CalHR Case Number 15-S-0136
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted: April 13, 2016
By: Richard Gillihan
PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge II (ALJ),
Department of Human Resources (CalHR) at 9:00 a.m. on March 3, 2016 in Sacramento,
California.
The appellant, was present and self-represented. Courtney S. Lui, Deputy Attorney
General, Department of Justice, represented the California Public Utilities Commission
(CPUC), respondent.
I – JURISDICTION
On October 20, 2015, CPUC, respondent, notified appellant he was being automatically
resigned for being absent without leave (AWOL) from September 16, 2015 through
October 19, 2015. Appellant filed a request for reinstatement appeal with CalHR on
November 5, 2015.
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 – ISSUES
The issues to be determined are:
1. Did the appellant have a satisfactory explanation for his absence from
September 16, 2015 through October 19, 2015?
2. Did the appellant have a satisfactory explanation for not obtaining leave
from September 16, 2015 through October 19, 2015?
3. Is the appellant ready, able, and willing to return to work and discharge the duties
of a Legal Secretary?
III – FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence.
The appellant began his career with respondent, CPUC, on March 14, 2012. In 2013, he
transferred to another State of California agency and returned to respondent on May 7,
2014 in his most recent position as a Legal Secretary. The appellant was part of a typing
pool and worked a Monday through Friday 8:30 a.m. to 5:00 p.m. shift. In January 2015,
his supervisor was [name redacted].
On January 29, 2015, the appellant testified he became catatonic and for an hour or so
just sat at his desk staring and staring. The following day he filed for disability. By April
2015, his 12 weeks of Family Medical Leave Act (FMLA) leave were exhausted. On June
30, 2015, the appellant asked his Personnel Specialist for a one-year unpaid leave of
absence (LOA) “to recover.” On July 1, 2015, she advised him any LOA request must be
approved by his supervisor, the Human Resources Director and must be accompanied
with substantiation supporting his need for a LOA.
On July 20, 2015, the appellant sent his supervisor an email detailing his need for a
medical LOA, but provided no medical substantiation. He sent a copy of his email to his
union representative and to his Personnel Specialist. The appellant acknowledged that
during his extended time away from work, a new supervisor succeeded his original
supervisor. He did not send his new supervisor or the Human Resources Director his
medical LOA request.
On September 14, 2015, the appellant sent an email to his new supervisor. The email
stated his doctor had extended his disability through November 15, 2015. He did not
request leave, ask for an update on his medical LOA request, and never contacted his
new supervisor again. On September 22, 2015, one of respondent’s Human Resources
employees, sent the appellant a letter regarding reasonable accommodation. On
September 23, 2015, this employee sent a copy of her September 22, 2015 letter to the
appellant by email.
Her September 22, 2015 letter requested information regarding the appellant’s current
work restrictions and what reasonable accommodation he might need to perform the
essential functions of his job. The letter included copies of respondent’s policies,
procedures and forms required to request a reasonable accommodation. The appellant
denied receiving this letter outlining the policies, procedures and the reasonable
accommodation forms.
On September 24, 2015, the appellant sent the following email to this employee:
“Dear [name redacted],
I still need to look over all that you sent in regards to information covering
reasonable accommodation request, etc., but to clarify, I did provide the
agency clarification as to my current leave status; basically, that I have been
extended on disability by my physician through November 15th.
Please find such substantiation in the attached. [footnote 1: The
attachments were: a copy of his EDD claim effective January 30, 2015 and
a note from his doctor indicating continuance of his disability benefits to
November 15, 2015. Footnote ends].
Also, I turned in an FMLA packet that my physician had filled out sometime
ago; in it, please find all information regarding accommodations as to my
work, etc.
Please let me know if you have any other questions.
Thanks,
[name redacted].”
The employee immediately responded to the appellant’s email and told him to contact her
no later than September 30, 2015 if he needed assistance with completing the forms or
had questions regarding any reasonable accommodation. Her emails went unanswered.
