CalHR Case Number 20-B-0060
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted March 23, 2021
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 February 11, 2021, in Sacramento, California. The appellant was present and represented by Brian Caldeira, Consultant, SEIU Local 1000. Amy Doyle, Attorney IV, Department of Health Care Services (DHCS), represented DHCS, respondent. All parties participated telephonically.
I JURISDICTION
On September 22, 2020, Department of Health Care Services (DHCS), respondent, notified the appellant, he was being automatically resigned for being absent without leave (AWOL) from September 14, 2020, through September 21, 2020. The appellant filed a request for reinstatement appeal with CalHR on October 5, 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 October 5, 2020, appellant’s representative, SEIU Local 1000, filed a request for reinstatement after automatic resignation appeal with the CalHR Statutory Appeals Unit (SAU), on behalf of the appellant. On October 15, 2020, the SAU issued a Notice of Time and Place of Telephonic Pre-Hearing Conference for November 9, 2020. At the Telephonic Pre-Hearing Conference, the Telephonic Evidentiary hearing was scheduled for February 11, 2021. This telephonic evidentiary hearing followed.
III ISSUES
The appellant argued the AWOL separation should be set aside because he had a satisfactory explanation for his absence.
The respondent argued the appellant failed to report to work at the expiration of his approved leave 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 September 14, 2020, through September 21, 2020?
2. Did the appellant have a satisfactory explanation for not obtaining leave for the period September 14, 2020, through September 21, 2020?
3. Is the appellant ready, able, and willing to return to work and discharge the duties of an Associate Governmental Program Analyst?
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 September 25, 2006. On April 1, 2019, he was appointed to the classification of Associate Governmental Program Analyst with respondent, Department of Health Care Services. His supervisor, Children’s Therapeutic Services Unit. The Chief, Continuum of Mental Health Care Section supervised the supervisor.
On August 17, 2020, the appellant texted his supervisor at approximately 10:30 a.m., to advise he needed to attend his brother’s August 24, 2020 funeral in Zambia, Africa. The supervisor, who was at the hospital for the birth of his child, told him to contact his supervisor, the Chief, and he would let her know to accommodate him. On the morning of August 18, 2020, the Chief spoke with the appellant and told him to provide the necessary documentation for his bereavement, vacation, and Emergency Paid Sick Leave Act (EPSLA) leave. EPSLA leave, a provision of the Families First Coronavirus Response Act (FFCRA) provides two (2) weeks of paid leave to individuals impacted by COVID-19.
At 3:43 p.m. on August 18, 2020, the Chief again requested the appellant provide the necessary documentation to justify his leave via email. The email advised the appellant she needed to receive a response before the close of business regarding his various leave requests. She told him his EPSLA leave request “for the period of 8/28/2020 through 9/16/2020 due to your child’s school/daycare closure, appears to be inconsistent with the information you provided to me this morning.”
On August 18, 2020, at approximately 5:15 p.m., the appellant sent an email to the Chief requesting time off from August 17, 2020 to September 16, 2020, but did not provide the necessary documentation. He requested bereavement leave from August 17, 2020 through August 21, 2020; vacation from August 24, 2020 to August 27, 2020; and EPSLA from August 28, 2020 to September 16, 2020. The appellant applied for EPSLA leave to care for his son and nephew during the global pandemic school closure.
The appellant’s August 18, 2020 email reiterated his EPSLA leave request, “because I intend to fly back in the country by 8/28/2020.” He also told her, “I will send my absent form request as you requested when I arrive at the airport or when I arrive overseas as I am rushing to catch my flight to avoid missing it.” The appellant testified his phone does not work in Zambia and he is unable to send texts or make phone calls, unless he travels to an Internet Café or chats with Whatsapp.[1] On August 19, 2020, th Chief sent the appellant an email and a text correcting his EPSLA leave approval period from August 28, 2020 to September 11, 2020, not September 16, 2020.
The appellant did not send the Chief the information he promised her when he arrived in Zambia, nor did he fly back to the United States on August 28, 2020. He remained in Africa on August 28, 29, 30, 31, 2020, September 1, 2, 3, 4, 5, 6, 7, 8, and 9, 2020, and did not indicate his purpose for doing so. On August 31, 2020, the Chief sent another email to the appellant reminding him his EPSLA leave would expire on September 11, 2020, and he was to return to work on September 14, 2020.
