CalHR Case Number 22-T-0049
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted
By: Eraina Ortega, Director
PROPOSED DECISION
This matter was heard telephonically before Karla Broussard-Boyd, Senior Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. on October 13, 2022. The appellant, was present and self-represented. A Tax Counsel III, Franchise Tax Board (FTB), represented FTB, respondent.
I
JURISDICTION
On April 18, 2022, the Franchise Tax Board, respondent, notified the appellant he was being automatically resigned for being absent without leave (AWOL) from April 11, 2022 through April 15, 2022. The appellant filed a request for reinstatement appeal with CalHR on June 10, 2022.
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 June 10, 2022, the appellant filed a request for reinstatement after automatic resignation appeal with the CalHR Statutory Appeals Unit (SAU). On June 23, 2022, the SAU advised the parties the appeal was filed late, and respondent's counsel filed a Motion to Dismiss the late-filed appeal. The Motion to Dismiss was denied as the 6-day delay in filing the appeal was determined to be de minimus, and no prejudice to the respondent was shown.
On July 21, 2022, the SAU issued a Notice of Time and Place of telephonic Pre-Hearing Conference for August 22, 2022. At the telephonic Pre-Hearing Conference, the telephonic Evidentiary Hearing was scheduled for October 13, 2022. This hearing followed.
III
ISSUES
The appellant argued he attempted to obtain leave, his arrest and subsequent incarceration was a surprise, and he should be reinstated.
The respondent argued the appellant was absent without leave for five consecutive working days because he was incarcerated, and the AWOL separation should be sustained.
- Did the appellant have a satisfactory explanation for his absence for the period April 11, 2022 through April 15, 2022?
- Did the appellant have a satisfactory explanation for not obtaining leave for the period April 11, 2022 through April 15, 2022?
- Is the appellant ready, able, and willing to return to work and discharge the duties of a Compliance Representative, Franchise Tax Board?
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 March 2, 2016, as a Tax Technician for respondent, Franchise Tax Board (FTB). On May 31, 2019, he was promoted to his most recent position, Compliance Representative for FTB and his supervisor was an Administrator I. Due to the COVID-19 global pandemic the Administrator I provided the appellant written Telework Expectations in April 2020.
The Telework Expectations required the appellant to “perform [his] work as if [he] was in the office." That included attendance and leave requests which required the appellant to, “contact [his] immediate supervisor one hour prior to the start of [his] shift when an unexpected circumstance or illness prevent [him] from reporting to work at the beginning of [his] shift and/or requires the employee to request leave." The appellant was also told his absences were not approved until he received approval from his immediate supervisor.
The appellant's troubles began in 2021, when he was told by his psychiatrist's office they no longer wanted to work with him because he was upsetting the office staff. In January 2021, the appellant was arrested for damaging two of his neighbor's vehicles, and subsequently convicted of a felony for causing damages over $400. His felony conviction resulted in his participation in a felony mental health diversion program within the Sacramento County court system.[1] The diversion program required he check in weekly with a social worker; monthly with a psychiatrist; and maintain compliance with medications. The appellant testified in January 2022, he had to change social workers, causing him to go two weeks without meeting with a social worker, in violation of his felony mental health diversion program. He believes this led to his problems
because he was, for reasons he did not explain, “unable to contact his psychiatrist." By February he was not sleeping or eating which made it difficult to stay awake during business hours. He further testified life was very challenging as he was facing homelessness and in need of assistance.
On March 17, 2022, the Administrator I, asked respondent's FMLA Coordinator to send the appellant a second set of FMLA paperwork for completion. The FMLA Coordinator sent the appellant an email on March 17, 2022, which stated in relevant part,
“FMLA paperwork was sent to you on 2/17/2022 with a due date of 3/11/2022. We have not received your completed Certification Healthcare Provider and FMLA Application. As a courtesy we are granting a 15 business day extension. Please provide completed paperwork no later than 4/08/2022,failure to do so will result in the denial of your FMLA request." [Emphasis in original.]
On March 30, 2022, the appellant came to the office and told the Administrator I, he could not get the FMLA paperwork signed. She gave him additional FMLA paperwork and told him he must complete the documents no later than April 8, 2022. He told her he was to meet with his Social Worker that afternoon.
The respondent's FMLA Coordinator, testified she provided the appellant with three sets of FMLA paperwork. Each time she gave the appellant three weeks to complete the documentation and gave him a final 15-day grace period. The FMLA coordinator also testified she never received any FMLA paperwork back from the appellant, nor did she receive a request for a medical leave of absence from him.