On October 1, 2015, she sent another letter to the appellant’s home address which stated
in relevant part:
“It is important that you understand that a note from a doctor does not have
the effect of placing an employee on approved leave. A medical note such
as the one you submitted, functions as a request for leave. An employee is
not on approved leave until such time as the Division approves the request,
which your Division has not done . . . Please provide the requested
information quickly, so that your Division can evaluate your request for
further leave as well as other possible accommodations.” [Emphasis in
original.]
She also sent a copy of her October 1, 2015 letter attached to an email the same day.
The appellant claimed he did not receive the October 1, 2015 letter or email attachment
telling him his leave was not approved.
On October 12, 2015, respondent’s Chief ALJ sent a letter to the appellant. The letter
told the appellant he had failed to provide the necessary information regarding his
medical condition and had been absent without leave since September 16, 2015. She
stated:
“You are being ordered to either:
1. Return to work, or
2. Provide the requested information (to the person in the HR Office)
and engage in good faith in the interactive process to exploring reasonable
accommodations.
Failure to do either of the above by 5:00 p.m. on Thursday, October 15,
2015, will result in the California Public Utilities Commission invoking the
AWOL statute (Government Code 19996.2) because you have been absent
without authorized leave for five (5) or more consecutive working days.”
[Emphasis in original.]
The appellant claimed he did not receive the Chief ALJ’s October 12, 2015 letter ordering
him to return to work.
On October 20, 2015, respondent issued its AWOL separation notice to the appellant
because he had been absent for more than five consecutive working days. The AWOL
separation notice was signed by the Chief ALJ. On October 31, 2015, the appellant sent
the following email to her:
“I got your letter, and here’s my response:
I am unmoved, and unbroken by it… this has not weakened me, it has
empowered me; and I will be stronger and better because of it--in fact, in a
lot of ways, I already am.
I’ve lived my whole life fighting against overwhelming odds, and have
successfully turned every negative situation into incalculable opportunity, as
I will in this situation….
I don’t want, nor need, a response from you.
[initial redacted].”
The appellant testified he is conditionally ready, able, and willing to return to work.
“Notwithstanding . . . uhm possible . . . uhm accommodations – reasonable
accommodations, and those have yet to be determined – but things like, like a quiet work
environment and stuff like that notwithstanding accommodations, reasonable ones,
yes.” Except for a quiet work environment, he does not know what reasonable
accommodations are needed, but, “they will be determined . . . as I work – issues will
arise.” When asked if his working environment was quiet, he emphatically testified, “no
it’s not – it’s incredibly loud.” No doctors testified.
IV – CREDIBILITY DETERMINATION
The ALJ makes the following credibility determination. Except as otherwise
provided by statute, the court or jury may consider, in determining the credibility of a
witness, any matter that has any tendency in reason to prove or disprove the truthfulness
of his testimony at the hearing, including, but not limited to . . . (e) His character for
honesty or veracity or their opposites . . . (f) The existence or nonexistence of a bias,
interest, or other motive.
The appellant’s selective memory is suspect. He recalled receiving an email from the HR
employee on September 23, 2015 but denied receipt of her September 22, 2015 letter
with several reasonable accommodation documents attached. His denial is belied by the
fact he emailed her the next day stating, “Dear [name redacted], I still need to look over
all that you sent in regards to information covering reasonable accommodation
request . . . .” His acknowledgement “all that you sent in regards to reasonable
accommodation,” is diametric to his denial under oath he did not receive the reasonable
accommodation documents.
Additionally, his testimony he did not receive the HR employee’s October 1, 2015 letter is
not believable. He testified he received her October 1, 2015 email but denied receipt of
the October 1, 2015 letter attached to the email. This October 1, 2015 letter was also
sent to his home address, which he denied receiving, stating, “I don’t recognize it.” The
HR employee’s October 1, 2015 letter specifically told him, “[a]n employee is not on
approved leave until such time as the Division approves the request, which your Division
has not done . . . [p]lease provide the requested information quickly, so that your Division
can evaluate your request for further leave as well as other possible accommodations.”
[Emphasis in original.] The appellant is under the mistaken belief his story is more
credible if he denies receipt of respondent’s letters.
