Final Decision Adopted February 7, 2012

By:  Ronald Yank, Director

 

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on December 12, 2011 in Sacramento, California.

 

Appellant was present and represented by Liz Dedrick, Staff Attorney, Service Employees International Union, Local 1000 (SEIU – Local 1000). 

 

Keith B. LaMar, Labor Relations Counsel, Department of Personnel Administration, represented the Department of Consumer Affairs (DCA), respondent.

On August 26, 2011, DCA, respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from July 20, 2011 through August 25, 2011.  Appellant filed a request for reinstatement appeal with DPA on October 4, 2011.  On October 10, 2011, SEIU Local 1000 filed a good cause motion for late appeal on appellant’s behalf.  On November 1, 2011, respondent filed an opposition to appellant’s good cause appeal.  On November 4, 2011, appellant filed a response to respondent’s opposition.  Title 2, California Code of Regulations, section 599.904 allows DPA to accept a late filed appeal on a showing of good cause.  The ALJ found good cause for the late filing.

 

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.  DPA has jurisdiction over the appeal.  

Appellant argues he had a valid reason for his absence and for not obtaining leave and he is ready and able to return to work.

 

Respondent argues appellant failed to return to work at the end of his FMLA leave, failed to follow the procedures for obtaining leave and abandoned his position as an Associate Governmental Program Analyst. 

 

The issues to be determined are:

 

1. Did the employee have a satisfactory explanation for his absence from July 20, 2011 through August 25, 2011?

 

2. Did the employee have a satisfactory explanation for failing to obtain leave from July 20, 2011 through August 25, 2011?

 

3. Is the employee ready, able, and willing to return to his full-time position as an Associate Governmental Program Analyst?

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

 

Appellant began working for respondent, DCA, in September 2005.  At the time of his AWOL separation, he was an Associate Governmental Program Analyst (AGPA) in respondent’s Professional Fiduciaries Bureau (PFB).  As an AGPA, appellant performed the more responsible, varied, and complex technical analytical staff services assignments, such as policy analysis and formulation and must have demonstrated intellectual abilities.

 

In December 2010, the acting Chief of PFB had some extra policy writing projects and knew appellant had taught a class on the subject and was familiar with the process.  On December 2, 2010, the Chief of the Cemetery and Funeral Bureau (CFB) and the acting Chief of the Program and Consumer Services Division (PCSD) approved appellant’s temporary relocation to PFB.   

 

In early 2011, the acting Chief of PFB and the acting Chief of PCSD received employee complaints regarding appellant’s disruptive behavior.  Appellant was asked to meet with the both acting Chiefs and a counseling session was held on February 4, 2011.  On March 18, 2011, the acting Chief of PFB memorialized the February 4, 2011 counseling session to a writing.  On April 22, 2011, more behavior problems with appellant surfaced. 

 

On April 22, 2011, both acting Chiefs had another counseling session with appellant regarding his disruptive behavior.  Appellant became very upset and angry, and the acting Chief of PFB approved two weeks of leave for appellant which had previously been denied.  The acting Chief never demanded appellant take two weeks off, but asked appellant to go home and appellant readily agreed.  Appellant went home as requested, but did not return after the end of the two weeks on May 9, 2011.

 

On May 9, 2011, the acting Chief of PFB received a doctor’s note for appellant stating he could not return to work until July 20, 2011.  On July 18, 2011, appellant provided a Certification of Health Care Provider to respondent’s Office of Human Resources.  The original return-to-work date of July 20, 2011 was crossed out and “through 08-31-2011” was written in its place.

 

Respondent’s Health and Safety Analyst (HSA) is responsible for review and approval of Family Medical Leave (FMLA) and reasonable accommodation requests.  The HSA reviewed appellant’s Certification of Health Care Provider information and on July 19, 2011, sent appellant a “delay memo” because the required information was not provided. 

 

A “delay memo” is sent if additional information is required to determine FMLA eligibility.  The HSA required additional information because the date of July 20, 2011 had been changed to August 31, 2011.  The “delay memo” requested the additional information be sent by August 2, 2011 and warned appellant his FMLA request was at risk. 

 

Appellant did not report to work on July 20, 2011 and the acting Chief of PFB attempted to contact him by phone.  He left a message for appellant to return his call, but did not hear from appellant.  The following day, July 21, 2011, both acting Chiefs went to various departments looking for appellant.  None of the other managers had heard from appellant, but a co-worker said he had talked to appellant a few weeks earlier.  The co-worker indicated appellant would not be returning to work until September 1, 2011.  The acting Chief of PCSD then called appellant and left a message stating he needed to return to work immediately.

 

Appellant did not report to work on July 21, 2011 or return the acting Chief’s phone call.  The acting Chief later learned appellant had a doctor’s note through August 31, 2011.  She called appellant again and told him she understood a doctor’s note had been received, but did not approve leave for appellant at that time.  On July 27, 2011, she received an email from appellant stating he was returning to work in September. 

 

On August 3, 2011, the HSA sent appellant a letter denying his FMLA request because she had not received the requested information.  On August 12, 2011, she sent a letter to appellant’s doctor with a copy to appellant, again requesting additional information because appellant had not returned to work.  The doctor responded stating appellant’s condition was chronic and would require treatment for the rest of his life.  The doctor also indicated appellant required only 2 hours once a month for doctor’s visits. 

 

The HSA approved appellant’s FMLA request through December 31, 2011 on an intermittent basis of 2 hours per month.  On August 16, 2011, she sent an approval memo to appellant reflecting intermittent leave of “up to two hours per month” through December 31, 2011.  On August 18, 2011, the acting Chief of PCSD was told by the HSA there was no valid substantiation for appellant’s absence from work. 

