CalHR Case No.: 12-M-0158
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted December 4, 2012
By: Julie Chapman, Director
PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources (CalHR) (fn.1) at 8:00 a.m. on September 26, 2012 in Avenal, California.
Appellant was present and represented by Daniel Luna, Staff Attorney, Service Employees International Union Local 1000. Kimberly Thornton, Employee Relations Officer, represented the California Department of Corrections and Rehabilitation (CDCR), Avenal State Prison (ASP), respondent.
I - JURISDICTION
On April 24, 2012, CDCR, ASP, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from April 17, 2012 through April 24, 2012. Appellant filed a request for reinstatement appeal with CalHR on May 10, 2012.
California Government Code section 19996.2 authorizes CalHR, 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 CalHR 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. CalHR has jurisdiction over the appeal.
II - ISSUES
Appellant contends she had a satisfactory explanation for her absence, obtained leave and is now ready, able, and willing to discharge the duties of an Office Technician (Typing).
Respondent argues appellant was aware of respondent’s call-in procedures yet failed to follow those procedures or provide doctor’s notes to substantiate her absence for the period of April 17, 2012 through April 24, 2012 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 April 17, 2012 through April 24, 2012?
2. Did appellant have a satisfactory explanation for failing to obtain leave from April 17, 2012 through April 24, 2012?
3. Is appellant ready, able, and willing to return to work as an Office Technician (Typing)?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence.
Appellant began her career with Avenal State Prison on May 30, 2006. Her most recent appointment was as an Office Technician (Typing). She worked a Monday through Friday schedule from 7:30 a.m. to 4:30 p.m. shift, and had every other Monday off on a 9/8/80 schedule. Her immediate supervisor, a Classification and Parole Representative, began supervising appellant in January 2011. Appellant was experiencing attendance issues and went on an “extended sick” leave in March 2012. Appellant’s last day at work was March 13, 2012.
On March 19, 2012, respondent sent appellant its return-to work clearance process letter. The letter stated, “[o]ff work orders must be kept current and not lapse and/or expire. An employee who is absent without their supervisor’s permission (i.e. “leave”) is considered to be Absent Without Leave (AWOL). Under Government Code section 19996.2, an employee who is absent (voluntarily or involuntarily) without permission for five (5) consecutive work days may be considered to have automatically resigned from State service as of the last date on which the employee worked.”
Appellant does not deny she received the letter but does not specifically recall reading the return-to-work clearance process letter.
On March 26, 2012, appellant received a note from her doctor, but did not immediately provide it to respondent. On March 28, 2012, respondent’s Return-to-Work Coordinator (RTWC) informed appellant’s supervisor that appellant was due to return to work. Appellant did not return to work. Appellant’s supervisor called her and advised she needed to provide a doctor’s note if she was still on “extended sick” leave. Appellant told her supervisor she understood and that she would return to work on March 30, 2012.
On March 30, 2012, appellant did not return to work, but brought her supervisor a handwritten note stating she was currently out on medical and would remain off until April 17, 2012. The note indicated she would return to work on April 17, 2012 and that she had “completed all proper FMLA paperwork and turned in all doctor notes.”
Appellant also provided a doctor’s note to the RTWC on March 30, 2012. The doctor’s note indicated she could return to work without limitations on April 17, 2012. The RTWC reiterated the return-to-work clearance process which was outlined in the return-to-work clearance process letter. Appellant said she understood she could not let a doctor’s note lapse and that it was her responsibility to provide the doctor’s note to respondent. She acknowledged receipt of the return-to-work clearance process letter and said she understood the need to keep her doctor’s notes current.
On April 13, 2012, appellant obtained another doctor’s note which returned her to work on May 5, 2012 without restriction. Appellant did not provide the April 13, 2012 doctor’s note to respondent. On April 13, 2012, appellant sent a text to her supervisor’s state-issued cell phone stating she would be off from work the rest of the month. She did not request leave. Appellant’s supervisor did not approve leave or respond to appellant’s text message and never heard from appellant again.
On April 24, 2012, appellant’s supervisor advised the Employee Relations Officer (ERO) that appellant had been absent without leave since April 17, 2012. On April 24, 2012, respondent invoked the AWOL statute. Appellant was in Fairfield, California when she learned from a co-worker she was no longer employed and was barred from respondent’s workplace.
On April 25, 2012 at approximately 4:00 p.m. appellant returned home and called the ERO. He told her that she had been AWOL separated from state service because she failed to obtain leave during her absence for five (5) consecutive working days. He told her that she was no longer employed and could request a Coleman hearing. She responded with a series of expletives and hung up.
