Final Decision Adopted April 12, 2012

By:  Julie Chapman, Acting Director

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on March 5, 2012 in Avenal, California.

 

Appellant was present and represented by Daniel L. Luna, Staff Attorney, Service Employees International Union, Local 1000.  Debra Cribbins, Medical Employee Relations Officer, represented the California Department of Corrections and Rehabilitation (CDCR), Avenal State Prison (ASP), California Correctional Health Care Services (CCHCS), respondent.

On November 23, 2011, CDCR, ASP, CCHCS, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from November 15, 2011 through November 23, 2011.  Appellant filed a request for reinstatement appeal with DPA on December 8, 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 satisfactory explanation for her absence, obtained leave and never intended to resign. 

 

Respondent argues appellant failed to follow its leave procedure and the action invoking the AWOL statute should be sustained. 

 

The issues to be determined are:

 

1. Did appellant have a satisfactory explanation for her absence from November 15, 2011 through November 23, 2011?

 

2. Did appellant have a satisfactory explanation for failing to obtain leave from November 15, 2011 through November 23, 2011?

 

3. Is appellant ready, able, and willing to return to work as a Licensed Vocational Nurse (Correctional Facility)?

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

 

Appellant began her career with Avenal State Prison on March 10, 2008.   As a Licensed Vocational Nurse, she provided vacation relief for respondent’s nursing staff.  Her schedule was varied and irregular as she adopted the vacationing nurses’ schedules. 

 

On October 2, 2011, appellant called respondent’s “sick call” line to tell them her mother was in the hospital.  The “sick call” line is answered 24 hours a day by a Supervising Registered Nurse (SRN).  Appellant was not at work from October 2, 2011 to October 10, 2011.  On October 10, 2011, appellant was placed off work by her doctor due to “situational stress.”  The off-work order (OWO) indicated appellant could return to work on November 14, 2011.  Appellant relied on the doctor to fax the OWO to respondent.   

 

The Return-to-Work Coordinator (RTWC) is responsible for respondent’s reasonable accommodation, return to work and OWO issues.  On October 21, 2011, the RTWC received an OWO for appellant to November 14, 2011.  Once she receives an OWO from an employee, she advises the employee’s supervisor.  On October 25, 2011, after appellant had been absent for more than 5 days, the RTW office mailed a “RTW clearance process” memo to appellant. 

 

The “RTW clearance process” memo was originally issued to all staff on October 11, 2010, and is sent to all employees who are absent for more than five (5) days.   Appellant denies receipt of the October 11, 2010 memo which states in relevant part:

 

“If an employee’s injury or illness precludes him/her from attending work, he/she must contact their supervisor, to advise him/her of their work status, and provide the RTW Office with off-work orders.  Off work orders must be kept current and not lapse and/or expire.” 

 

The memo also warned any employee absent for five consecutive work days, without a valid OWO, would be considered absent without leave; and in order to secure leave after an absence of more than five days, an employee must submit an OWO to the RTW office.  Five days after an employee’s OWO expires and no new OWO is received, the RTWC forwards the absent without leave information to the Employee Relations Officer.  

 

Appellant’s mother died on November 4, 2011.  On November 13, 2011, appellant called respondent to advise she was going back to the doctor.  On November 14, 2011, appellant was seen by her doctor who gave her an OWO until December 5, 2011.  On November 14, 2011, appellant called respondent to advise of her new OWO until December 5, 2011.  She did not contact respondent’s RTWC or provide a new OWO. 

 

On November 23, 2011, respondent issued appellant a Notice of Automatic Resignation By Absence Without Leave (AWOL) letter.  At the hearing appellant indicated she is ready to return to work and provided a doctor’s note returning her to work as of March 5, 2012.  No doctors testified.

Generally referred to as the AWOL statute, 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.”  It is not disputed appellant was absent for more than five consecutive days as she was not at work from November 15, 2011 through November 22, 2011. 

 

Appellant has the burden of proof and must prove by a preponderance of the evidence she had a valid excuse for her absence and failure to obtain leave and that she is currently ready, able, and willing to return to work.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 

 

DPA has long held an illness of an employee or family member is a satisfactory explanation for an absence.  The appellant sought medical attention during the AWOL period of November 15, 2011 through November 23, 2011.  She was diagnosed with “situational stress” and excused from work by her doctor during the AWOL period.

 

Appellant’s argument she should have received a courtesy call from respondent before she was AWOL separated is not persuasive.  In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court concluded the state employer need not attempt to locate AWOL employees and prove the employee intended to abandon her position.  If appellant valued continued employment, it was incumbent upon her to follow respondent’s instructions to obtain leave.  She did not.

 

Moreover, appellant’s argument she did not understand she was required to send her doctor’s note to the RTWC is without merit.  Appellant made a hearsay objection to the Proof of Service (POS) offered by respondent to prove the “Return-to-work clearance process” was mailed to her home address on October 25, 2011.  However, there is sufficient reliability for the trier of fact to rely on the POS.  

 

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.)  Even though she claims non-receipt of respondent’s OWO memo, appellant understood it was her responsibility to provide doctor’s notes. 

 

Furthermore, because the “Return-to-work clearance process” policy was provided to appellant on more than one occasion, its reliability is certain.  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.)  Because appellant has the burden of proof to show she had a satisfactory explanation for not obtaining leave, respondent must prevail on this issue.

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.)  Because appellant has not proved an essential element of her claim, DPA need not determine her ability, readiness or willingness to return to work.

Appellant proved 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, willingness and readiness is no longer at issue.