Final Decision Adopted November 21, 2011

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 September 22, 2011 in Coalinga, California.

 

Appellant was present and represented by Steven B. Bassoff, Law Office of Steven B. Bassoff.  Susan Davey, Accounting Administrator I, represented the Department of Mental Health (DMH), Coalinga State Hospital (CSH), respondent.

On April 8, 2011, DMH, CSH, respondent, notified appellant she was being automatically resigned for being absent without leave (AWOL) from March 21, 2011 through April 7, 2011.  Appellant filed a request for reinstatement appeal with DPA on April 22, 2011.

 

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.  DPA has jurisdiction over the appeal.

 

Appellant’s Memorandum of Understanding under Bargaining Unit 18 expands the Administrative Law Judge’s jurisdiction to include the following issues:  whether appellant was absent for five (5) consecutive working days; was appellant’s absence without leave, that is, without the employer’s permission; and whether the appointing power properly invoked the AWOL statute, Government Code section 19996.2.

Appellant argues she called respondent’s staffing office to advise her doctor had taken her off work for 2 weeks and therefore had a valid reason for her absence.  She also contends respondent improperly invoked the AWOL statute and she is now ready, able, and willing to resume the discharge of her duties as a Psychiatric Technician (Safety).

 

Respondent argues appellant held an utter disregard for the rules of CSH, failed to obtain leave and the AWOL statute was properly invoked. 

 

The issues to be determined are:

 

1. Was the employee absent for five (5) consecutive working days?

 

2. Was the absence without leave, i.e., without the permission of the employee’s appointing power?

 

3. Did the employee have a satisfactory explanation for her absence from March 21, 2011 through April 7, 2011?

 

4. Did the employee have a satisfactory explanation for failing to obtain leave from March 21, 2011 through April 7, 2011?

 

5. Is the employee ready, able, and willing to return to work, or, if not, does she have leave from her appointing power to be absent?

 

6. Did the appointing power properly apply the AWOL statute?

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

 

Appellant began her career as a Psychiatric Technician (Safety) at respondent’s CSH on August 8, 2005.  On December 3, 2010, appellant received a directive for excessive absenteeism from the Unit I Supervisor.  The Unit I Supervisor rarely saw appellant because they worked different shifts, but she reported to a shift lead who reported to the Unit I Supervisor.  The Unit I Supervisor’s directive stated in relevant part, “failure to follow these procedures or to provide adequate substantiation will result in a denial of the sick leave requested and any absence will be recorded as absent without leave (AWOL).”  The memo also detailed what she must do in order to obtain leave.  It stated in relevant part:

 

“If you are unable to reach me you must contact the Program Officer of the Day (POD) at (559) 240-XXXX.  The POD will inform you whether or not you will be required to provide a doctor’s note.”

 

Appellant refused to sign the directive.

 

In January 2011, appellant was granted a reasonable accommodation for a severe anxiety disorder.  The reasonable accommodation allowed her to remain on the NOC shift, (11 p.m. to 7 a.m.), and was only required to work 2 mandatory overtimes instead of the usual 6 mandatory overtimes per month.  Mandatory overtimes are a necessary requirement of the Psychiatric Technician (Safety) position in order to remain in compliance with state mandates.  The reasonable accommodation resolved her anxiety disorder “to a degree.”

 

On January 11, 2011, the Unit I Supervisor also issued appellant a Formal Corrective Action. The Formal Corrective Action reiterated the directive in the counseling memo of December 3, 2010.  Specifically it stated, “[y]ou must speak to [the US, Unit 1 or the POD] in order to receive direction as to whether or not you will be required to provide physician’s verification of illness.”  

 

By March 21, 2011, appellant felt her anxiety disorder was “out of control’ and had “suicidal thoughts” which she reported to her doctor.  At that time, her doctor diagnosed her with a bipolar disorder and took her off work for two weeks until April 4, 2011.  He also suggested a psychiatric referral.  Later, on the evening of March 21, 2011, appellant called both the staffing office and the POD.  The Unit Supervisor of Unit 2, was the POD.  Appellant told the Unit 2 Supervisor she had a doctor’s note taking her off work for two weeks. 

 

The Unit 2 Supervisor did not personally supervise appellant and had never seen her until the day of the hearing.  He was merely the POD when appellant called at approximately 9:00 p.m. on March 21, 2011. The Unit 2 Supervisor noted appellant was on sick call counseling.  Sick call counseling is an agreement between the Nursing Coordinator and the employee on how the employee must obtain time off.  The Unit 2 Supervisor told her to fax her doctor’s note.  Appellant did not want to fax her medical information to the unit, so she was told to first call the Nursing Coordinator (NC) in the morning to obtain a different fax number.  The Unit 2 Supervisor did not give appellant permission to be off on any day except March 21, 2011.