IV - CREDIBILITY DETERMINATION
The Administrative Law Judge makes the following 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 or veracity or their opposites. . . (i) The existence or nonexistence of any fact testified to by [her]. (Evid. Code, § 780.)
Despite appellant’s testimony she suffered from numerous medical conditions, appellant offers no proof of the existence of any medical condition. Furthermore, her claim she suffers from post-traumatic stress disorder (PTSD) is not supported by the existence of any medical documentation. Nor is her testimony she suffered from high blood pressure, nausea, vomiting, or anxiety attacks and was hospitalized “numerous times” and rushed to the Emergency Room on at least two occasions. Appellant’s testimony is made more incredible by her argument she was abusing alcohol and other substances and was with the "wrong crowd." This argument negates her testimony she suffered from, or was treated for, any of these medical maladies.
The most troubling of appellant’s testimony is her written statement to her supervisor she had “completed all proper FMLA paperwork and turned in all doctor notes.” There was competent evidence appellant never completed or provided FMLA paperwork to respondent. This falsehood makes appellant’s claim “she lost the doctor’s note” even less believable, because her character for dishonesty is evident in her testimony. Moreover, her claim she “always texted her supervisor” is another unsupported fact, as appellant’s supervisor competently testified he thought the text “bizarre” as she had never texted him before.
Lastly, appellant’s claim she was under stress because of respondent’s layoffs, which required her to do more work, belies her claim she is ready to return to work. There was no evidence the stressful situation no longer exists at respondent’s workplace. Equally incredible is appellant’s testimony her doctor told her to avoid stress but provides not a scintilla of evidence of the truthfulness of this claim.
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 as she was not at work from April 17, 2012 through April 24, 2012.
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 satisfactory explanation for being absent, whether she had a satisfactory explanation for not obtaining leave and whether she is ready, able, and willing to return to work. The Coleman court concluded the employee’s unapproved absence is deemed an abandonment of employment or a constructive resignation. “Under the AWOL statute, when an employee is absent without leave for five consecutive days, it is the employee who severs the employment relationship, not the state.” (Coleman, supra, 52 Cal.3d 1102 at p. 1115.)
Appellant does not have a satisfactory explanation for her absence.
Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence she had a satisfactory explanation for her absence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) CalHR has long held an illness of an employee or family member is a satisfactory explanation for an absence; however, the appellant failed to prove by a preponderance of the evidence she had a satisfactory reason for her absence.
Appellant’s argument she suffered from a severe mental illness and other medical conditions is not supported by the evidence. Notwithstanding her failure to provide any medical documentation she was ill, appellant admits the real reason for her absence was her abuse of alcohol and other substances. Substance abuse is not a satisfactory explanation for an absence from the workplace.
Appellant does not have a satisfactory explanation for not obtaining leave.
Appellant must prove by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave. (Aguilar, supra, 25 Cal.4th 826 at p. 846.) Appellant was notified several times, both verbally and in writing, that she must not let her off-work orders lapse or she would risk an absence without leave (AWOL) separation. By her own admission, appellant knew of respondent’s return-to-work clearance process, yet failed to submit timely doctor’s notes or request leave.
Additionally, appellant’s testimony she lost the April 13, 2012 doctor’s note is not believable. Moreover, her behavior after she claims to have lost the doctor’s note is not indicative of an employee attempting to obtain leave. She did not call respondent’s RTWC to advise of the lost note, nor did she call her supervisor to advise she would not be reporting to work or to request leave.
An employer has a right to expect an employee to report for work unless the employee has been excused for illness or injury or for other non-medical reasons. As opined in Bettie Davis v. Department of Veterans Affairs (1986) 792 F.2d 1111, 1113: “an essential element of employment is to be on the job when one is expected to be there.” Appellant did not obtain leave and her claim she did what she thought she was supposed to do is not supported by the evidence and is fatal to her claim she had a satisfactory reason for not obtaining leave.
Appellant’s ability, readiness or willingness to return to work is no longer at 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 essential elements of her claim, no purpose would be served for CalHR to determine her ability, readiness or willingness 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. Because appellant failed to prove essential elements of her claim, her ability, willingness and readiness is no longer at issue.
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THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation, from the position of Office Technician (Typing), with the California Department of Corrections and Rehabilitation, Avenal State Prison, effective April 16, 2012, is denied.
Footnote
1. On July 1, 2012, the Department of Human Resources succeeded the former Department of Personnel Administration in all functions and duties.
