Final Non-Precedential Decision Adopted: September 2, 2009
By: David Gilb, Director
DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on August 26, 2009, in Sacramento, California.
Appellant was present and represented herself in propria persona.
Angela Briles, Plata Employee Relations Officer, represented the California Department of Corrections and Rehabilitation, respondent.
I - JURISDICTION
On May 6, 2009, the California Department of Corrections and Rehabilitation, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from April 20, 2009 through Appellant filed a request for reinstatement appeal with DPA on May 20, 2009.
California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation if she makes a satisfactory explanation as to the cause of her absence and her failure to obtain leave and DPA finds she is ready, able, and willing to resume the discharge of the duties of her position. The appeal complies with the procedural requirements of Government Code section 19996.2.
II - ISSUES
Appellant argues she had a valid reason for her absence because she went through a crisis on the 8-year anniversary of the loss of her son and has a valid reason for not obtaining leave. She also contends she is ready, able, and willing to return to her duties as an Office Technician.
Respondent argues appellant did not have a valid reason for her absence from April 20, 2009 through May 6, 2009 and failed to obtain leave.
The issues to be determined are:
Did appellant have a valid reason for her absence from April 20, 2009 through May 6, 2009?
Did appellant have a valid reason for not obtaining leave from April 20, 2009 through May 6, 2009?
Is appellant ready, able, and willing to resume the discharge of her position as an Office Technician?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant's work history indicates she had prior employment with the State of California and returned to work on April 10, 1998. She began her current appointment with respondent's San Quentin State Prison on June 21, 2006, as an Office Technician. Her regularly scheduled work hours are Monday through Friday. In early April 2009, several personal troubles made appellant "fly into depression."
Appellant did not report to work or request leave on Monday, April 20, 2009. She did not report to work or request leave on April 21, 2009, April 22, 2009, or April 23, 2009. On April 24, 2009, she called the Chief Dentist and left a voice mail message telling him she would not be in, but did not request leave. She did not report to work or request leave on April 27, 2009, April 28, 2009 or April 29, 2009.
Appellant understood she was to call the Supervising Dentist if she was going to be absent. On April 30, 2009, she called the Supervising Dentist and left a message she would not be at work, but did not request leave. When appellant called to make an appointment with her doctor, she did not state it was an emergency and it took several weeks to obtain an appointment. She was seen by her doctor on May 6, 2009. The doctor excused her from work from May 6, 2009 through May 11, 2009.
IV - PRINCIPLES OF LAW
Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with DPA. Section 19996.2(a) also provides:
"Reinstatement 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."
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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether she is ready, able and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.
The Coleman court concluded the employee's unapproved absence is deemed an abandonment of employment or a constructive resignation. The state employer need not attempt to locate AWOL employees and prove the employee intended to abandon her position. All that is required is the AWOL notice give a date certain on which the AWOL statute will be invoked giving the employee adequate opportunity to request her Coleman hearing.
V - ANALYSIS
Appellant's claim she "flew into a depression" in early April is insufficient to meet her burden of proof she had a valid reason for her absence from April 20, 2009 through May 6, 2009. She had a myriad of reasons for her depression; her parent's dog died, her mother was diagnosed with cancer and it was nearing the 8th anniversary of her son's death. Despite all of these explanations, appellant failed to provide sufficient evidence of an illness or other valid excuse for her absence. The doctor's note she provided did not indicate she should be excused from work during the AWOL period of April 20, 2009 to May 6, 2009.
Appellant understood what respondent expected of her if she was unable to report to work, but she failed to call her supervisor or anyone else at respondent's workplace to report she would be absent for nine consecutive working days. An absence of five consecutive days is all that is needed to show an employee has abandoned a position with the State of California.
VI - CONCLUSIONS OF LAW
Appellant failed to prove by a preponderance of the evidence she had a valid reason for her absence. Appellant failed to prove by a preponderance of the evidence she had a valid reason for not obtaining leave. Because appellant failed to prove she had a valid reason for her absence or for not obtaining leave, there is no need to determine the issue of whether she is ready, able, and willing to work.
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WHEREFORE IT IS DETERMINED, the appeal of appellant's request for reinstatement after automatic resignation from the position of Office Technician with the California Department of Corrections and Rehabilitation, effective May 6, 2009, is denied.