 

The acting chief of PCSD immediately telephoned appellant and left a message his doctor’s note was inadequate to substantiate his absence.  The Division Chief (DD) of the Consumer Information Center and Complaint Resolution Program, Consumer Services Division (CICCRP, CSD) , also telephoned appellant on August 18, 2011 and left messages telling appellant he had been expected back at work in mid-July.  She also explained he was only approved for 2 hours per month and must report to work. 

 

In response, appellant emailed the acting Chief of PCSD on Sunday, August 21, 2011.  His three-page, single-spaced email, states in relevant part:

 

“Moreover, your use of the term, “AWOL” is entirely inappropriate.  Absent Without Leave (AWOL) is a military term used to incriminate soldiers in service to the Armed Forces of the United States of America when they desert their commanders and refuse to fight, most often out of fear, which is perfectly understandable.  The Department of Consumer Affairs, however, is not a branch of the U.S. Armed Forces, nor am I a member of their ranks, thus once again, your language is inaccurate, accusatory, and in violation of your own stated policies, and frankly, quite insulting.

 

[My] attorney has been apprised of all this and has agreed with the correctness of my assessment of these events.  Currently, I have no plans to pursue this matter in a court of law, but if these conditions do not improve immediately and permanently, I will seriously consider doing so.

 

On September 1, 2011, at 8:00 a.m., I will report directly to the Correspondence Unit.  I will phone [ . . .] Monday morning, August 22, 2011, to confirm that arrangement.  I will not consult with you any further.”

 

On August 22, 2011, the acting Chief of PCSD advised appellant by email he needed to provide further documentation because the medical documentation he submitted was insufficient to substantiate his absences.  She also advised him to resolve the issue with his new supervisor, the DC of CICCRP, CSD, as quickly as possible.  Appellant responded to the acting Chief of PCSD later that morning stating, 

 

“Hi [ . . .].  I’ve already received documentation indicating my FMLA benefits have been approved.  That will be all.  I’m on leave.  Leave me alone so I can get some rest. Good bye.”

 

On August 22, 2011, appellant also left the DC of CICCRP, CSD a voice mail message stating he would report to work on September 1, 2011. 

 

On August 26, 2011, respondent sent appellant a letter invoking the AWOL statute under Government Code section 19996.2. 

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.)  “[I]f the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination . . . .”  (Gov. Code, § 11425.50(b).)

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 his testimony at the hearing, including, but not limited to . . . (b) The character of his testimony . . . (h) A statement made by him that is inconsistent with any part of his testimony at hearing . . . (i) The existence or nonexistence of any fact testified to by him.  (Evid. Code, § 780.)  The ALJ makes the following credibility determination.  

Appellant claims to have been “mystified” at his AWOL separation because he believed he had leave until September 1, 2011.  Appellant’s so-called confusion at his AWOL separation renders his testimony incredible.  Appellant, who wrote a three-page dissertation on the true definition of AWOL, cannot then profess bewilderment at respondent’s actions when he failed to substantiate his absence from work. 

Equally incredible is appellant’s testimony when asked if he ever performed work after April 22, 2011, “I can’t answer the question – you need to define ‘work’ more specifically.”  His claim he did not understand what was meant by the word ‘work’ is yet a further indication his testimony lacks integrity.  By virtue of his own job description, appellant was an analyst who specialized in writing procedures and manuals and his claim he did not understand the meaning of the word ‘work’ is beyond belief.

Additionally, appellant testified he did not understand the use of the word  “intermittent” as it applied to his approved FMLA leave.  Here again, appellant failed to testify with veracity.  If he did not know the meaning of the word “intermittent” he could have looked it up or read the notice more carefully.  It clearly stated his leave was approved for only “2 hours per month.”  Appellant, an analyst responsible for interpreting policies and procedures for respondent, feigning ignorance of words like, “work” or “intermittent,” is indicative of his lack of credibility.

Appellant’s tenor during the hearing was haughty and arrogant.  He either answered non-responsively to direct questions or overthought his response and stated, “I don’t recall”.  Throughout the hearing, appellant knew exactly when to say, “I don’t know” or “I don’t recall” when he determined a different answer would best suit his needs.

Generally referred to as 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 he was not at work from July 20, 2011 through August 25, 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] 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.”

 

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 and failure to obtain leave and he is currently ready, able, and willing to return to work.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 

 

Despite various doctor’s notes and certifications provided by appellant, none give appellant a satisfactory explanation for his absence.  The doctor’s note providing “time off” until September 1, 2011 only excused appellant for 2 hours a month.  Instead of returning to work, he decided to use the note in an attempt to take over 6 weeks off from work.  Appellant knew as early as August 16, 2011 his FMLA leave was approved for only 2 hours per month; therefore his argument he did not know the meaning of the word intermittent is not persuasive. 

 

Appellant did not have a satisfactory explanation for not obtaining leave.

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 his burden of proof on two of the three elements on his request for reinstatement appeal.  Each is essential to his appeal and no purpose would be served in determining his ability, readiness and willingness to discharge the duties of an AGPA.

 

However, it should be noted appellant balked when asked if he is willing to return to work.  He testified he is not truly willing to return to work because of the work environment - but needs the work.  His reluctance to return to work is insufficient to meet his burden of proof he is ready, able, and willing to discharge the duties of an AGPA. 

Appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for his absence, or a satisfactory explanation for not obtaining leave from respondent.  Because appellant failed to prove these issues by a preponderance of the evidence, DPA need not determine whether appellant is ready, able, or willing to discharge the duties of an AGPA.