CalHR Case Number 20-O-0030
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted
By: Eraina Ortega, Director
PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge III (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. on June 29, 2021, in Sacramento, California. The appellant, was present and represented by Michelle Henson, Staff Attorney, Service Employees International Union (SEIU Local 1000). Leslie Meek, Employee Relations Officer, California Correctional Health Care Services (CCHCS) represented CCHCS, respondent. All parties appeared telephonically.
I JURISDICTION
On May 8, 2020, California Correctional Health Care Services (CCHCS), respondent, notified the appellant, he was being automatically resigned for being absent without leave (AWOL) from May 2, 2020 through May 8, 2020. Appellant filed a request for reinstatement appeal with CalHR on May 19, 2020.
California Government Code section 19996.2 authorizes CalHR, after timely appeal, to reinstate an employee after automatic resignation if he makes a satisfactory explanation as to the cause of his absence and his failure to obtain leave and CalHR finds he is ready, able, and willing to resume the discharge of the duties of his position. The appeal complies with the procedural requirements of Government Code section 19996.2. CalHR has jurisdiction over the appeal.
II PROCEDURAL HISTORY
On May 19, 2020, the appellant filed a request for reinstatement after automatic resignation appeal with the CalHR Statutory Appeals Unit (SAU). On May 28, 2020, the SAU issued a Notice of Time and Place of telephonic Pre-Hearing Conference for June 29, 2020. At the telephonic Pre-Hearing Conference, appellant’s representative, Kimberly Urie, Attorney, SEIU Local 1000, requested a continuance due to appellant’s pending criminal charges. The motion was granted and the appellant was advised to notify the SAU when ready to proceed.
On February 9, 2021, appellant’s representative, Michelle Henson, Staff Attorney, SEIU Local 1000, requested the matter be placed back on calendar. The telephonic Pre-Hearing Conference was set for March 22, 2021. At the March 22, 2021 telephonic Pre-Hearing Conference, the telephonic Evidentiary Hearing was set for June 29, 2021. This telephonic Evidentiary Hearing followed.
III ISSUES
The appellant argued he was wrongfully arrested and incarcerated, all charges were dismissed, and the AWOL separation should be rescinded and back pay awarded.
The respondent argued the appellant failed to report to work for five (5) consecutive days and the AWOL separation should be sustained.
The issues to be determined are:
1. Did the appellant have a satisfactory explanation for his absence for the period May 2, 2020 through May 8, 2020?
2. Did the appellant have a satisfactory explanation for not obtaining leave for the period May 2, 2020 through May 8, 2020?
3. Is the appellant ready, able, and willing to return to work and discharge the duties of a Registered Nurse, Correctional Facility?
4. Is the appellant entitled to back pay?
IV FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence. The appellant began his career with the State of California on May 10, 2010. On October 16, 2019, he was appointed to the State Personnel Board classification, Registered Nurse, Correctional Facility, at respondent’s Deuel Vocational Institution. The appellant worked the 2:00 p.m. to 10:00 p.m. shift from Wednesday through Sunday, with regularly scheduled days off (RDO) of Monday and Tuesday. He was supervised by a Supervising Registered Nurse II.
The appellant’s wife of approximately five years also works for respondent at its Elk Grove office, Monday through Friday, 8:00 a.m. to 4:00 p.m. After his shift on May 1, 2020, the appellant returned home at approximately 11:30 p.m. He went upstairs where his wife was in bed and an argument began over her cell phone involving allegations of infidelity and non-payment of the cell phone bill. The appellant took the cell phone off the charger on the bed-side table and went downstairs with his wife in pursuit.
The wife testified, that once downstairs, the appellant tried to drag her outside. The appellant denied this, testifying his wife attacked him and he ran from the house. The wife then called the police using her sister’s cell phone. A Stanislaus Deputy County Sheriff arrived on the scene to find an extremely upset wife who was difficult to understand between the tears.
The Deputy’s report indicates the appellant asked his wife for payment for her cell phone which lead to the struggle over the phone. During the struggle the appellant “pushed her towards a shoe rack in the closet causing her to loose (sic) her balance and fall onto the shoe rack.” After he was Mirandized, the appellant told the Deputy his wife “is clumsy and lost her balance,” and fell on the shoe rack. He was “not willing to pay for [the wife]’s phone which was being used to message her boyfriend,” and that, “the phone was his because of [the boyfriend]” incident.
