DPA Case No.: 11-A-0173
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted February 21, 2012
By: Ronald Yank, 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 February 7, 2012 in Sacramento, California.
Appellant was present and represented by Elizabeth A. Dedrick, Staff Attorney, Service Employees International Union, Local 1000.
Kelly R. Nordli, Staff Counsel, represented the Employment Development Department (EDD), respondent.
I - JURISDICTION
On December 2, 2011, EDD notified appellant, by overnight mail, she was being automatically resigned for being absent without leave (AWOL) from November 28, 2011 through December 2, 2011. Appellant filed a request for reinstatement appeal with DPA on December 20, 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.
II - ISSUES
Appellant argues she had a valid reason for her absence and for not obtaining leave and is now ready, able, and willing to return to work.
Respondent contends the AWOL separation should be sustained.
The issues to be determined are:
1. Did the employee have a satisfactory explanation for her absence from November 28, 2011 through December 2, 2011?
2. Did the employee have a satisfactory explanation for failing to obtain leave from November 28, 2011 through December 2, 2011?
3. Is the employee ready, able, and willing to return to her full-time position as a Research Program Specialist I (Economics)?
4. Is appellant entitled to back pay?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant has worked for respondent’s Labor Market Information Division (LMID) since 1992. At the time of her AWOL separation she was a Research Program Specialist I (Economics) and was responsible for advising management, departmental staff and other governmental agencies on economic research findings. Her supervisor was a Research Manager III.
On November 14, 2011, appellant’s supervisor sent an Informal Letter of Reprimand to appellant’s home by courier. The Informal Letter of Reprimand advised appellant she had failed to provide medical substantiation for her September, October and November 2011 absences. The memo also stated in relevant part: “You have not indicated that you are seeking a doctor’s note or have any intention of doing so. You have requested that I not contact you at all if you are ill and yet you refuse to verify that you are too ill to work.”
Appellant understood she was to contact her supervisor if she was going to be absent, and understood she was to either phone or send an email before 10:00 a.m. for each day of absence.
Appellant explained she is somewhat familiar with respondent’s sick leave policy. She relied on section 3-3320 of the Personnel Management Handbook (PMH). Section 3-3320 refers to the “Certifying Officer” responsibilities stating, “[a]n approved sick leave document is on file no later than the end of the next complete payroll month following the last date of sick leave absence.” Appellant understood this to mean she had until the end of the following month to provide doctor’s notes to her supervisor.
Respondent’s sick leave policy at section 3-3324 also provides, “[a]n employee will be notified by his/her supervisor if his/her sick leave is disapproved.” The sick leave policy also states, “[a]bsence not approved by the supervisor is an AWOL and is reported to HRSD as dock.” On November 28, 2011, appellant was not at work. At 9:53 a.m., she sent an email to her supervisor stating she would not be at work because of a migraine. Ten minutes later, appellant’s supervisor responded with, “[t]his absence is unexcused because you have not provided medical substantiation.”
On November 29, 2011, appellant was not at work. At 9:44 a.m., appellant emailed her supervisor and told her she was unable to go to work due to a bladder infection. A few hours later appellant writes: “I am in receipt of a letter from . . . , under authority of . . . , ordering me to submit to a medical fitness-for-duty examination. How does this relate to your demands for medical substantiation?”
Appellant’s supervisor responded by telling appellant to follow the instructions in the [fitness-for-duty] letter. She also told appellant,
“[h]owever, your absences without a medical note are not approved.”
On November 30, 2011, appellant was not at work. She called her supervisor at 9:51 a.m. and left a voicemail she would not be at work because of a migraine. Appellant’s supervisor responded, “This absence is unexcused without medical substantiation.” Her supervisor also sent a letter to appellant which stated in relevant part: “[t]he department has the right to invoke this statue (sic) at the close of business on December 2, 2011, if you do not return to work or provide the appropriate requested medical documentation.”
On December 1, 2011 appellant was not at work. She left a voice mail message at 9:59 a.m. for her supervisor she was suffering with a migraine headache. On December 2, 2011 appellant did not report to work. She left a voice mail for her supervisor stating she had a migraine and would not be reporting to work. She also told her supervisor she “would not be getting a doctor’s note.” The appellant followed her voice mail message with a 2-page email to her supervisor later on the afternoon of December 2, 2011.
