CalHR Case Number 22-V-0081
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted
By: Eraina Ortega, Director
PROPOSED DECISION
This matter was heard telephonically before Karla Broussard-Boyd, Sr. Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. on February 14, 2023, in Sacramento, California. The appellant was present, and represented by a SEIU Local 1000 Attorney. An Attorney III, Department of Motor Vehicles (DMV) represented DMV, respondent.
I
JURISDICTION
On September 16, 2022, Department of Motor Vehicles (DMV), respondent, notified the appellant, she was being automatically resigned for being absent without leave (AWOL) from September 1, 2022 through September 16, 2022. The appellant filed a request for reinstatement appeal with CalHR on September 22, 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 September 22, 2022, a SEIU Local 1000 union representative, filed a request for reinstatement after automatic resignation appeal with the CalHR Statutory Appeals Unit (SAU) on behalf of the appellant. On September 29, 2022, the SAU issued a Notice of Time and Place of telephonic Pre-Hearing Conference for October 24, 2022. At the telephonic Pre-Hearing Conference, the telephonic Evidentiary Hearing was scheduled for February 14, 2023. This hearing followed.
III
ISSUES
The appellant argued she was harassed into being absent, called in each day of her absence, but was unable to obtain a doctor's note in accordance with respondent's request.
The respondent argued the appellant was advised she would be AWOL separated if she failed to provide a timely doctor's note after five consecutive working days of absence.
- Did the appellant have a satisfactory explanation for her absence for the period September 1, 2022 through September 16, 2022?
- Did the appellant have a satisfactory explanation for not obtaining leave for the period September 1, 2022 through September 16, 2022?
- 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 as a Motor Vehicle Representative, with the Department of Motor Vehicles, on June 27, 2005. She was originally supervised by a Manager I. In August 2022, a different Manager I became the appellant's supervisor. A Manager III was responsible for all Field Office operations.
On January 11, 2021, upon learning the appellant may require an accommodation, the Manager III advised her she could be eligible for Reasonable Accommodation and sent her Employee Assistance Program (EAP) information as well. On January 20, 2021, a Manager I advised the appellant her request for Family Medical Leave Act (FMLA) leave was denied because she had not worked the minimum 1,250 hours required in the previous year. On September 22, 2021, a different Manager I provided the appellant with another Reasonable Accommodation packet and FMLA and EAP information. The Manager I later advised the appellant she was not eligible for FMLA leave because she had not worked the required number of hours.
On January 31, 2022, the Manager I provided Reasonable Accommodation and EAP information to the appellant and denied another FMLA leave request because she had not worked the requisite number of hours required for eligibility. On March 21, 2022, the same Manager I, once again sent the appellant a memorandum denying her FMLA leave as she had not worked the 1,250 hours required for eligibility.
On June 21, 2022, the appellant was again provided written information on Reasonable Accommodation and EAP. The appellant acknowledged receipt of the information and wrote on the signature line:
“I have already provided my request and my diagnosis (unreadable) . . . ADHD is not curable – I have had it my entire life . . . (unreadable) and I have now provided a double certification. Current management is not accepting what has always been provided and I have been accepted (unreadable)."
There was no evidence the appellant ever provided medical substantiation to the respondent.
On August 23, 2022, the appellant again requested FMLA leave. She was told she needed to provide a completed Certification of Health Care Provider for Employee's Serious Health Condition (CalHR 754) to complete her FMLA leave request. The appellant never submitted a CalHR 754. On August 30, 2022, her new supervisor, Manager I, gave the appellant an Entitlements Memo, outlining the various programs available, including EAP, FMLA and Reasonable Accommodation, and counseled her on her excessive absences.
On August 31, 2022, the appellant seemed anxious when she asked Manager I for her payroll check so she could leave early. The Manager I told her she could not give her the check because she had not worked a full 8-hour day, and two (2) hours would be docked from her pay because she did not have permission to leave early. The Manager I testified the appellant became irate when she was told she would be considered AWOL if she left before quitting time. The appellant became so loud, she moved them to another location, gave her the check, but did not give her permission to leave.
A Manager II, a long-term employee of respondent, has worked at the Field Office for about 8 years. She oversees operations at the Field Office and was an indirect supervisor of the appellant. The Manager I testified the appellant complained about the Manager II frequently. The appellant testified she was hysterical on August 31, 2022, because it had “come to a head," referring to the Manager II's alleged harassment, but did not elaborate.
Before she left work on August 31, 2022, the appellant asked the Manager I to sign an Acknowledgement of Receipt of a Worker's Compensation Claim Form. She testified she was being harassed by the Manager II, and became physically ill with panic attacks, and subsequently filed a Worker's Compensation claim. There was no evidence substantiating the appellant's claim she was harassed by the Manager II, and the Workers' Compensation claim was later denied. The Manager II testified she had been approached about a mediation with the appellant, but it never occurred.
