Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted August 16, 2022
By: Eraina Ortega, Director
PROPOSED DECISION
This matter was heard telephonically before Karla Broussard-Boyd, Senior Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. on June 15, 2022, in Sacramento, California.
The appellant, was present and represented by Sherry McPhee, Attorney, SEIU Local 1000. Kate Rinne, Attorney III, Department of Motor Vehicles (DMV), represented DMV, respondent.
I
JURISDICTION
On February 3, 2022, Department of Motor Vehicles, respondent, notified the appellant, she was being automatically resigned for being absent without leave (AWOL) from September 13, 2021 through February 3, 2022. Appellant filed a request for reinstatement appeal with CalHR on February 10, 2022.
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.
II
PROCEDURAL HISTORY
On February 10, 2022, Kevin Peralta, Labor Relations Representative, SEIU Local 1000, filed a request for reinstatement after automatic resignation appeal on behalf of the appellant with the CalHR Statutory Appeals Unit (SAU). On February 22, 2022, the SAU issued a Notice of Time and Place of telephonic Pre-Hearing Conference for March 28, 2022. At the telephonic Pre-Hearing Conference, the telephonic Evidentiary Hearing was scheduled for June 15, 2022. This hearing followed.
III
ISSUES
The appellant argued she has been absent from work since December 2018 due to workplace injuries, and requests additional leave of respondent.
The respondent argued the appellant abandoned her position as a Motor Vehicle Representative when she failed to contact her supervisor or provide the necessary off work orders, and the AWOL separation should be sustained.
1. Did the appellant have a satisfactory explanation for her absence for the period September 13, 2021 through February 3, 2022?
2. Did the appellant have a satisfactory explanation for not obtaining leave for the period September 13, 2021 through February 3, 2022?
3. Is the appellant ready, able, and willing to return to work and discharge the duties of a Motor Vehicle Representative?
IV
FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence. The appellant began her career with the State of California on March 8, 2001, as a Motor Vehicle Representative. In 2014, she was assigned to respondent’s Riverside East Field Office, and supervised by a Manager I. The appellant suffered several workplace injuries beginning in 2006. She went on to file workplace injury claims in 2007, 2010, 2011, 2015, and 2018, for injuries to her ankle, back, and knees.
On February 1, 2017, her Manager I provided the appellant with a memorandum regarding attendance expectations. The 4-page memorandum was given to the appellant to reiterate respondent’s call-in procedure. Specifically, the appellant was to call and speak to a supervisor no later than 30 minutes after her start time, and that medical substantiation was required in the event she would not be reporting to work. The memorandum also warned the appellant of an AWOL separation if she failed to comply with respondent’s expectations.
The Manager I testified the appellant’s last day in the workplace was December 7, 2018. On April 13, 2021, and again on May 21, 2021, she sent the appellant return to work letters in anticipation of her current Off Work Order (OWO) expiring. The letters advised the appellant to report to work at the expiration of her OWO, or in the alternative, provide medical substantiation for her absences. On August 2, 2021, another Manager I sent a return to work letter to the appellant. Each return to work letter advised the appellant she was not eligible for Family Medical Leave Act (FMLA) leave, and warned of an AWOL separation after an absence of five (5) consecutive working days.
The DMV Administrative Manager, a 26-year employee of respondent, managed the Riverside East Field Office from 2011-2022. On August 23, 2021, the appellant called her to advise she had a new home address in Hemet, California. On September 8, 2021, the DMV Administrative Manager sent the appellant a return to work letter indicating her most recent OWO expired on September 2, 2021. The letter welcomed the appellant back to work, and offered Reasonable Accommodation should she believe an accommodation was needed to perform the essential functions of her position. She was told, “[i]f you feel that a Reasonable Accommodation is required for you to effectively do your job, you may complete the attached Request for Reasonable Accommodation.” The appellant never completed a Reasonable Accommodation request form.
The appellant first testified she never received the September 8, 2021 return to work letter, then later admitted she did receive the letter. The Manager I September 8, 2021, return to work letter included an AWOL warning stating: “[A]fter five (5) consecutive working days of unapproved absence, the department may invoke the Absence Without Leave (AWOL) statute provided in Government Code Section 19996.2, under which you will be considered to have automatically resigned your position with the Department of Motor Vehicles (DMV).”
