Final Decision Adopted January 11, 2013

By:  Julie Chapman, Director

 

 

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources  (CalHR) (fn. 1) at 9:00 a.m. on September 27, 2012 in Delano, California.

 

Appellant was present and self-represented.  Penny Cascio, Medical Employee Relations Officer (Medical ERO), California Department of Corrections and Rehabilitation (CDCR), California Correctional Health Care Services (CCHCS), represented CDCR, Kern Valley State Prison (KVSP), CCHCS, respondent.

On May 1, 2012, CDCR, KVSP, CCHCS, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from April 19, 2012 through May 1, 2012.  Appellant filed a request for reinstatement appeal with CalHR on May 7, 2012.  On May 8, 2012, respondent filed an “Amended Notice of Automatic Resignation by Absence without Leave (AWOL)” advising appellant she was being automatically resigned for being absent without leave (AWOL) from April 19, 2012 through May 8, 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.

After the September 27, 2012 evidentiary hearing, the parties discussed settlement.  On October 30, 2012, appellant requested a post-hearing settlement conference.  The post-hearing settlement conference was held telephonically on November 2, 2012.  Penny Cascio, Medical ERO, CDCR – CCHCS, Performance Management Unit, and appellant appeared telephonically.  No settlement was reached at the post-hearing settlement conference.

Appellant argues she had a satisfactory explanation for her absence, had obtained leave and is ready, able, and willing to discharge the duties of a Pharmacy Technician.

 

Respondent argues appellant failed to obtain leave 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 19, 2012 through May 8, 2012? 

 

2. Did appellant have a satisfactory explanation for failing to obtain leave from April 19, 2012 through May 8, 2012? 

 

3. Is appellant ready, able, and willing to return to work as a Pharmacy Technician?

 

4. Is appellant entitled to back pay?  

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

 

Appellant began her career with the State of California, Department of Corrections and Rehabilitation, on December 1, 2005.  Her most recent appointment was as a Pharmacy Technician at respondent’s Kern Valley State Prison Pharmacy.  She worked a Monday through Friday shift with office hours of 8:00 a.m. to 4:00 p.m.  Her supervisor for the last five years was a Pharmacist II. 

 

On February 10, 2011, respondent issued an all staff memorandum signed by the acting Warden.  The letter stated in relevant part:

“If an employee fails to report to his/her assigned post, the employee shall be temporarily considered ‘Absent without leave’ (AWOL).  The area supervisor and Watch Sergeant will begin “AWOL Contact Procedures” consisting of but not limited to the following attempts to locate the missing employee: . . .calling the employee’s home and cell numbers, calling the employee’s emergency contact numbers, contacting co-workers or known friends . . .”  Respondent did not attempt to contact appellant when she failed to report to work during the AWOL period.  There is no evidence to indicate this policy was not in effect in April 2012.

 

In December 2011, appellant was treated by a Workers’ Compensation doctor and placed on disability.  On January 9, 2012, appellant filed an Equal Employment Opportunity Sexual Harassment complaint with respondent alleging unwanted sexual comments and touching from her supervisor dating back to October 2010.  In January 2012, appellant’s Workers’ Compensation claim was denied and she returned to work on February 16, 2012. 

 

On March 1, 2012, respondent provided appellant a memo with basic information regarding its workplace expectations. The memo stated in relevant part:  “If you are sick and cannot report to work, you are to personally contact your supervisor prior to the beginning of your shift.  If you  are unable to reach your supervisor and must leave a message, you must leave a phone number where you can be reached within the next two hours.  Failure to follow these instructions may result in the time being considered AWOL.”

 

On March 9, 2012, appellant became upset when she heard a co-worker say “old shit.”  She believed the employee was referring to her.  After the incident, appellant told her supervisor she was going to the Return-to-Work Coordinator’s (RTWC) office.  The RTWC sent appellant to a Workers’ Compensation doctor.  March 9, 2012 was appellant’s last day at work. 

 

On March 13, 2012, respondent mailed appellant a Letter of Instruction (LOI). The LOI reminded appellant of respondent’s workplace expectations, specifically its call-in procedures.  On March 15, 2012, respondent mailed a “revised and re-issued” Employee Counseling Record to appellant.  The Employee Counseling Record was another attempt to remind appellant of her need to speak to her supervisor if she was not reporting to work.  Appellant’ supervisor had never disciplined her prior to March 2012.

 

On April 4, 2012, a medical doctor gave appellant an off-work order (OWO).  The OWO took appellant off work from April 4, 2012 through July 15, 2012.  Respondent placed appellant on State Disability Insurance (SDI) leave on April 4, 2012 through a Notice of Personnel Action (NOPA). (fn. 2)  The NOPA stated in relevant part, “when you receive medical clearance to return to work, you will be reinstated to your former class or a closely related class. . .”

 

On April 9, 2012, appellant verified with the RTWC her April 4, 2012 doctor’s note had been received.  She also spoke with her supervisor to advise she had provided the doctor’s notes to the RTWC.  Appellant’s supervisor acknowledges her April 9, 2012 phone call to report her absence.  On April 10, 2012, the RTWC sent appellant’s work status to the Chief Executive Officer (CEO), California Correctional Health Care Services.  The CEO is appellant’s supervisor's supervisor.

 

The RTWC’s work status memo to the CEO clearly stated, “[t]his memorandum is to inform you of PT [appellant’s] work status due to a NON-INDUSTRIAL medical condition.  Her work status is as follows:  Currently off work on March 20, 2012 through July 15, 2012.”  [Emphasis in original.]  On April 11, 2012, the Institutional Workers’ Compensation Analyst, RTWC sent appellant an options letter.  The options letter indicated “there is no medical information on file to indicate you are or will be unable to perform the essential function of your job” and “if there are options you would like to discuss, please check those options listed on the enclosed option checklist.”  The RTWC’s options letter indicated the appellant should respond no later than April 25, 2012. 

 

Appellant, who had reported her absence to her supervisor and the RTWC, did not respond to the RTWC’s options letter.  The options letter is to assist employees returning to work and, “basically just informing the employee – we’re here if you need us.”  On May 1, 2012, when appellant failed to respond to the RTWC’s options letter, respondent invoked the AWOL statute.  On May 8, 2012, respondent sent an “Amended Notice of Automatic resignation by absence without Leave” letter to appellant.

 

Appellant testified credibly she is willing and able to return to work and produced a doctor’s note indicating she is ready to return to work effective September 27, 2012.

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 19, 2012 through May 8, 2012.   

 

Section 19996.2(a) also provides:  “[r]einstatement may be granted only if the employee makes a satisfactory explanation to the department [CalHR] 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.”

 

 

Although Government Code section 19996.2 (a) provides, “[a]n employee so reinstated shall not be paid salary for the period of his or her absence or separation or for any portion thereof,” it conflicts with the provisions of appellant’s memorandum of understanding (MOU).  Specifically, Section 6.13 of Bargaining Unit 20’s MOU provides, “[i]n any hearing of an automatic resignation (AWOL) pursuant to Government Code section 19996.2, the hearing officer shall have the discretion to award back pay.  Therefore, appellant is entitled to back pay beginning September 27, 2012 when she was deemed able to return to work until her reinstatement as a Pharmacy Technician.