Final Decision Adopted: March 20, 2015By: Richard Gillihan, Director
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 1:00 p.m. on February 11, 2015 in Napa, California.
Appellant, was present and represented by Steven B. Bassoff, Attorney, California Association of Psychiatric Technicians. Alice Lee, Senior Attorney, Department of State Hospitals (DSH), represented DSH – Napa, respondent.
On November 7, 2014, DSH – Napa, respondent, notified appellant, she was being automatically resigned for being absent without leave (AWOL) for the period November 3, 2014 through November 7, 2014. Appellant filed a request for reinstatement appeal with CalHR on November 19, 2014.
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 her duties as a Psychiatric Technician (Safety).
The Bargaining Unit 18 Memorandum of Understanding (BU 18 MOU) article 9.12 expands the CalHR jurisdiction to include whether: the appellant was absent for five consecutive days; the absence was without leave; and the AWOL statute was properly applied by the appointing power. The appeal complies with the procedural requirements of Government Code section 19996.2. CalHR has jurisdiction over the appeal.
The issues to be determined are:
1. Was the appellant absent for five consecutive work days?
2. Was the appellant absent without leave?
3. Did the appellant have a satisfactory explanation for her absence for the period November 3, 2014
through November 7, 2014?
4. Did the appellant have a satisfactory explanation for failing to obtain leave for the period
November 3, 2014 through November 7, 2014?
5. Is the appellant ready, able, and willing to return to work, or if not, does she have leave from her
appointing power to be absent?
6. Did the appointing power properly apply the AWOL statute, Government Code section 19996.2?
The evidence established the following facts by a preponderance of the evidence.
The appellant began her career with respondent's Napa State Hospital on August 1, 2000. Her most recent appointment was to a Psychiatric Technician (Safety) classification. For reasons, not adduced at the hearing, on July 18, 2014, the appellant was assigned to work in the Main Kitchen under the direction of NAME REDACTED, Supervising Cook II. She mopped floors and did other light labor.
NAME REDACTED works in respondent's Human Resources office. She routinely reviews rejections on probation, non-punitive actions and AWOL separations. She received a Criminal History Record Review from the Special Investigations Unit regarding the appellant. The report indicated the appellant was arrested on October 31, 2014 by the Elk Grove Police Department for giving false identification to a peace officer, for being under the influence of a controlled substance, for theft of personal property and for probation violation.
Prior to her arrest, the appellant knew she needed to come up with $980.00 or contact the court to avoid arrest. She testified that by the time she was arrested, it was a no-bail warrant. When asked about the no-bail warrant she states,
"I was not aware the warrant was out for my arrest - I had went to court - a warrant was supposed to have been re-lifted - I had cleared the warrant - went to court and what happened - that warrant was not uplifted and so in the process I uh was incarcerated until that was cleared."
The appellant was aware of the probation violation at the time of her arrest on October 31, 2014.
On November 3, 2014 at approximately 9:20 a.m., the appellant called the Supervising Cook II. He did not approve her leave. The appellant told her family to contact respondent and tell them she was ill. The appellant's mother and/or brother called respondent per the appellant's request but were told the appellant was required to call. The appellant did not call respondent at any other time during the AWOL period November 3, 2014 through November 7, 2014.
After the appellant had been absent for the period November 3 – 7, 2014, NAME REDACTED prepared an AWOL letter for the Human Resource Director's signature. On November 7, 2014, the respondent invoked the AWOL statute. On November 15, 2014, the appellant was released from jail. Appellant stated she is ready, able, and willing to return to work.
The Administrative Law Judge makes the following credibility determination. 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) [Her] demeanor while testifying and the manner in which [she] testifies . . . (h) A statement made by [her] that is inconsistent with any part of [her] testimony at hearing . . . (j) [Her] attitude toward the action in which [she] testifies or toward the giving of testimony. (Evid. Code, § 780.)
The appellant's attitude toward the proceeding appeared jocular. When asked questions, particularly under cross examination, she smiled before answering as if she found either the question or the entire proceeding amusing. When asked by the ALJ if the appellant found the proceeding funny, she insisted she did not think the hearing was funny. However, her nonchalant behavior throughout the hearing renders her testimony suspect.
The appellant's lack of veracity and inability to tell the truth under oath is troubling. First, she claims she went to court in early October 2014 to resolve her legal issues and shortly thereafter registered for work furlough. She provided no documentary evidence of this court appearance or work furlough registration. Conversely, respondent provided the on-line Sacramento County Superior Court Public Case Access Criminal Search record. The on-line record does not reflect an October 2014 court appearance by the appellant.
The appellant's testimony she believed she would be released the same day she was arrested because she registered for work furlough; or the warrant on which she was arrested should have been cleared; or she had no idea of the arrest warrant; or "the judge knew the warrant was supposed to be lifted," is neither supported by the evidence or believable. The appellant's claim she reported to work furlough in early October 2014 or made payments against the $980.00 due is also not believable. The appellant knew that until she paid $980.00, she would not be able to start work furlough stating, "this is a situation where it is just really bad timing. I had until that week," apparently referring to the first week of November 2014.
Appellant's self-serving statements she, "was workin' on it," referring to making partial work furlough payments toward the $980.00 fee and, "[I] was going to pay Monday after my arrest" are not credible. Neither is her statement she should not have had an arrest warrant because she was, "working on paying the money and was staying in contact with them. I was literally a few days from coming up with that money." The appellant provides no documentary evidence to support any of her claims.
Lastly, the appellant told her family to tell respondent she was ill, – a complete fabrication. The appellant knew she was incarcerated when she told her family to deceive respondent with her story of an illness. The appellant's testimony in this matter is therefore not credible.