An excerpt of the email reads as follows: “This message should end further action by the department as comtemplated (sic) in a letter from [appellant’s supervisor] on November 30, although I note that EDD’s (sic) has shown significant inability to tempered (sic) its actions regardless of my legitimate objections.”
The email continued: “In most pointed opposition to the action threatened in [my supervisor’s] letter of November 30, 3011, is the following provision of the PMH: “An approved sick leave document is on file no later than the end of the next complete payroll month following the last date of sick leave absence.” Section 3-3320 [Emphasis in original.]
“By this rule, there has never been a basis for [my supervisor’s] daily harassment regarding substantiation, nor is there basis for immediate demand for substantiation, let alone for invoking termination under the government code. There are other provisions of the PMH that EDD has violated and which I will articulate if necessary when I am better.
“[My supervisor] stated that EDD could invoke the termination if I neither worked today, nor provided the needed documentation. In that regard, please note the following as were communicated to [my supervisor] in a voice mail:
• I am ill with migraine today. I am neither able to work nor to travel to see my doctor or even to attend upon my father who entered emergency medical care this morning.
• I will provide sick leave substantiation for yesterday upon my return to work. This breaks the five-day sequence of absences under any circumstances.”
On December 2, 2011, respondent invoked the AWOL statute under Government Code section 19996.2.
Appellant did not provide any doctor’s notes or any other type of medical substantiation to respondent during her absence from work. At the hearing, she provided one doctor’s note signed by a Nurse Practitioner. The note indicates she was seen on December 1, 2011 and was unable to attend work on December 1, 2011. No doctors testified.
IV - ANALYSIS
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 28, 2011 through December 2, 2011.
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 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.”
.
DPA has long held that injury or illness of the employee is a satisfactory explanation for not reporting to work. However, the 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, for not obtaining leave and that she is now ready, able, and willing able to return to her duties as a Research Program Specialist I (Economics). (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) Because appellant did not provide medical substantiation for her illness, she has failed to meet her burden of proof she had a satisfactory explanation for her absence. The only document appellant provided was a note signed by a Nurse Practitioner which merely repeated appellant’s unsubstantiated belief she was ill on December 1, 2011.
Appellant did not provide any other medical documentation she was ill or was treated by a physician for her ailments. Appellant’s excuses run the gamut from anxiety and depression brought on by her fear of harassment, to her alleged “I’m ill because of respondent’s harmful and illegal harassment and retaliation, migraine headaches and bladder infections.” With such a variety of medical maladies afflicting appellant, her inability to obtain one medical excuse providing her with a satisfactory explanation for her absences is suspect, and fatal to her claim her absences were valid.
Appellant did not have a satisfactory explanation for not obtaining leave.
In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court held an 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 her position. Although appellant made sure she contacted her supervisor via email before 10:00 a.m. each morning of her absence, she refused to provide medical substantiation for her absence.
Moreover, 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’s mistaken belief that, “[t]his breaks the five-day sequence of absences under any circumstances” is nothing more than arrogance and disdain for the policies of respondent. Furthermore, her reliance on only a portion of respondent’s PMH policy which best suited her needs is misplaced, especially in light of her supervisor telling her exactly what was required of her to obtain leave.
It is not for appellant to tell respondent what procedure she will follow to obtain leave. Respondent had clear written policies in place and appellant was warned she risked an AWOL separation if she failed to report to work. As stated 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. To permit employees to remain away from work without leave would seriously impede the function of an agency.” By her own admission, appellant told her supervisor she had no intention of providing the required medical substantiation.
Appellant’s ability, readiness and 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 he is asserting. (Evid. Code, § 500.) Appellant has failed to meet her burden of proof on two of the three elements on her request for reinstatement appeal. Each is essential to her appeal and no purpose would be served in determining her ability, readiness and willingness to discharge the duties of a Research Program Specialist I (Economics).
Appellant is not entitled to back pay.
“[E]xcept 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 has failed to meet elements essential to her claim. Because she has failed to prove her claim for relief, appellant is not entitled to back pay.
V - 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 she had a valid reason for her absence or for not obtaining leave, DPA need not determine the issue of whether she is ready, able, and willing to return to work. Appellant is not entitled to back pay.
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THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation, from the position of Research Program Specialist I (Economics), with the Employment Development Department, effective November 23, 2011, is denied.