The appellant became ill in Africa on September 10, 2020. On September 11, 2020, family members took him to the hospital where he was admitted. He told his cousin to contact his supervisor. His cousin testified he sent a text message to the appellant’s supervisor on September 11, 2020 and left voice mail messages on September 14, 15, and 16, 2020. He believes because he did not receive a “bounce back” message, his messages were delivered. The Chief testified respondent’s Information Technology Division investigated these messages claims, and found no texts or phone calls from the appellant’s cousin’s telephone number.
The appellant was scheduled to report to work on September 14, 2020, but did not report to work as scheduled. His supervisor testified he never received any emails, texts or phone calls from the appellant, or anyone acting on his behalf, to extend his leave. At 8:37 a.m. on September 14, 2020, the supervisor sent an email to the appellant stating, “I haven’t seen the telework log this morning. I believe you are back today correct?” He did not receive a reply.
On September 15, 2020, the appellant failed to report to work as scheduled. The supervisor sent another email stating, “Checking in to see if you are back. Hope you are safe and well.” He also called the appellant’s cell phone, sent him personal and work emails, and told him he was AWOL for September 14 -15, 2020. The Chief then told the supervisor to try and contact the appellant through his emergency contacts. The supervisor called the appellant’s mother, whose phone was not accepting messages; and his sister, who did not return his voice mail message.
The appellant did not report to work as scheduled on September 16, 2020. The supervisor left messages on the appellant’s personal and work cell phones and told him he was AWOL. As of September 17, 2020, the respondent had no knowledge of the appellant’s whereabouts. The appellant did not report to work on September 17, 2020, and did not contact respondent to advise he would be absent. His supervisor called his personal cell phone and left the appellant a message to return his call as soon as possible, and advised he has been considered absent without leave (AWOL) since September 14, 2020. The Chief also sent messages to the appellant’s personal and work emails advising it was his fourth day of AWOL and that five days of AWOL is considered an automatic resignation from state service.
The appellant’s regularly scheduled day off was Friday, September 18, 2020. His Hospital physician, testified she treated the appellant while he was in the hospital, he received a negative COVID-19 test and was discharged on September 20, 2020. The appellant did not report to work on Monday, September 21, 2020 and did not call to report his absence. He testified he left Africa on September 21, 2020, and learned from his cousin, that the supervisor had not returned any of his calls, emails or texts. The appellant testified he did not look at his cell phone during his flight and when he returned home, his cell phone was dead.
The respondent invoked the AWOL statute on September 22, 2020. The appellant learned of his AWOL separation on September 23, 2020, when the AWOL letter arrived via overnight mail. The appellant requested and received a Coleman hearing. The Coleman officer respondent’s Division Chief, Third Party Liability and Recovery Division, spoke with the appellant on September 25, 2020. She asked him for a copy of his original itinerary indicating he was scheduled to fly back to the United States before September 21, 2020. He said he would provide his flight itinerary to her, but failed to do so. The Coleman officer sustained the appellant’s AWOL separation.
At the end of this hearing, the appellant indicated he had located his original itinerary and offered it into evidence. Respondent’s counsel objected to the itinerary as untimely, as all documents to be proffered at the hearing were due to the SAU two weeks earlier. The ALJ sustained the objection. The appellant had ample opportunity to provide the promised itinerary and had no compelling reason for not providing his itinerary five months earlier to the Coleman officer, or two weeks prior to this hearing.
V ANALYSIS
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 the appellant was absent for more than five consecutive working days as he was not at work from September 14, 2020 through September 21, 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] absence and [his] failure to obtain leave therefor, and the department finds that [he] is ready, able, and willing to resume the discharge of the duties of [his] position or, if not, that [he] has obtained the consent of [his] 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 did not have a satisfactory explanation for his absence.
In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102. the California Supreme Court held, “[u]nder the AWOL statute, when an employee is absent without leave for five consecutive working days, it is the employee who severs the employment relationship, not the state.” The appellant was absent from work for five consecutive working days because he failed to return home at the expiration of his approved bereavement and vacation leave.
Here, the appellant requested bereavement leave to attend his brother’s August 24, 2020 funeral in Zambia, Africa. He also requested, and was granted, vacation leave from August 24, 2020 through August 27, 2020. However, at the end of his approved bereavement and vacation leave, the appellant did not return to the United States, but remained in Africa. It is not clear what the appellant did on August 28, 29, 30, 31; or on September 1, 2, 3, 4, 5, 6, 7, 8, 9, 2020, or why he remained in Africa after the expiration of his approved leave.
CalHR considers the death of a family member to be a satisfactory explanation for an absence from work, and State of California policies and employment contracts generally provide a 5-day bereavement leave. However, the appellant’s absence without leave was not because he was attending his brother’s August 24, 2020 funeral in Zambia, Africa. He was absent from work from September 14, 2020 to September 21, 2020 because he failed to return home when his approved bereavement and vacation leave expired.
