DPA Case Number 09-M-0009 - Request for Reinstatement after Automatic Resignation (AWOL)

Final Non-Precedential Decision Adopted: August 6, 2009

By: David Gilb, Director

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on May 4, 2009 in Riverside, California.

Appellant was present and was represented by Nellie D. Lynn, Labor Relations Representative, Association of California State Supervisors.

Amy Carmona, Staff Services Manager I, Specialist and Ron Cassidy, Staff Services Manager I, Specialist, represented the California Department of Transportation, respondent.

On January 23, 2009, the California Department of Transportation, respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from January 14, through January 23, 2009. Appellant filed a request for reinstatement appeal with DPA on January 29, 2009.

California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation if he makes a satisfactory explanation as to the cause of his absence and his failure to obtain leave and DPA finds he is ready, able, and willing to resume the discharge of the duties of his position. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant claims he had a valid reason for his absence and for his failure to obtain leave and he is ready, able, and willing to return to work.

Respondent contends appellant is not ready, able, and willing to resume the duties of a Tree Maintenance Supervisor and he failed to provide a valid reason for his absence and to obtain leave.

The issues to be determined are:

The evidence established by a preponderance of the evidence:

Appellant began working for respondent on February 26, 1992. His most recent position was as a Tree Maintenance Supervisor for respondent's District 12. The duties of a Tree Maintenance Supervisor are to work with and supervise crews of workers engaged in trimming, shaping, cultivating and planting ornamental and shade trees and perform roadside vegetation control along transportation facility rights of way and at state facilities; perform aerial rescue when required; and other related highway maintenance work.

Appellant filed a Workers' Compensation claim in March 2008 for stress associated with working with his supervisor, CalTrans Area Superintendent. Prior to the superintendent becoming his supervisor, appellant filed a claim for work-related stress. His March 2008 claim was denied. No doctors were called to testify.

On October 28, 2008, his treating physician wrote the following on appellant's behalf: "appellant needs to be moved to another cost center under a different supervisor . . . his current supervisor is affecting his health and well-being, by the stress and related anxiety he is experiencing."

Appellant filed four reasonable accommodation requests which were all denied by respondent. A request dated October 30, 2008 stated: "I have been subjected to [retaliation/harassment and differential treatment] by his supervisor, and two other individuals. No evidence was submitted to substantiate a retaliation claim.

On January 8, 2009, appellant's doctor provided him with another medical excuse which stated: "Due to a medical condition, the patient is unable to (sic) he is not cleared to work until he is moved to a different work location or cost center that is not managed by either appellant's supervisor or the 2 other individuals. And, he is returned to his prior pay scale." The supervisor's supervisor, a Maintenance Manager II, visited the doctor's office to challenge the authenticity of the document on January 22, 2009. He was told the note was authentic.

On January 9, 2009, appellant filed a Non-Industrial Disability (NDI)1 claim alleging work-related stress. He also filed a final reasonable accommodation request on January 9, 2009, requesting he not work under "his supervisor, the supervisor's supervisor or the two other individuals. Appellant has never met one of the other two individuals. Appellant lacks credibility as it relates to his illness and his ability to work with various supervisors.

The supervisor sent appellant a letter advising him of his rights under the Family Medical Leave Act (FMLA) on January 13, 2009. The letter required the appellant to furnish medical certification no later than January 29, 2009. The very next day, the supervisor sent another letter requiring appellant submit medical substantiation no later than the close of business on January 22, 2009.

On January 16, 2009, appellant filed a Certification of Health Care Provider to complete his Family Medical Leave Act (FMLA) request and a Leave of Absence request for the period January 31, 2009 to August 3, 2009.

Appellant's last day of work was January 7, 2009. Appellant did not call his supervisor to report his absence on January 14, 2009. He does not recall if he called his supervisor on January 15, 2009 and did not call on January 16, 17, 20, or 21, 2009. January 19, 2009 was a state holiday.

Appellant qualified his ability to return to work and did not testify credibly. He was willing to return to his employment only if respondent changed his reporting structure and reversed his 10% reduction in salary.

Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with DPA. Section 19996.2(a) also provides: "Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement."

Additionally, 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 he had a valid excuse for being absent; whether he had a valid reason for not obtaining leave; and whether he is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

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 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 his Coleman hearing.

Appellant's claim his supervisors made him mentally and physically ill is not a satisfactory reason not to report to work. No doctors were called to testify and the medical documentation is appellant's own self-assessment he was ill from January 14, 2009 to January 23, 2009. Moreover, the doctor's notes are unique because appellant's "treatment" involved the reversal of a 10% pay reduction which was part of a prior disciplinary action. The "treatment" also required he be removed from the direct supervision of his supervisor in order to become well.

Similarly, respondent's inability to accommodate appellant's request for reasonable accommodation does not strengthen appellant's argument he had a valid reason for his absence.2 In order to find appellant had a valid reason for his illness, the trier of fact would have to conclude "my supervisor made me sick" is a valid reason for an absence. It is not. Additionally, appellant's request for FMLA leave does not involve the AWOL period, because it was requested to start on January 31, 2009, eight days after the AWOL period ended.

In order to hold appellant responsible for failing to obtain leave, respondent must send a clear message to the appellant as to what is required to obtain leave. Because respondent's requirements to obtain leave were unclear, appellant had a valid reason for not obtaining leave. Specifically, after telling appellant on January 13, 2009 he had until January 29, 2009 to provide the required documentation, 24 hours later respondent changed the date to January 22, 2009, and invoked the AWOL statute against appellant on January 23, 2009. Appellant had the right to rely on respondent's representation he had until January 29, 2009 to provide the required documentation.

On direct examination, appellant was asked three times whether he was ready, able, and willing to return to work. He finally answered with a qualified response he would give it a try. His qualified response is equivocal and not compelling testimony he is truly ready, able, and willing to return to work. Furthermore, there are a number of supervisors appellant does not want to work with or around. There was no evidence presented to show these other supervisors would not "make appellant sick." Lastly, appellant could not recall the last time he saw his doctor and did not provide a new doctor's note indicating he is ready, able, and willing to resume the duties of a Tree Maintenance Supervisor.

Appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for being absent from January 14, 2009 through January 23, 2009, or that he is ready, able, and willing to return to work as a Tree Maintenance Supervisor. Appellant proved by a preponderance of the evidence he had a satisfactory explanation for not obtaining leave.

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WHEREFORE IT IS DETERMINED, the appeal of appellant for reinstatement after automatic resignation from the position of Tree Maintenance Supervisor with the Department of Transportation effective January 15, 2009, is denied.

1. NDI is for non-work-related injuries.

2. The parties were advised the jurisdiction in this matter is limited to three issues. Failure to reasonably accommodate appellant is not one of those issues.