Final Non-Precedential Decision Adopted: March 21, 2005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 March 14, 2005, at Riverside, California.

Appellant was present and was represented by Lezlie Uko, Labor Relations Representative, Service Employees International Union (SEIU).

Terry L. Slover, Labor Relations Specialist, represented the Department of Developmental Services (DDS), respondent.

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

Respondent automatically resigned appellant effective December 10, 2004, for being absent without approved leave from November 23, 2004 through December 2, 2004. SEIU filed a request (appeal) for reinstatement after automatic resignation on December 20, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant alleged he had a valid reason for being absent; he had a valid reason for not obtaining leave; and, he was ready, able and willing to return to work.

Appellant is a physician in Egypt. He was absent from November 23 through December 2 because he was in Cairo, Egypt assisting with the care of his brother who had heart problems. Appellant worked with his brother’s doctor to diagnose and determine treatment for his brother.

While in Cairo, appellant also worked with lawyers and law enforcement to ensure the safety of his teenage daughter. Appellant’s daughter was called to testify. She testified she went to Egypt to meet a man she met through the internet. When she got to Egypt, the man convinced her to sign a document written in Arabic which he described as “an invitation to come to the United States.” Appellant’s daughter does not read Arabic. The document turned out to be a marriage certificate.

The daughter testified that after she signed the document, the man imprisoned her at a house in Cairo. She managed to clandestinely contact her aunt, a lawyer in Cairo, to explain her situation and ask that her father come to Egypt to exert his influence and right under Egyptian law as her guardian since she was considered a minor (under 21) at the time of the incident. There was no basis to dispute appellant’s reason for being absent.

Appellant knew about his daughter’s predicament on or about November 13, ten days before he left for Cairo on November 23. His November 23 departure was prompted by a call from his sister in Cairo at approximately 2:23 a.m.2 on that day. It was this call that informed him his brother had been taken to the hospital by ambulance and that he needed to come to Cairo to assist in the situation.

After receiving the call, appellant decided to leave for Cairo as soon as possible. He testified he attempted to call his supervisor but it was early in the morning and he could not reach him. Apparently appellant did not leave any messages with anyone regarding his absences nor did he attempt to call multiple numbers his supervisor made readily available.

Appellant asked his wife to call his supervisor. It was undisputed the supervisor talked with appellant’s wife at approximately 9:00 a.m. on November 23. Appellant’s wife told the supervisor her husband had to go to Cairo for a family medical emergency. The supervisor testified he told appellant’s wife that appellant himself had to call “the facility.” The supervisor also testified he told appellant’s wife that he “understood he (appellant) was leaving.” Appellant testified his wife told him she contacted his supervisor who said it was “ok.” Appellant did not attempt to contact his supervisor or anyone else at the facility again that day.

The supervisor testified he did not have the authority to approve a leave of absence. He testified he unsuccessfully attempted to contact appellant throughout the day. He finally reached appellant at approximately 4:38 p.m. while appellant was standing in line at the airport to board the airplane to Cairo. At that time the supervisor told appellant his leave was not approved and that he needed to contact the program office to get approval for a leave of absence. Appellant replied something to the effect he “would deal with that when he returned.” Although appellant was originally scheduled to return to California on December 8, he actually returned at approximately 11:00 p.m. on Thursday, December 2. He testified he returned earlier so that he could return to work.

Appellant never attempted to contact his supervisor while he was in Cairo. He also did not attempt to contact his supervisor on Friday, December 3. He learned he had been automatically resigned when he attempted to return to work on Monday, December 6.

Appellant testified without contradiction he 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 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. 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 proved he had a valid reason for being absent. Appellant’s brother’s medical emergency and appellant’s daughter’s predicament are a reasonable basis for appellant’s trip to Cairo and his absence from work.

Appellant also proved he had a valid excuse for not obtaining leave. Appellant was acting in an abbreviated timeframe in an emergency situation. He did not totally ignore his responsibility to report his absence to his supervisor. He reasonably believed his wife could report his emergency absence to his supervisor. There was no evidence that appellant had previously been informed otherwise. In this situation, the fact that appellant chose to defer addressing his lack of leave until after his return is understandable given the last minute leave refusal and instruction to contact the “program office.” In addition, his failure to contact his supervisor while in Cairo or after his return on Friday, December 3 is also understandable. While in Cairo, he was dealing with issues involving the mortality and physical safety of his family members. There was a ten hour time difference which also complicated contact. Also, contacting his supervisor would have been useless given the fact his supervisor told him he could not approve leave.

Appellant returned to California earlier than anticipated to deal with his work issues and he reported to work as soon as he was physically able considering the stress of travel and time difference. Appellant was ready, able and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective December 10, 2004, is granted. Respondent is ordered to return appellant to work within three weeks of receipt of this decision and order.

 

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1. All dates are 2004 unless otherwise indicated.

2. All time references refer to the time in California.