 

The following morning, March 22, 2011, the Unit 2 Supervisor told the NC to expect appellant’s call.  On March 22, 2011, the NC, who was responsible for nursing staff and unit supervisors for Program II, did not receive a doctor’s note from appellant or a phone call requesting leave.  When he did not hear from appellant, the NC made several attempts to contact her by telephone.  The NC was unsuccessful in contacting appellant as her phone was set up in such a manner that it did not record messages from missed callers. 

 

Later, on March 22, 2011, the NC sent an email to the Clinic Administrator to advise appellant had not reported to work and calls to her phone were unsuccessful.   At some point after March 21, 2011, appellant claims she was hospitalized but does not know which days or how many days she was hospitalized.  She does not recall when she was released from the hospital and did not provide any documentation to verify her alleged hospital stay.

 

On April 7, 2011, appellant contacted respondent to return to work and spoke with another POD.  The POD told her pursuant to the instructions from the NC, she was to report to the Occupational Health Clinic the next morning.  On April 8, 2011, appellant went to respondent’s facility where she was met by the Discipline Officer (DO), who served her with the AWOL notice. 

 

The DO is responsible for determining whether a supervisor can show the employee has been absent without leave for 5 consecutive working days.  Once she has determined the absence was for 5 or more consecutive working days she prepares the AWOL notice.  Satisfied appellant had been absent more than five consecutive working days, she prepared the AWOL notice for appellant.  Appellant acknowledges she was not at work from March 21, 2011 through April 7, 2011.  No doctors were called to testify. 

The Administrative Adjudication Bill of Rights, adopted by DPA under California Code of Regulations, title 2, section 599.898:  “requires reviewing courts to give deference to an administrative body’s determination of credibility to the extent the decision identifies the observed demeanor, manner, or attitude of the witness.”  (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575.) 

 

“[I]f the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination . . . .”  (Gov. Code, § 11425.50(b).)

 

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 . . . (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 hearing.  (Evid. Code, § 780.)  The Administrative Law Judge makes the following credibility determination.  

 

Appellant gave contradictory testimony at the hearing.  She first indicated the Unit 2 Supervisor asked her for the doctor’s note, but later changed her testimony stating she was never asked to provide a doctor’s note.  Additionally, her testimony she believed it was the NC who was to call her if he needed a doctor’s note is not believable, because she understood she was on a sick leave restriction and had been given clear written instruction on what she was to do in the event of an absence.  Because appellant had been provided with a specific written instruction to follow to obtain leave, her selective amnesia “she thought the NC was to call her,” is suspect.

 

Moreover, the NC testified credibly when appellant failed to contact him, he attempted to contact appellant by telephone with no success.  Her claim the Unit 2 Supervisor told her the NC would contact her if he needed the note is not believable in light of appellant’s motive to bolster her claim she did what she was required to do to obtain leave.  Here again, she exhibits selective amnesia when she fails to recall the Unit 2 Supervisor telling her to call the NC.  This ability to remember only what inures to her benefit clearly shows the existence of self-interest and motive to fabricate.  

 

Additionally, appellant’s claim she was going through medication changes and therefore overdosed and hospitalized at some point, is suspect.  She provides no documentation to substantiate her hospital stay, because she did not realize it was going to be relevant and also because she was under a time constriction.  The time constriction is of appellant’s own making, because she did not request any documents until the Friday before the hearing.  At the very least, appellant should have been able to provide discharge documents or a bill documenting a hospital stay.  Appellant’s claim she was unable to contact respondent during her alleged 2 , 3, 4, or 5 day hospitalization is not believable. 

 

Furthermore, appellant could have perhaps overcome or at least strengthened her credibility by providing her telephone bill for the entire AWOL period.  However, for reasons unknown, appellant provided only four pages of her telephone bill which does nothing to supplement her testimony she was hospitalized and so incapacitated she could not telephone respondent.  Either way, appellant has failed to provide any evidence which corroborates her inability to contact respondent and her testimony is unbelievable.   

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 [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.”

