Final Non-Precedential Decision Adopted: December 18, 2006

By: David A. Gilb, Director

A hearing was held on December 7, 2006 in Sacramento, California. Appellant was present and was represented by Jake Hurley, Legal Representative, Service Employees International Union (SEIU). Kathryn A. Clark, Staff Counsel, represented the Employment Development Department (EDD), respondent.

On September 7, 2006, respondent notified appellant by mail that he was being automatically resigned for being absent without leave (AWOL) from August 28, 2006 through September 6, 2006. SEIU filed an appeal on appellant’s behalf on September 20, 2006.1 The appeal complies with the procedural requirements of Government Code section 19996.2. DPA has jurisdiction over the matter.

Appellant asserted he had a valid reason for being absent because he was unable to return from his vacation on the scheduled date. He argued he had a valid reason for not obtaining additional leave because communication was difficult and uncertain. He also argued he is ready, able, and willing to return to work. The appellant requested back pay.

Respondent countered that appellant did not have a valid reason for not returning from his vacation on the prescheduled date. It also posited appellant did not have a valid reason for not faxing documents to the respondent which would have provided a basis for obtaining leave approval. It was unrefuted that appellant was currently ready, able and willing to return to work.

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

1. Did the appellant have a valid reason for being absent from August 28 through September 6?

2. Did the appellant have a valid reason for not obtaining leave from August 28 through September 6?

The appellant was on approved leave from August 4 through August 27. He was scheduled to return to work on August 28.

Appellant went to Igero, Nigeria during his leave. Igero is a village of 8,000 to 10,000 people. It does not have reliable cell phone communication, telephones, or fax machines. The appellant did not have access to a telephone or a fax machine in Igero. To use a telephone or a fax machine, the appellant had to travel approximately 1.5 hours to Ado, Nigeria, the nearest community with potential communication abilities. There is a small hospital in Igero that consists of approximately 12 rooms. The hospital does not have a fax machine. Although Nigeria was the appellant’s childhood home, he had not been there for approximately 14 years.

Just before appellant’s vacation was scheduled to begin, his mother died. Appellant adjusted his original vacation request and traveled to Igero to attend his mother’s three day funeral. Shortly after his mother’s funeral, his 98-year-old father was admitted to the Igero hospital. Appellant’s father was diagnosed as having congestive heart failure. Appellant’s father was discharged from the hospital after four days. On August 21, the father’s doctor gave the appellant an “Excused Duty Certificate.” The Certificate excused him from work for two weeks, until September 4. The doctor recommended appellant spend time with his father. Appellant viewed his father’s prognosis as uncertain and on a “day-to-day” basis. The appellant intended to assume the care of his father while he was in Igero.

Appellant began feeling sick on August 21. He was worse on August 22 and went to the doctor. The doctor gave him some medication and told him to rest. Appellant did not rest on August 23. He felt worse. He returned to the doctor on August 24. By this time he was vomiting, weak, had a rash, and blister(s). The doctor diagnosed him with malaria. Appellant was bedridden on August 24, 25, and 26.

Appellant was originally scheduled to leave Igero to return to California on August 26. On or about August 25 he realized he would not be able to return on August 26. On August 25, his brother traveled to Ado to call the airlines for an alternative flight. The next available flight was on September 6.

Appellant was driven to Ado on Sunday, August 27. He called his supervisor on Monday, August 28, the day he was supposed to return from vacation. According to the appellant, he reported he was ill, his father had been hospitalized, and the soonest he could leave Nigeria was September 6. According to the supervisor, the appellant only reported his father was ill and did not mention his own medical condition. Also according to the supervisor, the appellant reported he would be at work on September 6.

During the August 28 conversation, the supervisor told the appellant he needed to fax in medical verification of his need to be absent and he also needed to bring copies of the medical documentation when he returned to work. The supervisor told the appellant if he did not fax in the documentation, he would be considered AWOL (absent without leave). It was undisputed the appellant told his supervisor during the August 28 conversation that he may have difficulty faxing her the information because communications were unreliable. The supervisor told the appellant it was very important that he fax the information and said something to the effect that he should “try to fax them in.”