The appellant’s wife testified she “just wanted her cell phone back,” and did not think her husband would be arrested. She does not recall asking for an Emergency Restraining Order (ERO). The Deputy does not recall if he asked her if she wanted an ERO, and it may have been issued without her input. In the early morning hours of May 2, 2020, the Deputy placed the appellant under arrest and charged him with 273.5(A) PC - Corporal Injury to a spouse because of “his wife’s visible injuries and complaint of pain.” His wife refused all medical treatment and on May 6, 2020, requested all charges be dismissed.
The appellant, who was only able to make collect calls from the jail, called the Staffing Office on May 2, 2020 with the assistance of a family friend. The Supervising Registered Nurse II (SRN II) sometimes works in the Staffing Office, where employees call to report they will not be reporting to work for illness or other reasons. The SRN II says the employee must call in to work to report their absence, but “if the staff is unable to call themselves,” a family member may call in an emergency situation.
On May 6, 2020, a friend of the appellant contacted respondent’s Staffing Office to report he had a family emergency and would not be reporting to work. She was told, “Okay, I will take him off the schedule.” The SRN II then sent the following email to various members of respondent’s staff: “FYI: Received call from appellant’s wife and said that he is calling in sick for the rest of the week non ILI and will be back on 5/13/2020. I told his wife for him to get a doctor’s note. Telestaff updated.”
On May 7, 2020, the appellant was released from jail. On May 8, 2020, he called the Staffing Office and spoke with the Office Technician, Nursing-Staffing (OT). The OT told the appellant she already had someone covering his shift, but she could put him on for May 9, 2020. She covered the appellant’s shift, because respondent had taken him out of the rotation, because he was “coded” as sick. The appellant told her he was not sick, but rather it was a “family crisis.” The OT is not a supervisor and does not approve leave, and has never seen a case when emergency leave was not approved.
His supervisor testified he began calling the appellant on May 6, 2020, but was unable to speak to him until May 8, 2020. On May 8, 2020, the appellant told his supervisor he was ready to return to work, and she told him, “No,” and his time off had not been approved. She testified an employee must speak to another supervisor if the SRN is unavailable, yet admitted his Office Technician (OT) is authorized to take sick calls. She believes the call-in procedure is in writing, but none was proffered into evidence. She also admitted, in the case of an emergency, a family member may call to report an absence; then later testified, “it is not acceptable.”
On May 8, 2020, the respondent sent the appellant an AWOL letter invoked the AWOL statute for his absences from May 2, 2020 to May 8, 2020. This appeal followed.
V ANALYSIS
Generally referred to as the AWOL statute, Government Code section 19996.2, subdivision (a) states: “[a]bsence 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.” It is not disputed appellant was absent for more than five consecutive days as he was not at work from May 2, 2020 through May 8, 2020.
Government Code section 19996.2, subdivision (a) also provides: “[r]einstatement may be granted only if the employee makes a satisfactory explanation to the department [CalHR] 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.”
The appellant has the burden of proof in these matters and must prove each element of his claim by a preponderance of the evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
The appellant had a satisfactory explanation for his absence.
CalHR and the State Personnel Board (SPB) rely upon the non-precedential decision in Frank C. Santiago (1995) SPB Case No.: 35488, to determine whether or not to reinstate an employee who is absent from work due to incarceration. The decision states in relevant part:
“[i]ncarceration is not a satisfactory reason for being absent without leave unless the circumstances are beyond the control of the employee, such as arrest without just cause or innocence.”
In this case, all of the charges were subsequently dropped, and most importantly, the law “presumes a defendant to be innocent of crime.” (U.S. v. Cummings (1972) 468 F.2d 274.) The appellant proved by a preponderance of the evidence he had a satisfactory explanation for his absence.
The appellant had a satisfactory explanation for not obtaining leave.
