Final Decision Adopted February 27, 2012

By:  Ronald Yank, Director

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on February 7, 2012 in Sacramento, California.

 

Appellant was present and represented by Jim Franco, Labor Relations Specialist, Association of California State Supervisors.

 

John T. Kennedy, Attorney at Law, Nossaman LLP, represented the Office of Legislative Counsel, respondent.

On December 5, 2011, the Office of Legislative Counsel, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from November 15, 2011 through December 5, 2011.  Appellant filed a request for reinstatement appeal with DPA on December 15, 2011.

 

California Government Code section 19996.2 authorizes DPA, after timely appeal, 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.  DPA has jurisdiction over the appeal.

Appellant argues she had a valid reason for her absence and for not obtaining leave and is ready, able, and willing to return to work.

 

Respondent contends the AWOL separation should be sustained. 

 

The issues to be determined are:

 

1. Did the employee have a satisfactory explanation for her absence from November 15, 2011 through December 5, 2011?

 

2. Did the employee have a satisfactory explanation for failing to obtain leave from November 15, 2011 through December 5, 2011?

 

3. Is the employee ready, able, and willing to return to her position as an Information Technology Specialist I?

The evidence established the following facts by a preponderance of the evidence:

 

Appellant began working for respondent, Office of Legislative Counsel, on June 1, 2009 as an Information Technology Specialist I.  The position of Information Technology Specialist I requires analytical work in computer programing and system software.  Appellant generally worked a 9/8/80 shift, 10 hour days with every other Friday as a regularly scheduled day off.     

 

On Monday, November 14, 2011 at 2:30 p.m., appellant sent an email to her supervisor advising she would be out of the office due to Family Medical Leave Act (FMLA).  The email also stated she would return to work on Tuesday, November 15, 2011.  On Tuesday, November 15, 2011, appellant did not return to work.  At 1:18 a.m., early on the morning of November 15, 2011, appellant sent her supervisor the following email:

 

 

On November 16, 2011, appellant’s supervisor told her the email message did not provide a satisfactory explanation as to her anticipated time away from work or when she could be expected to return to work.

 

The supervisor’s November 16, 2011 email response also reminded appellant she was on a sick leave restriction for excessive absenteeism, and must provide proper medical substantiation for any time out of the office without prior approval.  He gave appellant specific instructions to immediately provide a medical note indicating her expected date of return to the office.  He also advised appellant if she was unable to provide a medical note, she must return to work immediately.  He also warned she was subject to automatic resignation if she was absent from the workplace for five consecutive days.

 

On November 17, 2011, appellant sent her supervisor an email stating an aunt who lived out of state, had suddenly taken ill and died.  She said she needed to take bereavement leave and would provide the necessary documentation upon her return.  Appellant’s supervisor responded a few hours later and expressed his condolences regarding appellant’s loss and outlined the bereavement leave entitlement.  He indicated she would be expected back at the office no later than November 28, 2011 as long as she provided bereavement leave documentation.

 

Appellant did not respond to her supervisor.  She was dealing with funeral arrangements and “assumed” everything was taken care of regarding her absence.  Appellant did not report to work on November 28, 29, 30, or December 1, 5, 2011.  Appellant did not communicate with respondent after November 17, 2011 for any reason or by any method.  On December 5, 2011, respondent invoked the AWOL statute Government Code 19996.2 and separated appellant from state service.

 

The Human Resources Officer assisted appellant’s supervisor in reviewing and drafting letters sent to appellant.  He also offered procedural support to him for the AWOL separation of appellant and assisted in the preparation of emails sent to appellant.

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 her testimony at the hearing, including, but not limited to, (e) [Her] character for honesty and veracity or their opposites . . . (f) The existence or nonexistence of a bias, interest, or other motive . . . (h) A statement made by [her] that is inconsistent with any part of [her] testimony at the hearing.  (Evid. Code, § 780.)  The Administrative Law Judge makes the following credibility determination.

 

Appellant’s testimony she did not check her emails from November 18, 2011 to November 28, 2011 is not credible.  Even though it was her primary method of contact with her supervisor, she gives no reason for not accessing her email account stating simply, “I was email dark because I was either at the mortuary or the hospital and I was not email able at that point.”  Appellant, who had been warned and instructed on numerous occasions what was required of her to obtain leave, testified incredibly, “I was not aware I had to [contact respondent] at that point.” 

 

Appellant’s motive to fabricate is clear – she wants her job back and is willing to say whatever is necessary to achieve that end.  Although she claims to have 1) needed FMLA for a family member; 2) planned a funeral for her aunt; 3) traveled to Georgia for a funeral;  and 4) planned a funeral for her mother; she offers no documentary evidence any of these events occurred.  Even more implausible is her testimony she didn’t think she had to bring any evidence to the hearing to substantiate her absence, and admits not bothering to read the AWOL hearing notice instructions.

 

Appellant’s lack of veracity was further shown when she testified she believed the Employment Development Department (EDD) had made respondent aware of the reasons for her absence.   And then testifies contacting respondent was, “not a high priority” because she was “dealing with funerals.”  These responses are diametric.  Either she believed that EDD had taken care of her absence negating the need to contact respondent; or she believed she was required to contact respondent.  This testimony differs from her earlier testimony she didn’t think she had to contact respondent.   Appellant’s self-serving, contradictory testimony is not believable.

Government Code section 19996.2(a) is generally referred to as the AWOL statute and 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 days as she was not at work from November 15, 2011 through December 5, 2011. 

 

Government Code 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 [her] absence and [her] failure to obtain leave therefor, and the department finds that [she] is ready, able, and willing to resume the discharge of the duties of [her] position or, if not, that [she] has obtained the consent of [her] appointing power to a leave of absence to commence upon reinstatement.”

 

DPA has long held that injury or illness of the employee is a satisfactory explanation for not reporting to work.  However, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence each material issue.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 

 

Appellant could offer no proof she had a satisfactory explanation for her absence.  The only document offered in evidence was a note from her Psychologist written a month after her absence. The note indicates appellant was sick during the AWOL period.  However, appellant never indicated she was sick, but rather she was attending to funeral arrangements for family members.

 

In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court held an 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 his position. Appellant told respondent, “I will be out of the office until further notice.”  This is not a request for leave and does nothing to assist appellant in meeting her burden of proof she had a satisfactory explanation for not obtaining leave.

 

Appellant is not blameless in her AWOL separation from state service.  She was told what was required to obtain leave, and simply chose to ignore respondent’s instructions.

 

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 she is asserting.  (Evid. Code, § 500.)  Appellant has failed to meet her burden of proof on two of the three required elements of her request for reinstatement appeal.  Each is essential to her appeal and no purpose would be served in determining her ability, readiness or willingness to discharge the duties of an Information Technology Specialist I.

Appellant failed to prove by a preponderance of the evidence she had a satisfactory explanation for her absence.  Appellant failed to prove by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave.  Appellant’s ability, readiness and willingness to return to work is no longer at issue.