Final Decision Adopted December 22, 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 November 16, 2011 in Riverside, California.

 

Appellant was present and self-represented. 

 

Glenn C. Jones, Senior Counsel, represented the Employment Development Department (EDD), respondent.

On September 16, 2011, EDD, respondent, notified appellant he was being automatically resigned for being absent without leave (AWOL) from September 12, 2011 through September 16, 2011.  Appellant filed his request for reinstatement appeal with DPA on September 20, 2011.

 

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. (fn. 1)  DPA has jurisdiction over the appeal.

Appellant argues he believes his terms of employment were changed and therefore could not return to work when told to do so by respondent.  He also contends he is now ready, able, and willing to resume the discharge of his duties as an Employment Program Representative if the alleged dishonesty and slander by respondent ends.  Conversely, he argues if the alleged dishonesty and slander do not end, he will suffer through in order to return to work.

 

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 his absence from September 12, 2011 through September 16, 2011?

 

2. Did the employee have a satisfactory explanation for failing to obtain leave from September 12, 2011 through September 16, 2011?

 

3. Is the employee ready, able, and willing to discharge the duties of an Employment Program Representative?

 

4. Is appellant entitled to back pay?

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

 

Appellant began his career at respondent’s San Bernardino office on January 2, 2003.  At the time of his AWOL separation he was an Employment Program Representative, Permanent Intermittent (PI).  Although a PI employee, appellant was generally scheduled to work a full Monday through Friday shift from 8 a.m. to 5 p.m. From April 2011 through July 2011, he worked a modified shift due to a reasonable accommodation.  That shift allowed him to work five (5) hours, from 8:00 a.m. to 1:00 p.m. instead of the requisite eight (8) hour shift.    

 

On February 2, 2011, appellant was given a “cease and desist” directive to remain clear of the fax and mailroom areas where the Office Assistant (OA) was assigned to work.  The OA, appellant’s co-worker, had filed a complaint against appellant earlier in the year.  The directive made it clear appellant was not to access the fax or mailroom areas and to avoid any contact with the OA. 

 

Appellant’s direct supervisor was the Program Manager I (PM I).  On July 29, 2011, the PM I sent an email to his staff, including appellant, advising that appellant was returning to work full-time on August 1, 2011.  Appellant reported to work on August 1, 2011, but worked only five (5) hours because of a dentist appointment which required him to leave before his shift was over.   

 

On August 2, 2011, appellant reported to respondent’s workplace for the sole purpose of filing a Workers’ Compensation claim.  He was seen by a doctor later that day who took appellant off work until August 16, 2011.  On August 16, 2011, appellant was again evaluated based on his Workers’ Compensation claim.  The doctor took appellant off work until September 7, 2011.  Appellant does not recall what the doctor told him about his medical condition, and it is not clear from the record what medical limitations kept appellant from reporting to work.

 

On September 9, 2011, appellant went to respondent’s workplace to pick up his payroll check.  He spoke with the PM I and told him he was not coming back to work because he perceived the restriction from the mailroom as a modification of his work contract.  The PM I then asked appellant for a new doctor’s note.  Appellant told him he would not be getting a new doctor’s note.  Appellant did not work for respondent that day and did not request leave.

 

The Employment Program Manager III (EPM III) was the PM I’s supervisor.  On August 16, 2011, the EPM III sent appellant a letter directing him to report to work on September 7, 2011.  Appellant did not report to work on September 7, 2011.  On September 9, 2011, the EPM III called appellant at his home and told him to report to work on Monday, September 12, 2011 at 8:00 a.m.   Appellant told him he would not be reporting to work unless she lifted the “cease and desist” restrictions barring him from the fax and mailroom. 

 

Appellant also told the EPM III he believed he was terminated on August 1, 2011, and he would not return until his conditions were met.  The EPM III assured him he was still employed by respondent and repeated her order for him to report to work on September 12, 2011.  Appellant further told the EPM III that she must not only comply by lifting the “cease and desist” restriction, but must also put it in writing.  Appellant did not request leave and did not report to work.

 

On September 15, 2011, respondent sent appellant an informal letter of reprimand.  The informal letter of reprimand detailed events of August 1, 2011 when appellant entered the mailroom in derogation of its “cease and desist” directive.  On September 16, 2011, appellant reported to respondent’s workplace to provide respondent with a rebuttal to the informal letter of reprimand, but did not to report to work or request leave.