 

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.)  “A party has the burden of proof as to each fact the existence or non-existence of which is essential to the claim for relief or defense that he is asserting.”  (Evid. Code, § 500.)  Logic dictates in order for the appeal process to be consistent in each proceeding with fact finding responsibilities, the burden of proof as to each material fact must remain on the same party.  If all evidence pertinent to a material fact were evenly balanced on each side, the fact finder must find for the party which does not have the burden of proof.  (O’Connell v. C.U.I.A.B. (1983) 149 Cal.App.3d 54.)

The Memorandum of Understanding (MOU) under appellant’s Bargaining Unit expands the ALJ’s jurisdiction to include whether appellant was absent for five (5) consecutive working days.  Appellant’s argument respondent failed to indicate which (five) 5 consecutive working days appellant was absent is not persuasive.  Appellant, by her own admission, was not at work on March 21, 2011 and did not return to work until April 8, 2011. 

 

Given her regularly scheduled days off of Tuesday and Wednesday, she was not at work on March 24, 25, 26, 27, or 28th – five consecutive working days.  Moreover, she was not at work on March 31, April 1, 2, 3, 4 or 7th, an additional 6 consecutive working days.  Furthermore, respondent provided credible testimony of its designated individual, Feehan, who independently determined appellant was absent for at least five (5) consecutive working days. 

 

The MOU under appellant’s Bargaining Unit further expands the ALJ’s jurisdiction to include whether the appellant was absent without leave, that is, without the employer’s permission.  There was uncontroverted testimony appellant called respondent once, on the evening of March 21, 2011.  She failed to request leave for the two week period and was only granted time off for March 21, 2011.  None of respondent’s employees granted appellant leave for any time except March 21, 2011.

 

It is not disputed respondent granted appellant a reasonable accommodation for a medical condition just a few months prior to the AWOL separation.  And it is also not disputed her absence during the AWOL period was a continuation of that health condition.  Therefore, appellant has a satisfactory explanation for her absence as respondent, in granting appellant’s reasonable accommodation request, essentially validated her medical condition, which became increasingly worse during the AWOL period of March 21, 2011 through April 7, 2011. 

 

A civil service employer has a right to expect an employee to report for work unless the employee has been excused for illness or injury.  As stated 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.  To permit employees to remain away from work without leave would seriously impede the function of an agency.”  Appellant knew her absences from work were an issue with respondent as she had received at least two written directives on the issue of absenteeism. 

 

Specifically, appellant was on a sick leave restriction which required her to  contact the POD who would instruct her whether or not to provide a note.  Upon hearing from the POD a note was required, appellant did two things.  First, she ignored the instruction of the POD to provide medical substantiation for her absence; and second, she made sure respondent could not contact her by phone to reiterate those instructions.  This conduct, coupled with appellant’s lack of credibility, fail to meet appellant’s burden of proof she had a satisfactory explanation for not obtaining leave. 

 

Appellant was aware of respondent’s sick leave policy.  She had been placed on a sick leave restriction which set out exactly what was required of her in order to obtain leave.  Appellant’s various reasons for failing to provide timely medical substantiation are not persuasive.   

 

Because appellant suffers from a chronic condition, it is difficult to determine whether she is currently ready, able, and willing to return to work.  She provided a six-month old note from her doctor which declared her ready to return to work with no restrictions on April 4, 2011.  However, at the time of the hearing, six months later, there was no evidence to indicate she is currently ready, able, and willing to return to work. 

 

The expansion of the ALJ’s jurisdiction by the MOU includes whether the appointing power properly invoked the AWOL statute, Government Code section 19996.2.  The Coleman court (Coleman v. DPA (1991) 52 Cal.3d 1122) concluded 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 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. 

 

The AWOL statute provides civil service employers with the ability to involuntarily separate an employee from state service if they fail to appear for five consecutive working days.  In addition to appellant’s admission she was absent for five consecutive working days, respondent’s discipline officer determined appellant had been absent for at least five consecutive working days and could be properly separated from state service.  Respondent properly noticed appellant of its intent to invoke the AWOL statute and provided her with an opportunity to be heard prior to the final invocation as required by Coleman.  

Appellant has not provided sufficient evidence to meet her burden of proof in all of the six issues.  Appellant was absent for more than five (5) consecutive working days and that absence was without leave.  Appellant’s absence was without leave and without the permission of appellant’s appointing power.  Appellant proved by a preponderance of the evidence she had a satisfactory explanation for her absence, but failed to prove by a preponderance of the evidence she had a satisfactory reason for failing to obtain leave.  Appellant failed to prove by a preponderance of the evidence the AWOL statute was not properly invoked.  Appellant failed to meet her burden of proof by a preponderance of the evidence she is ready, able, and willing to return to work as a Psychiatric Technician (Safety).