The respondent approved the appellant’s EPSLA leave request from August 28, 2020 to September 11, 2020, so he could assist his son and nephew displaced by COVID-19 school closures. However, by remaining in Africa during the EPSLA leave, August 28, 2020 to September 11, 2020, the appellant misused this special COVID-19 relief leave. It was the appellant’s responsibility to return to the United States no later than August 28, 2020 to use EPSLA leave.
Additionally, the appellant’s argument he had a satisfactory explanation for his leave because he was hospitalized in Zambia, Africa, is not relevant. Relevant evidence “means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.) [Emphasis added.] It is not a disputed fact the appellant required hospitalization in Africa; therefore, his hospitalization is not relevant. Conversely, the appellant’s failure to return to the United States after the expiration of his approved leave is relevant.
As opined in Bettie Davis v. Department of Veterans Affairs (1986) 792 F.2d 1111, 1113: “an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency.” It was the appellant’s responsibility to report to work when scheduled. Had he returned to the United States as promised on August 28, 2020, he would not have been hospitalized in Africa on September 11, 2020, and could have reported to work as scheduled on September 14, 2020.
Moreover, the appellant offered no explanation as to why he remained in Africa for an additional two weeks after the expiration of his approved bereavement and vacation leave. He misrepresented to the Chief he intended to fly back to the United States by August 28, 2020, and that he would send his absent form request when he arrived overseas. He did neither. The appellant also misrepresented his need for EPSLA leave and should not be rewarded for his misrepresentations.
A misrepresentation is “[a]n untrue statement of fact, an incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead.” [Emphasis added.] (Black’s Law Dict. 6 th ed. p. 1001 col 1.) The law is clear, “[n]o one can take advantage of his own wrong.” (Civ. Code, § 3517.) The appellant should not be rewarded for his various misrepresentations to the respondent, and his absence from work was the result of his failure to return to the United States at the end of his approved leave.
Therefore, the appellant did not have a satisfactory explanation for his absences from work.
The appellant did not have a satisfactory explanation for not obtaining leave.
The Coleman court concluded an employee’s unapproved absence is deemed an abandonment of employment or a constructive resignation. (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d 1102). The appellant failed to report to work as scheduled on September 14, 15, 16, 17 and 21, 2020, and did not request leave. It is a simple concept that in order to obtain leave, one must first make a request for leave. A request is “an expression of a desire to some person for something to be granted.” (See Black’s Law Dict. (6th ed. 1990) p. 1304, col.1.) Without a request for leave, the appellant did not obtain leave.
The appellant did instruct his cousin to tell the respondent he had been hospitalized in Zambia, Africa. However, despite his cousins’s testimony he called and left voice mail messages, sent texts and emails, the respondent could not find any record of emails, phone calls, or texts. If all evidence pertinent to a material fact were evenly balanced on each side, the fact finder must find for the party which does not have the burden of proof. (O’Connell v. C.U.I.A.B. (1983) 149 Cal.App.3d 54.) Because the appellant bears the burden of proof in this matter, his cousin’s testimony is not sufficient to meet that burden.
Furthermore, the state employer need not attempt to locate AWOL employees and prove the employee intended to abandon his position. (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d 1102). Even though not required to do so, the appellant’s supervisor sent him an email message on his first day of absence without leave, inquiring as to whether he was at work. Additionally, at the request of the Chief, he also unsuccessfully attempted to contact the appellant through his emergency contacts.
Without additional evidence, the appellant failed to meet his burden of proof he had a satisfactory explanation for not obtaining leave.
Appellant’s readiness, ability, and willingness to return to work are no longer at issue.
"Except as otherwise provided by law, a party has the burden of proof as to
each fact the existence or nonexistence of which is essential to the claim for relief
or defense that he is asserting." (Evid. Code, § 500.) Because the appellant
failed to meet his burden of proof on each element of his request for reinstatement
appeal, no purpose would be served in determining his readiness, ability, and
willingness to discharge the duties of an Associate Governmental Program Analyst.
VI CONCLUSIONS OF LAW
The appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for his absence. The appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for not obtaining leave. The appellant’s readiness, ability, and willingness to return to work are no longer at issue.
* * * * *
THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation from the position of Associate Governmental Program Analyst with Department of Health Care Services effective September 11, 2020, is denied.
[1] WhatsApp is an American freeware, cross-platform centralized messaging and voice over IP service which allows users to send text and voice messages. (www.whatsapp.com 2/23/2021)