The appellant testified she was homeless for a time, and relied on others to drive her to respondent’s Riverside East Field Office after hours. She would then leave her most recent OWO in respondent’s “drop box,” and claims she placed four (4) OWOs for the period September 2, 2021 through January 26, 2022 in the “drop box.” Each OWO indicated the appellant was TTD, or temporarily totally disabled for the next 45 days. The DMV Administrative Manager testified the “drop box” is for customers to drop items off after work hours, not for employee’s doctor’s notes.
The appellant’s direct supervisor, testified she never told the appellant to put her doctor’s notes or OWOs in the “drop box,” and never received any OWOs from the appellant for the period September 2, 2021 to February 3, 2022. No doctors testified.
V
ANALYSIS
The AWOL statute, Government Code section 19996.2, subdivision (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 more than five consecutive working days as she was not at work from September 13, 2021 through February 3, 2022.
Government Code section 19996.2, subdivision (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.”
The appellant has the burden of proof in these matters and must prove each element of her claim by a preponderance of the evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
The appellant had a satisfactory explanation for her absence.
CalHR has long held that an illness of an employee or an employee family member is a satisfactory explanation for an absence from work. An agency’s consistent maintenance of a statutory interpretation under scrutiny, especially if it is long-standing, is a circumstance which weighs in favor of judicial deference. (Yamaha Corp. of America v. State Bd. of Equalization (1999) 73 Cal.App.4th 338, 339.) The appellant, with workplace injuries that date back to 2006, provided OWOs at the hearing for the AWOL period of September 14, 2021 through February 3, 2022.
Each OWO she provided at the hearing, indicated she was TTD or temporarily totally disabled, from September 13, 2021 through February 3, 2022. Therefore, the appellant had a satisfactory explanation for her absence.
The 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 concluded an employee’s unapproved absence is deemed an abandonment of employment or a constructive resignation. The appellant never called her supervisor as directed in respondent’s call-in procedure memorandum, nor did she request leave. The respondent advised her as early as 2017, and repeatedly from 2018 through 2021, that an AWOL separation could result if she failed to report to work as ordered for five (5) consecutive working days.
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 failed to follow her supervisor’s instructions which required her to call her supervisor no later than 30 minutes after her start time.
Moreover, the appellant’s argument she dropped her OWOs in respondent’s drop box after hours, is not persuasive. Her supervisor testified credibly that she never told the appellant to place her doctor’s notes or OWOs in the drop box, and did not receive an OWO during the AWOL period. Furthermore, the process for obtaining leave was made clear to the appellant each time the respondent sent her a return to work letter. The return to work letters told her exactly what was required of her to obtain leave for her absences. For reasons not adduced at the hearing, the appellant did not comply with respondent’s call-in procedure.
Each time the respondent provided the appellant a return to work letter, it also provided a Request for Reasonable Accommodation form advising her what was required to request a reasonable accommodation. “If an employer engages in an interactive process with the employee, in good faith, for the purpose of discussing alternative reasonable accommodations, but the employee fails to cooperate in the process, then the employer cannot be held liable under the Americans with Disabilities Act.” (42 U.S.C.A. § 12101 et seq.)
The evidence shows it was the appellant, not the respondent, who failed to participate in the reasonable accommodation process. Despite receiving a Reasonable Accommodation form each time she was sent a return to work letter, the appellant never cooperated or completed the form, and she cannot rely upon reasonable accommodation as a defense for her failure to obtain leave. Lastly, there was no testimony indicating the appellant was unable to speak or make a phone call, which was necessary to request leave. Therefore, the appellant did not have a satisfactory explanation for not obtaining leave.
Appellant’s readiness, ability, and willingness to return to work are 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 she is asserting.” (Evid. Code, § 500.) Because the appellant
failed to meet her burden of proof on each element of her request for reinstatement appeal, no purpose would be served in determining her readiness, ability, and willingness to discharge the duties of a Motor Vehicle Representative.
VI
CONCLUSIONS OF LAW
The appellant proved by a preponderance of the evidence she had a satisfactory explanation for her absence. The appellant failed to prove by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave. The appellant’s readiness, ability, and willingness to return to work are no longer at issue.
* * * * *
THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation from the position of Motor Vehicle Representative with the Department of Motor Vehicles effective February 17, 2022, is denied.