Moreover, his failure to recall receiving the Chief ALJ’s October 12, 2015 letter ordering
him to return to work or provide the requested medical substantiation is also not
believable because his own conduct contradicts his testimony. Specifically, he sent a
very detailed message to Clopton on October 31, 2015 acknowledging her
correspondence. Here again, the appellant is under the erroneous belief his testimony,“I
believed my doctor’s note would extend my leave,” would sound more credible if he
denied receipt of respondent’s instructions to return to work. The appellant’s lack of
veracity is troubling.
V – ANALYSIS
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 . . . [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.”
Additionally, in 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 satisfactory explanation for being absent, whether he had a satisfactory explanation
for not obtaining leave and whether he is ready, able, and willing to return to work. The
Coleman, supra, court concluded the employee’s unapproved absence is deemed an
abandonment of employment or a constructive resignation.
Lastly, appellant has the burden of proof in these matters and must prove by a
preponderance of the evidence he had a satisfactory explanation for his absence and
failure to obtain leave and that he is currently ready, able, and willing to return to work.
(Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) The party who bears the burden of
proof has the general burden of coming forward with a prima facie case. (Director, Office
of Workers’ Compensation Programs, Dept. of Labor v. Greenwich Collieries (1994) 512
U.S. 267.)
The appellant had a satisfactory explanation for his absence.
The illness of an employee has long been held by CalHR as a satisfactory reason
for an absence from work. On September 22, 2015, the appellant’s doctor
extended his disability leave until November 15, 2015. Therefore, the appellant
had a satisfactory explanation for his absence from September 16, 2015 through
October 19, 2015.
The appellant did not have a satisfactory explanation for not obtaining
leave.
The respondent did not excuse the appellant for his absence from September 16, 2015
through October 19, 2015. Respondent’s HR employee unequivocally explained to
the appellant, “[a]n employee is not on approved leave until such time as the Division
approves the request.” The appellant did nothing to request leave or contact his
supervisor and failed to complete a request for a medical leave of absence.
Instead, he ignored respondent’s instructions and referred to irrelevant FMLA documents
sent months earlier and disability documents from the Employment Development
Department (EDD). FMLA, which he exhausted in April 2015, was no longer at issue and
disability documents from EDD were insufficient to approve or justify his need for a
medical leave of absence. An employer has a right to expect an employee to report for
work unless the employee has been excused for illness or injury or for other non-medical
reasons. As opined in Bettie Davis v. Department of Veterans Affairs (1986) 792 F.2d
1111, “an essential element of employment is to be on the job when one is expected to be
there.”
It is clear, that despite his denials to the contrary, the appellant received the respondent’s
correspondence explaining the process to obtain leave and the order to return to work.
“The state has an interest in promptly removing from the state payroll those employees
who have been absent without leave for five consecutive working days in order to make
jobs available and to maximize its productive workforce.” (Coleman, supra, 52 Cal.3d
1102 at p. 1122.) The appellant’s failure to follow the instructions of respondent in order
to obtain leave is fatal to his claim he had a satisfactory explanation for not obtaining
leave.
The appellant is not ready, able, and willing to return to work.
The appellant conditions his return on “possible reasonable accommodations,” however,
he never requested a reasonable accommodation. “There is an obvious distinction
between an employee who has become medically unable to perform his usual duties and
one who has become unwilling to do so.” (Haywood v. American River Fire Protection
District (1998) 67 Cal.App.4th 1292.) The appellant’s emphatic declaration his work
environment is “incredibly loud” together with his testimony he needs a quiet work
environment is evidence he is not ready, able, and willing to return to work, and is
unwilling to perform the duties of a Legal Secretary for respondent.
VI – CONCLUSIONS OF LAW
The appellant proved 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 is not
ready, able, and willing to return to work.
* * * * *
THEREFORE, IT IS DETERMINED, the appellant’s appeal for reinstatement after
automatic resignation from the position of Legal Secretary with the California Public
Utilities Commission effective September 15, 2015 is denied