On March 19, 2022, the appellant went to the Emergency Department at Sutter Hospital in Roseville, California, and was later admitted to Sierra Vista Hospital in Sacramento, California, as an inpatient from March 24, 2022 to March 29, 2022. He was also required to participate in the Folsom Partial Hospitalization program for 2-4 weeks beginning March 31, 2022. The Partial Hospitalization program required the appellant participate Monday through Friday from 9:00 a.m. to 2:00 p.m., to deal with his “Bipolar – mania, and his substance abuse of alcohol and cannabis." His goals were to, “live for myself," “be a father" and “get back to work."
On April 1, 2022, the appellant was taking a break in front of the Partial Hospitalization program when Folsom police arrested him on a Failure to Appear warrant. He explained he missed his court appearance because he was in the hospital. He also believes someone called the police because he was living in his car in the parking lot of the Partial Hospitalization program at the time. The appellant testified he was incarcerated during the AWOL period of April 11, 2022 through April 15, 2022, and believes those circumstances were out of his control. He testified his aunt called the respondent because he was unable to call due to his incarceration.
The Administrator I, never spoke with the aunt, who left a voice mail message stating the appellant was still incarcerated and “he's back on his medication." The respondent invoked the AWOL statute on April 18, 2022. The appellant went back to court on April 26, 2022, and believes he is now ready, willing and able to return to work, as his medication is working. The doctors indicate the appellant is “able to maintain employment given that he is adherent with prescribed medications and engaging in treatment." No doctors testified.
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 appellant was absent for more than five consecutive working days as he was not at work from April 11, 2022 through April 15, 2022.
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 did not have 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, the appellant was under court order, to see his social worker weekly; his psychiatrist monthly; and maintain compliance with his medications. The appellant failed to comply with the court order when he did not see his social worker or psychiatrist as required.
By his own admission, the appellant's legal troubles began in 2021 when his psychiatrist's office told him they no longer wanted to work with him because he was upsetting the office staff. He was later arrested and placed in the Sacramento County felony mental health diversion program, requiring strict adherence to the program. Because the appellant did not comply with the court order, he was arrested for failing to appear at his March 18, 2022, court hearing.
Moreover, at the time of his arrest, the appellant was using alcohol and cannabis, in further violation of the court order which led to his hospitalization in late March 2022.
His Failure to Appear arrest, was well within his power and control had he adhered to the strictures of his felony mental health diversion program. Instead, on March 19, 2022, realizing he needed medical assistance, he went to Emergency, and later became an inpatient at Sierra Vista Hospital.
The appellant did not have a satisfactory explanation for his absence because the circumstances which led to his arrest were not beyond his control.
The appellant did not have a satisfactory explanation for not obtaining leave.
In Coleman v. DPA (1991) 52 Cal.3d 1102, the court concluded an employee's unapproved absence is deemed an abandonment of employment or a constructive resignation. “The 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' and are therefore ineligible for benefits." (Jefferson v. California Unemployment Ins. Appeals Bd. (1976) 59 Cal.App.3d 72.)
Similarly, CalHR has rarely held incarceration a satisfactory explanation for not obtaining leave, unless the criminal behavior and subsequent incarceration are beyond the control of the appellant, or the arrest was without just cause. Here, the circumstances surrounding the appellant's arrest were not beyond his control and were a direct result of his conduct in violation of a court order. Moreover, all of the appellant's actions, or failures to act, were sufficient enough to lead to probable cause for his arrest. Probable cause for arrest exists if there are circumstances sufficient to warrant a prudent person's belief that the suspect has committed an offense. (Wood v. Emmerson (2007) 155 Cal.App.4th 1506.) Because the appellant violated the court order requiring him to maintain his medication regimen – there was probable cause for his arrest.
It is the employee, and not the employer, who must suffer the consequences of their own misconduct as it is unfair to make the employer bear the economic costs of the employee's misconduct. (Yardville Supply Co. v. Board of Review, Dept. of Labor (1989) 114 N.J. 371.) Appellant's conduct leading to his arrest and subsequent incarceration is not a satisfactory explanation for not obtaining leave. His absence from work for five consecutive days was the result of his own unlawful conduct, and therefore he alone should suffer the consequences.
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 a Compliance Representative, Franchise Tax Board.
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 Compliance Representative, Franchise Tax Board, with the Franchise Tax Board effective April 27, 2022, is denied.
[1] Some criminal defendants may receive mental health treatment when they are accused of a crime. If the defendant successfully completes treatment, the criminal charges will be dismissed as if the arrest never occurred. (Penal code section 1001.36.)
