DPA Case No.: 12-B-0003 - Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted March 28, 2012
By: Julie Chapman, Acting Director
PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 6, 2012 in Corcoran, California.
Appellant was present and represented by Daniel L. Luna, Staff Attorney, Service Employees International Union, Local 1000.
Rachel Spinella, Medical Employee Relations Officer, represented the California Department of Corrections and Rehabilitation (CDCR), California Substance Abuse Treatment Facility and State Prison at Corcoran (SATF – COR), California Correctional Health Care Services (CCHCS), respondent.
I - JURISDICTION
On December 21, 2011, CDCR, SATF – COR, CCHCS, respondent, notified appellant, she was being automatically resigned for being absent without leave (AWOL) from November 22, 2011 through December 21, 2011. Appellant filed a request for reinstatement appeal with DPA on January 4, 2012.
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.
II - ISSUES
Appellant argues she had a satisfactory explanation for her absence and believes she obtained leave. Appellant also believes she is not currently ready, able, or willing to return to work as a Licensed Vocational Nurse.
Respondent argues appellant failed to report to work when ordered to do so and the action invoking the AWOL statute should be sustained.
The issues to be determined are:
1. Did the employee have a satisfactory explanation for her absence from November 22, 2011 through December 21, 2011?
2. Did the employee have a satisfactory explanation for failing to obtain leave from November 22, 2011 through December 21, 2011?
3. Is the employee ready, able, and willing to return to work as a Licensed Vocational Nurse?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began work with respondent in October 2008 as a Licensed Vocational Nurse. A Licensed Vocational Nurse provides care to inmates with mental, emotional or developmental disabilities and other related work. Appellant worked the second watch from 6:00 a.m. to 2:00 p.m. and ran the pill window on “B” yard. Her last day at work was July 18, 2011.
By October 4, 2011, the appellant had exhausted all her leave balances. On October 20, 2011, the Chief Nurse Executive (CNE), sent appellant a letter detailing the need to request a Leave of Absence (LOA). The letter stated in relevant part:
“At this time, in order for to you (sic) continue to be off work, you need to obtain approval to do so. You must request a leave of absence in writing and clearly state the reason for the leave of absence as well as its anticipated length.”
The letter required appellant to provide a LOA request and medical substantiation by close of business, Monday, October 24, 2011 to the Chief Executive Officer (CEO).
The letter also required the medical substantiation include the date she became unable to work, the anticipated length of her absence and specific medical restrictions. After she received the letter, appellant spoke with a union representative to determine what she should do.
On October 21, 2011, appellant sent a letter to the CEO. The letter requested a LOA and included several doctor’s notes, but did not indicate the anticipated length of absence or any specific medical restrictions. One of the doctor’s notes indicated she could return to work on November 21, 2011. Appellant did not return to work on November 21, 2011.
The CNE called appellant’s doctor in an attempt to ascertain appellant’s medical restrictions. She was told appellant “could not leave her home.” Upon hearing appellant was confined to her home, she asked appellant’s husband, who also worked at SATF, if appellant was okay. The husband did not express any unusual concern. The CNE was later told by other SATF employees the appellant had been seen at an Applebee’s restaurant and a Disney on Ice show in Fresno. There were also postings on Facebook she and her family spent a week on Pismo Beach.
Appellant admits she would leave her home at times because, “I had four kids and had to at least be out doing motherly things - you know, like going to Disney on Ice but the whole time I was medicated.” She explained she “could leave the house if I felt okay” and “can’t be stuck in the house all day.” Her health care provider told her, “if you feel comfortable you could go out.”
The Supervising Registered Nurse II (SRN II) is appellant’s direct supervisor. An employee must call their supervisor to request leave unless they have already been approved for the time off. The CNE explained it is the employee’s responsibility to contact the supervisor if they are not going to report to work. The CNE never knew when appellant was going to return to work because appellant would provide a new doctor’s note, but did not obtain permission or approval.
