarding his leave activities. Thus, appellant had a valid reason for not being physically present at work, i.e. absent, and a valid reason for not doing anything else to obtain leave for the period of August 21 through August 28. Again according to appellant’s unrefuted testimony, he offered to return to work but was not told to do so. He reasonably interpreted this as granting him leave for the period of August 21 through August 28.

However, appellant’s contacts with respondent after August 20 and the Building Manager’s August 21 reporting instructions do not affect appellant’s unauthorized absence from August 14 through August 18.4

Appellant failed to prove by a preponderance of the evidence that he had a valid reason for being absent and a valid reason for not obtaining leave for August 14 through 18. Appellant’s testimony was inconsistent and unreliable. He changed his testimony several times regarding when his supervisor allegedly verbally approved his vacation and how much vacation was allegedly approved.

In addition, appellant’s actions were inconsistent with his testimony. If his supervisor had indeed approved his leave request for 30 days on June 30 or July 30, he would have had no reason to contact the Building Manager for any approval whatsoever in August and no reason to continue to talk to his supervisor about his request in July or on August 8. He also would not have asked his supervisor, “What happened to my vacation” on August 8.

Furthermore, if the appellant had purchased his ticket on July 11 based on his supervisor’s approval of limited vacation time on June 30 or July 30, then his testimony regarding the purchase of the ticket and the approval of vacation based on completion of a project in August is inconsistent.

While the testimony of appellant’s work partner carries substantial weight, the work partner did not hear the supervisor approve appellant’s vacation and he did not hear the entire conversation between the appellant and the supervisor. In light of the multiple times appellant and his immediate supervisor and the Building Manager discussed appellant’s vacation, the supervisor’s August 8 remarks that were overheard by appellant’s work partner are not an adequate basis on which to find that a reasonable employee would automatically interpret these remarks without question or clarification as approving his vacation for 11 days.

Although the supervisor’s testimony was also not entirely credible, the appellant bears the burden of proof and he did not meet that burden for the five-day period of August 14 through August 18. Appellant did not prove he had a valid reason for being absent or a valid reason for not obtaining leave for August 14 through August 18.

However, the appellant did prove by a preponderance of the evidence he had a valid reason for being absent and he had a valid reason for believing he had approval to be absent for the period of August 21 through August 28. Appellant’s unrefuted testimony regarding his August 20 and August 21 conversations with his immediate supervisor and the Building Manager established that on August 21 respondent knew appellant was going to be absent through August 28. Instead of ordering the appellant to return to work, the Building Manager substituted a daily telephone call for appellant’s physical appearance at work.

According to appellant’s unrefuted testimony, appellant fulfilled this requirement except on August 23 when he complied with another of the Building Manager’s requests by faxing him documents regarding his leave activities. Thus, appellant had a valid reason for not being physically present at work, i.e. absent, and a valid reason for not doing anything else to obtain leave for the period of August 21 through August 28. Again according to appellant’s unrefuted testimony, he offered to return to work but was not told to do so. He reasonably interpreted this as granting him leave for the period of August 21 through August 28.

However, appellant’s contacts with respondent after August 20 and the Building Manager’s August 21 reporting instructions do not affect appellant’s unauthorized absence from August 14 through August 18.4

1. Appellant failed to prove by a preponderance of the evidence that he had a valid reason for being absent from August 14 through August 18.

2. Appellant failed to prove by a preponderance of the evidence that he had a valid reason for not obtaining leave from August 14 through August 18.

3. Appellant proved by a preponderance of the evidence he had a valid reason for being absent August 21 through August 28.

4. Appellant proved by a preponderance of the evidence that he had a valid reason for not taking additional steps to obtain leave because he believed he already had been granted leave.

Appellant’s appeal of his automatic resignation effective September 13, 2006 is denied based on his absence from August 14 through August 18.

 

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1. All dates are 2006 unless otherwise indicated.

2. The ALJ took official notice of the days of the week in August 2006.

3. Appellant’s Exhibit F is a chronology of events that was unarguably composed by Respondent’s representative(s). However, it was admitted into evidence on a limited basis to substantiate minimal testimony regarding one of the referenced days. The author was unknown, the source(s) of the compiled information were not established and the date of composition was not provided. The document provided little relevant evidence in this decision.

4. To the extent the appellant argues he was not absent during the relevant periods in this case and the automatic resignation was improperly invoked, his remedy lies in another forum. (Coleman v. DPA (Supra) 52 Cal.3d 1102.)