 

Appellant acknowledges he was not at work from September 12, 2011 through September 16, 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.) 

 

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 . . . (a) His demeanor while testifying and the manner in which he

testifies . . . (b) The character of his testimony . . . (c) The extent of his capacity to perceive, to recollect or to communicate any matter about which he testifies . . . (h) A statement made by him that is inconsistent with any part of his testimony at hearing.  (Evid. Code, § 780.)

 

The Administrative Law Judge makes the following credibility determination.  

 

Appellant’s inability to answer simple direct questions, remember receipt of any communication from his supervisor telling him to return to work, and his inability to recall telling his supervisor he wouldn’t provide a doctor’s note for his absences is incredible.  When he did answer a simple direct question, it was done in a sarcastic, snide manner.  For example, “if you say it takes me off work I guess it does” or “according to this document – what you say is true.” 

 

Moreover, appellant’s inability to recall seeing his doctor on either August 16, 2011 or September 7, 2011 or whether his Workers’ Compensation claim was accepted or denied appeared contrived.  Even more incredible is his testimony he does not recall ever being told to return to work or telling his supervisor he would not return to work unless the restrictions regarding the fax and mailroom were lifted.  Appellant’s inability to recollect the salient details of his absence renders his testimony not credible. 

 

Appellant later recalls he did talk to his supervisor when he went to pick up his check on or about September 8, 2011; returning to the office on September 16, 2011 to provide respondent with a rebuttal to his informal letter of reprimand; and picking up some personal effects.  But, appellant insists he was terminated because he believes respondent had changed the terms of his contract.  This elaborate fiction only serves to further undermine appellant’s credibility.

 

Lastly, appellant testified he is ready, able, and willing to return to work when respondent lifts the “cease and desist” restrictions.  However, he changed his testimony when he realized he must prove he is ready, able, and willing and able to return to work.  Appellant’s incredible testimony is fatal to his request for reinstatement.

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.”  In addition to the provisions of Government Code section 19996.2, an intermittent (PI) employee who waives three requests by the employing department to report for work may be automatically searated (sic) from the intermittent appointment.  (Cal. Code Regs., title 2, § 599.828.)  Appellant was properly AWOL separated under either theory as he was absent for five consecutive days and refused to report to work on three separate occasions.

 

Government Code 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 [his] absence and [his] failure to obtain leave therefor, and the department finds that [he] is ready, able, and willing to resume the discharge of the duties of [his] position or, if not, that [he] has obtained the consent of [his] appointing power to a leave of absence to commence upon reinstatement.”

 

It is axiomatic 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.  Appellant was not excused from reporting to work for any reason whatsoever.  Despite his many contentions, appellant’s absence was nothing more than a fit of temper over respondent’s handling of a valid co-worker complaint.

 

Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence he had a satisfactory explanation for his absence.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)  Because appellant does not have a satisfactory explanation for his absence, he is unable to meet his burden of proof.  His claim his “conditions of employment” had changed is not supported by any credible evidence.  As noted in the credibility determination, appellant believes he was justified in not reporting to work.  Appellant is mistaken in his belief.

 

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.”  Respondent ordered appellant to return to work on three separate occasions over a period of thirty days.  Appellant refused to request leave and did not report to work.  By failing to request leave or report to work, appellant is unable to meet his burden of proof he had a satisfactory explanation for not obtaining leave.

 

The party who bears the burden of proof has the general burden of coming forward with a prima facie case.  (Director, Office of Workers' Compensation Programs, Dept. of Labor v. Greenwich Collieries (1994) 512 U.S. 267.)  By conditioning his return to work, appellant is unable to meet his burden of proof he is ready, able, and willing to return to work.  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 he is asserting.  (Evid. Code, § 500.)

 

Appellant’s refusal to return to work because he believes his “conditions of employment were changed” indicates an unwillingness to return to work and fails to meet the requisite burden of proof. 

Appellant has not proved by a preponderance of the evidence his AWOL separation should be set aside.  Therefore he is not entitled to back pay. 

Appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for his absence.  Appellant failed to prove by a preponderance of the evidence he a valid reason for not obtaining leave.  Appellant failed to prove by a preponderance of the evidence he is now ready, able, and willing to return to his position as an Employment Program Representative.  Appellant is not entitled to back pay.