On October 31, 2011, the CEO sent appellant a letter approving her LOA request through November 21, 2011. The letter advised appellant:
“If your doctor extends your need to be away from work beyond November 21, 2011 you must notify your supervisor and the return to work department. You must also provide medical substantiation and request and extension of your leave of absence to me by the close of business Monday November 21, 2011. If you fail to do so, you will be considered absent without leave (AWOL) and an absence without leave for 5 consecutive working days constitutes an automatic resignation from State service.”
Appellant provided another doctor’s note but did not request additional leave or talk to her supervisor.
On December 21, 2011, the CEO sent appellant an AWOL notice by regular and overnight mail. Delivery of the AWOL notice was attempted four times from December 23, 2011 through December 27, 2011. Appellant has no explanation why she did not receive the AWOL notice during that period. She explained she may have been “taking the kids to school” or may have merely been asleep.
On December 22, 2011, a day after respondent invoked the AWOL statute, appellant submitted another LOA request. That same day, respondent advised appellant her LOA request was denied. At the hearing, appellant provided a doctor’s note indicating she “will be prepared to return to work by April 2, 2012.” When asked why she couldn’t go back to work tomorrow – she refused to answer, but stated she has kids to support and she would, “just make herself” go to work.
IV - 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 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 self-serving claim she never received the October 31, 2011 letter is not believable. The letter was mailed to her correct address and no mail was returned as undeliverable to respondent. Appellant has a distinct motive to claim non-delivery of the letter, because it warned her she would be considered AWOL and automatically resigned from state service if she failed to report to work or provide appropriate medical substantiation.
Appellant also made several inconsistent statements during her testimony. She testified she was not on medication when driving the kids to school; which is a direct contradiction to her earlier testimony she was always on medication whenever she left her house. Appellant also testified she knew to contact the on-call nurse and contact her supervisor if she did not report to work. This is in direct contradiction to later testimony she did not receive any notification from respondent advising she had to contact her supervisor.
Appellant’s self-serving, inconsistent testimony is not credible.
V - ANALYSIS
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.
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.”
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 his or her position. Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence each essential element of her claim. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
Appellant does not have a satisfactory explanation for her absence.
Despite doctor’s notes stating, “excuse [appellant] from missing work due to acute illness,” appellant did not have a satisfactory explanation for her absence. By her own admission, she had to go outside the home to do “motherly things.” If appellant was able to care for her children, she should have been able to report to work and carry out the duties of a Licensed Vocational Nurse. Moreover, her Nurse Practitioner advised her, “she could go out if she felt comfortable.” Because feeling comfortable is solely a subjective determination by appellant, it is not a valid reason for failing to report to work.
Appellant does not have a satisfactory explanation for not obtaining leave.
Appellant proffers no valid argument for failing to obtain leave. She understood she needed to contact her supervisor to obtain leave, and understood it was neither her Nurse Practitioner or the RTW office that approved her leave. Appellant did not contact her supervisor to obtain leave and she did not have permission to be away from work during the AWOL period of November 22, 2011 through December 21, 2011. Despite respondent’s warning letter of October 31, 2011, appellant unreasonably believed she was on an approved leave of absence.
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.”
For reasons known only to appellant, she complied with only a portion of respondent’s requirements and should not be surprised her failure to comply led to her AWOL separation. Although she provided doctor’s notes for the period beginning July 18, 2011 to November 21, 2011, she did not follow respondent’s instructions to provide additional information regarding her absence. Appellant merely requested a leave of absence, but none was granted after November 21, 2011.
Appellant is not ready able and willing to return to work.
By her own admission, appellant is not currently ready or able to return to work.
VI - CONCLUSIONS OF LAW
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. By her own admission appellant is not ready, able, and willing to return to her position as a Licensed Vocational Nurse.
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THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation, from the position of Licensed Vocational Nurse, with the California Department of Corrections and Rehabilitation, California Substance Abuse Treatment Facility and State Prison at Corcoran, California Correctional Health Care Services, effective November 21, 2011, is denied.
