PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on September 20, 2011 in Porterville, California.
Appellant was present and represented by Daniel Luna, Staff Attorney, Service Employees International Union (SEIU), Local 1000.
Hank Jennings, Labor Relations Specialist, represented the Department of Developmental Services (DDS), Porterville Developmental Center, respondent.
I - JURISDICTION
On July 15, 2011, DDS, Porterville Developmental Center, respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from June 29, 2011 through July 3, 2011. Appellant filed a request for reinstatement appeal with DPA on July 29, 2011.
California Government Code section 19996.2 authorizes DPA 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 DPA 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. DPA has jurisdiction over the appeal.
II - ISSUES
Appellant argues he had a valid reason for his absence and believed he was not required to call in on a daily basis because he had doctor’s notes excusing his absence and he is now ready, able, and willing to return to his position as a Food Service Technician I.
Respondent contends appellant is familiar with the AWOL process and did not call or request leave and it is not clear whether he is ready to resume the discharge of his duties.
The issues to be determined are:
1. Did appellant have a valid reason for his absence from June 29, 2011 through July 3, 2011?
2. Did appellant have a valid reason for not obtaining leave from June 29, 2011 through July 3, 2011?
3. Is appellant ready, able, and willing to resume the discharge of duties of a Food Service Technician I?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began his career with respondent’s Porterville Developmental Center on October 31, 2005 as a Food Service Technician I. At the time of his AWOL separation, he was a Food Service Technician I working the 6:30 a.m. to 3:00 p.m. shift in [food] presentation. His primary duties were to serve and prepare foods for respondent’s residents/clients and clean up the kitchen area after each meal.
At the time of appellant’s AWOL separation, the Assistant Director of Dietetics (ADD) was the training coordinator for respondent. She was responsible for all state mandated training for respondent. Appellant attended Employee Procedure A-1 leave policy training (A-1), regarding attendance and call-in procedures in 2009 and 2010. The A-1 leave policy details what an employee must do to call in an absence from work to avoid an AWOL separation and states in relevant part,
“absence from work (no show and no call) without leave/permission for five (5) consecutive days shall be considered AWOL and deemed to have resigned from the position effective the first day of absence.”
The parties stipulated to the AWOL period of June 29, 2011 through July 3, 2011. Appellant was absent from work during the AWOL period and is unclear on the last day he actually worked for respondent. Appellant admits he did not tell respondent he was not going to be at work during the AWOL period and did not call in and request leave from June 29, 2011 through July 3, 2011.
Appellant explained his absence from work was due to depression he believed was caused by work-related stress. He filed an Equal Employment Opportunity Commission (EEOC) claim in November 2010 because he believed two women had sexually harassed him. He was not happy with the outcome of his EEOC claim which affected his attendance at work. He applied for, and received FMLA leave on two occasions; one for a diabetic condition, the other for depression.
Appellant understood that even under FMLA, an absence from work is treated like any other absence, and he would be considered AWOL if he failed to call in, unless incapacitated. He also knew to contact the supervisor on duty when he was not reporting to work. If he did call in his absence, he consistently called when he knew no one would be there and does not recall on which days he called. Appellant believed he had permission to be absent because he had time on the books and because of his FMLA leave for depression.
At his Coleman hearing, appellant explained, because he took the prescription drug, Zoloft, he was unable to sleep and oftentimes went night fishing to relax. He also explained at some point he stopped taking his diabetes medication. When asked whether he is ready to return to work he became emotional, but believes he must return to send a message he is not a victim even though the same individuals who caused him stress are still there. Appellant also admits it is a challenge to go to work with everyday problems and people who don’t like you, but needs to confront these issues by going back to work and moving forward.
Appellant produced a doctor’s note which cleared him to return to work on May 16, 2011, but he did not return to work at that time. No doctors were called to testify.
IV - ANALYSIS
Government Code section 19996.2(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.” Section 19996.2(a) also provides: “[r]einstatement 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.”
Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence he had a valid excuse for his absence and failure to obtain leave and he is currently able to return to work. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) The parties stipulated appellant was absent for more than five consecutive days as he was not at work from June 29, 2011 through July 3, 2011.
Appellant was not excused from reporting to work as scheduled simply because he believed his FMLA leave was sufficient. He sought no approval from respondent and none was granted.
Appellant is not ready, able, and willing to return to work.
Appellant’s argument he is a long term 5-year employee of respondent and should therefore be allowed to return to work is not persuasive. His issues appear to be of his own making, because even though he understood his absences were causing hardship at work, he self-diagnosed himself as depressed after his doctor cleared him to return to work.
Hearsay evidence is admissible in an administrative hearing if it is relevant, and it is of the character or quality on which responsible persons are accustomed to rely in the conduct of serious affairs. (McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044.) Appellant’s testimony regarding his current readiness, ability and willingness to return to work is not reliable. Additionally, appellant’s feelings he was being ostracized at work were neither explained or corroborated. Moreover, his belief he was treated so badly at work belies any testimony he is ready, able, and willing to return to respondent’s workplace.
V - CONCLUSIONS OF LAW
Appellant failed to prove by a preponderance of the evidence he had a valid reason for his absence, failed to prove by a preponderance of the evidence he had a valid reason for not obtaining leave, and failed to prove by a preponderance of the evidence he is ready, able, and willing to return to work.