As noted in the California Supreme Court case of Coleman v. DPA (1991) 52 Cal. 3d 1102,1120, “under the AWOL statute, there is express language in the statute allowing for reinstatement upon ‘satisfactory explanation’ for the unexcused absence.” In this case, notwithstanding the appellant’s arrest, the respondent approved his time off beginning May 2, 2020, when he called respondent’s Staffing Office with the assistance of a family friend.
Additionally, on May 6, 2020, another friend of the appellant called respondent’s Staffing Office and spoke with the Supervising Registered Nurse. She advised the caller, “Okay, I will take him off schedule,” and sent an email to respondent’s staff that the appellant “will be back on 5/13/2020.” By taking him “off the schedule,” she approved the appellant’s leave until May 13, 2020.
It was not until May 8, 2020, the appellant’s fifth day of absence, when his supervisor called him to tell him his absence of the last five (5) days had not been approved. A phone call on an employee’s final day of absence, is insufficient to undo its earlier leave approval. A “respondent cannot set forth the requirement for returning to work and when the employee complies, unilaterally change the requirement.” (Lemmons v. CDCR (2007) DPA Decision 07-L-0013.)
The appellant followed the requirements of the respondent when he called its Staffing Office to request emergency time off, was taken out of the staffing rotation and his shift was covered by other employees. The supervisor’s retraction of respondent’s leave approval on the appellant’s fifth and final day of absence was unreasonable, arbitrary and capricious. The phrase “arbitrary and capricious” has no precise meaning and is not defined in statute. However, conduct which lacks any reasonable basis or is without any rational support whatsoever may be considered to be arbitrary and capricious. (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57.)
Arbitrary and capricious also encompasses conduct not supported by a fair or substantial reason. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d. 398.)
There was no fair or substantial reason for the supervisor to undo the leave approval granted by a SRN II or the OT in the Staffing Office, particularly in light of his testimony that “the Staffing Office OT” is authorized to take sick calls from employees. The appellant did all he was required to do to obtain leave, attempted to report to work on the fifth day of absence, and proved by a preponderance of the evidence he had a satisfactory explanation for not obtaining leave.
The appellant is ready, able and willing to return to work.
The appellant testified credibly he is ready to return to the duties of a Registered Nurse, Correctional Facility, and the reason for his absence is no longer at issue as all criminal charges were dropped. The appellant proved by a preponderance of the evidence he is ready, able and willing to return to work as a Registered Nurse, Correctional Facility, at respondent’s Deuel Vocational Institute.
The appellant is entitled to back pay.
Government Code section 19996.2 states, “[a]n employee so reinstated shall not be paid salary for the period of his or her absence or separation or for any portion thereof.” There are certain exceptions, generally set out in the Memorandum of Understanding (MOU). The appellant’s MOU states, “[i]n any hearing of an automatic resignation (AWOL) pursuant to Government Code section 19996.2, the hearing officer shall have the discretion to award back pay.”
The appellant was AWOL separated by respondent effective May 1, 2020. His June 29, 2020 Pre-Hearing Conference was vacated due to his pending criminal charges, and was not requested back on the active calendar until February 9, 2021, indicating the criminal charges were no longer an impediment to his AWOL hearing. It should be noted, “[t]he Legislature has determined persons who are terminated as a direct result of their criminal behavior and incarceration are not ‘unemployed through no fault of their own.’” (Jefferson v. California Unemployment Ins. Appeals Bd. (1976) 59 Cal. App. 3d 72.)
However, because the respondent acted in an arbitrary manner in retracting its earlier leave approval and refused to allow the appellant to report to work on his fifth day of absence, he should be allowed back pay. Therefore, the appropriate measure of back pay under the circumstances is July 1, 2021 to August 31, 2021.
VI CONCLUSIONS OF LAW
The appellant proved by a preponderance of the evidence he had a satisfactory explanation for his absence. The appellant proved by a preponderance of the evidence he had a satisfactory explanation for not obtaining leave. The appellant is ready, able and willing to return to work. The appellant is entitled to back pay from July 1, 2021 to August 31, 2021.
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THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation from the position of Registered Nurse, Correctional Facility, with the California Correctional Health Care Services effective May 19, 2020 is granted. The appellant shall be reinstated to his former position within two weeks of this Order.