Government Code section 19996.2(a), the AWOL statute, provides: "[r]einstatement may be granted only if the employee makes a satisfactory explanation to CalHR as to the cause of [her] absence and [her] failure to obtain leave therefor, and the department finds that [she] is ready, able, and willing to resume the discharge of the duties of [her] position." The BU 18 MOU article 9.12 expands the CalHR jurisdiction to include whether: appellant was absent for five consecutive days; the absence was without leave; and the AWOL statute was properly applied by the appointing power.
The appellant has the burden of proof in these matters and must prove each element by a preponderance of the evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) Additionally, if the AWOL statute was improperly applied by the appointing power, the ALJ may order the employee reinstated with back pay. From any such back pay award, there shall be deducted compensation that the employee earned, or reasonably could have earned, during any period of absence. There shall be no back pay for any period when the employee was not ready, able, and willing to return to work. (BU 18 MOU, art. 9.12 F.)
The appellant was absent for five consecutive work days.
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 the appellant was absent for five consecutive days as she was not at work for the period November 3, 2014 through November 7, 2014.
The appellant was absent without leave.
The automatic resignation provision of the AWOL statute links, "a civil service employee's right to continued employment to the state's legitimate expectation that the employee appear for work as scheduled." (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102.) The appellant was scheduled to work on November 3, 4, 5, 6 and 7, 2014. Although she spoke with her supervisor on the first day of her absence, November 3, 2014, she was not granted leave. The appellant did not contact respondent for the period November 4, 2014 through November 7, 2014 and that absence was without leave.
The appellant did not have a satisfactory explanation for her absence.
"The Legislature has determined persons who are terminated as a direct result of their criminal behavior and incarceration are not 'unemployed through no fault of their own' and are therefore ineligible for benefits." (Jefferson v. California Unemployment Ins. Appeals Bd. (1976) 59 Cal.App.3d 72.) Similarly, CalHR has rarely held incarceration a valid reason for an absence from work, unless the criminal behavior and subsequent incarceration are beyond the control of the appellant, or the arrest was without just cause. Here, the circumstances surrounding the appellant's arrest were not beyond appellant's control and were a direct result of her conduct.
Appellant's conduct prior to her arrest on October 31, 2014 is instructive. By her own admission she was on probation due to a previous criminal act. She knew she was to pay $980.00 for work furlough to satisfy a court order. She did not pay the $980.00. Moreover, the appellant's decision to disobey the court's order of work furlough was her singular choice, therefore the circumstances surrounding her arrest were under her control.
All of the appellant's actions, or failures to act, were sufficient enough to lead to probable cause for her arrest. Probable cause for arrest exists if there are circumstances sufficient to warrant a prudent person's belief that the suspect has committed an offense. (Beck v. State of Ohio (1964) 379 U.S. 89; Wood v. Emmerson (2007) 155 Cal.App.4th 1506.) Because the appellant failed to complete the registration process for work furlough, was under the influence of a controlled substance and gave a false identification to police officers – there was probable cause for her arrest.
It is the employee, and not the employer, who must suffer the consequences of their own misconduct as it is unfair to make the employer bear the economic costs of the employee's misconduct. (Yardville Supply Co. v. Board of Review, Dept. of Labor (1989) 114 N.J. 371.) Appellant's conduct leading to her arrest and subsequent incarceration is not a satisfactory explanation for her absence. Her absence from work for five consecutive days was the result of her own unlawful conduct, and therefore she alone should suffer the consequences.
The appellant did not have a satisfactory explanation for not obtaining leave.
The appellant must prove by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826 at p. 846.) Although the appellant did call on one occasion to advise her supervisor she was unable to report to work, her supervisor did not grant her leave.
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. As opined 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." The appellant did not obtain leave because she never requested leave and none was granted. This failure is fatal to her claim she had a satisfactory explanation for not obtaining leave.
The appellant is not ready, able, and willing to return to work and does not have leave from respondent.
The appellant testified her legal problems are behind her and she is ready, able, and willing to return to work. Although there was no evidence presented to the contrary, the appellant's testimony lacks veracity and is therefore not believable. Moreover, she does not have leave from respondent to be absent from the workplace.
The appointing power properly applied Government Code section 19996.2.
The BU 18 MOU article 9.12 expands the CalHR jurisdiction to include whether the AWOL statute was properly applied by the appointing power. The appellant was not improperly dismissed from state service under the AWOL statute, Government Code section 19996.2, because she was absent for five consecutive days and that absence was without leave of respondent.
Due process requires that the state give an employee pre-termination notice and an opportunity to respond before treating a permanent or tenured civil service employee's unexcused absence for five consecutive working days as an automatic resignation under statute. (Coleman, supra, 52 Cal.3d 1102 at p. 1117.) The respondent properly invoked the AWOL statute by providing the appellant with notice of its intent to invoke the AWOL statute and an opportunity to be heard.
Appellant was absent for more than five consecutive work days and that absence was without leave of the appointing power. 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. Appellant failed to prove by a preponderance of the evidence she is ready, able, and willing to discharge her duties as a Psychiatric Technician (Safety) or that she had leave from respondent. Appellant failed to prove by a preponderance of the evidence the AWOL statute, Government Code section 19996.2, was improperly applied.
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THEREFORE, IT IS DETERMINED, the appeal of appellant for reinstatement after automatic resignation from the position of Psychiatric Technician (Safety) with the Department of State Hospitals – Napa effective November 20, 2014 is denied.
Updated: October 20, 2016