Appellant returned to Igero on August 28 and went to the doctor to obtain the medical information required by his supervisor. The doctor told the appellant he would send someone to Ado to fax the medical information to the supervisor. Appellant did not communicate with his supervisor after August 28.

Appellant went back to the doctor on September 4. He had recuperated from his illness and was discharged from subsequent care. Appellant asked his doctor if the fax had been sent. The doctor indicated he had sent someone to Ado to fax the documentation but he was unsure if it “went through.”

Respondent did not receive faxed medical information covering appellant’s absence beginning August 28. Respondent mailed appellant’s notice of automatic resignation on September 7.

Appellant departed Nigeria on September 6 and arrived in California in the evening on September 7. Appellant reported to work on September 8. He brought the medical documentation of his illness and that of his father as requested by his supervisor. He also brought documentation of his travel dates.

A second supervisor who had not previously communicated with the appellant about his absence, told the appellant he was to go home. Appellant attempted to show his documentation to the second supervisor, but she had been instructed to send the appellant home and therefore she did not want to review the documentation.

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.

4. Section 6.13 of the Memorandum of Understanding between the State of California and the State Employees International Union for the period relevant to this case gives the ALJ discretion to award backpay:

“In 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. Once adopted by Department of Personnel Administration, the hearing officer’s decision with respect to back pay shall be final and is neither grievable nor abitrable under any provision of this Contract, nor may it otherwise be appealed to a court of competent jurisdiction. This provision does not alter or affect the right to bring a legal challenge or appeal of the other aspects of the hearing officer’s decision as provided in law. This does not otherwise limit or expand any other authority of the hearing officer under Government Code section 19996.2.”

The appellant proved by a preponderance of the evidence that he had a valid reason for being absent. His father was ill, the treating physician prescribed and recommended that appellant remain with his father for two weeks through September 4, and the appellant was unsure of his father’s prognosis. Appellant’s timely return from his vacation was also complicated by his own illness.

The appellant also proved by a preponderance of the evidence that he had a valid reason for not obtaining leave. This case is unique. Appellant was a victim of the lack of technology in a remote location. He traveled 1.5 hours to call his supervisor on the day he was expected back to work. When instructed to fax documentation, he forewarned his supervisor that faxing documentation would be difficult because of communication problems in that area. Appellant took steps to comply with his supervisor’s instructions and have the documentation faxed to the supervisor. Appellant followed his supervisor’s instructions and had the documentation supporting his emergency leave with him and ready to present when he returned to work. However, before reviewing the documentation brought by the appellant, respondent instituted the automatic resignation even though it had been forewarned that technology may be a barrier to complying with the supervisor’s faxing instructions. Appellant had a valid reason for not obtaining leave under the circumstances of this case.

Even though the appellant had a valid reason for being absent and a valid reason for not obtaining leave, he will not be awarded back pay. The employee is not entirely blameless in this case. Although his remote location and the lack of technology were the major factors in his automatic resignation, the appellant abdicated his responsibility for ensuring his employer got timely medical notification on which to grant him leave. Appellant knew his leave approval was dependent at least in part on faxing in the requested documentation. However, the appellant relied on the doctor to fax the medical information and he did not inquire about the status of the fax information until September 4. This is six days after he had requested it be sent and 10 days before he actually returned to work. If appellant had assumed personal responsibility for ensuring this information was sent, he could have either sent his family members to attempt to fax the document a second time or at least called his supervisor to let her know he had attempted to fax the information, but had not been successful. Appellant was well aware of the communication difficulties and should have taken additional personal responsibility to ensure his supervisor knew he was attempting to comply with her instructions.

1. The appellant had a valid reason for being absent.

2. The appellant had a valid reason for not obtaining leave.

3. The appellant is ready, able, and willing to return to work.

4. The appellant is not awarded back pay.

Appellant’s appeal of automatic resignation effective August 28, 2006, is granted.

Respondent is to reinstate the appellant to the position of Disability Insurance Program Representative without back pay.

 

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1. All dates are 2006 unless otherwise indicated.