The appellant testified she went to Kaiser after leaving work early on August 31, 2022. There was no evidence she told the Manager I she was having trouble getting a doctor's note, but testified she was not seen because of strict COVID guidelines and a worker strike. Kaiser took her information and when she had heard nothing from them by September 6, 2022, she called them back. She said she tried other occupational health agencies but could not afford to go elsewhere.
Official Notice was taken of a September 15, 2022, SFGATE internet article indicating the California Department of Managed Health Care had launched an investigation into the scarcity of Kaiser's Behavioral Health Services from August 15, 2022 to September 3, 2022. (Bartlett, Amanda, 'It's derailed my life': Concerns grow for patients amid ongoing Bay Area Kaiser strike, SFGATE (September 15, 2022) https://www.sfgate.com/news/article/patients-face-kaiser-permanente-strike-17442169.php.)
The appellant testified she called in each morning to report her absence, except on September 1, 2022, which is corroborated by the respondent's Report of Absence worksheets. On September 6, 7, 8, and 9, 2022, the Manager I told the appellant she needed a doctor's note by the close of business substantiating her need for leave, or she would be considered AWOL. The appellant testified she was not told until Sunday, September 10, 2022, she needed a doctor's note by close of business. Respondent's offices are closed on Sunday.
On Monday, September 12, 2022, the Office Manager took the sick call from the appellant and told her she needed a doctor's note before close of business. The appellant testified she told respondent as early as September 13, 2022, she had a doctor's appointment on September 21, 2022. This testimony was not corroborated. The appellant called in to report her absences in accordance with respondent's call-in policy and was surprised she was AWOL-separated because the policy states to provide the doctor's note upon the return to work. The Office Manager testified it is not uncommon to request a doctor's note prior to an employee returning to work if they have attendance issues.
The Office Manager told the appellant on September 13, 14, 15 and 16, 2022, a doctor's note was required by close of business, but none was received. On September 16, 2022, the respondent advised the appellant it was invoking the AWOL statute for her absences from September 1, 2022. The appellant was seen by a Behavioral Health physician on September 21, 2022, who placed her off work for September 21, 2022 to September 30, 2022. The following day she was seen by her primary care physician who placed her off work retrospectively beginning September 13, 2022 to September 20, 2022.
The appellant did not provide any doctor's notes excusing her from work for September 1, 2, 6, 7, 8, 9, or 12, 2022. She did not provide any medical substantiation to respondent for reasonable accommodation or FMLA leave. The appellant testified she continues to take medication, can handle the stress better, and is ready to return to work. No doctors testified.
V
ANALYSIS
Generally referred to as 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 appellant was absent for more than five (5) consecutive working days as she did not report to work from September 1, 2022 through September 16, 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 his claim by a preponderance of the evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
The appellant did not have 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.) In this case, the appellant claims an illness, but is unable to provide doctor's notes substantiating her need for leave.
The appellant provided a doctor's note from her primary care physician excusing her from work for the period September 13, 2022 to September 20, 2022. However, she was absent without leave (AWOL) on September 1, 2, 6, 7, 8, 9, or 12, 2022, more than five (5) consecutive working days, with no doctor's note. The respondent properly invoked the AWOL statute when the appellant failed to report to work and provide medical substantiation for her five (5) consecutive working day absence. Therefore, the appellant failed to prove she had a satisfactory explanation for her absence.
The appellant did not have a satisfactory explanation for not obtaining 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, despite being told on numerous occasions a doctor's note was required to obtain leave, failed to provide a doctor's note to the respondent, and her absence was not approved.
The appellant's argument the respondent always accepted her doctor's notes when she returned to work is without merit. She was told each time she called in sick that medical substantiation was required by close of business. The respondent is well within its authority to request the appellant provide medical substantiation prior to her return to work because of her attendance issues. The appellant's proffered statement she told the respondent in June 2022, “I have already provided my request and my diagnosis (unreadable) ADHD is not curable – I have had it my entire life . . . (unreadable) and I have now provided a double certification, Current management is not accepting what has always been provided and I have been accepted (unreadable)," is not a true statement of fact.
The appellant never provided a medical certification for reasonable accommodation or FMLA leave and was not FMLA-eligible as she had not worked the required 1,250 hours.
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 is not blameless here, as she was aware respondent's managers and supervisors told her to provide a doctor's note by close of business each day she called in to report her absence. Her supervisor spoke with her directly during the AWOL period and explained because of her attendance issues, a doctor's note was needed before her return to work. The Office Manager also told the appellant on September 12, 13, 14, 15, 16, 2022, a doctor's note was required each day by close of business.
The appellant's testimony she told the respondent as early as September 13, 2022, she had a doctor's appointment on September 21, 2022, is hearsay. “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." (Gov. Code, § 11513(d).) Because the appellant's testimony does not supplement other evidence, it is inadmissible hearsay.
Although, it is not clear from the evidence whether the appellant requested a reasonable accommodation or FMLA leave, the respondent consistently over a 2-year period, evaluated her for FMLA leave and continually requested medical substantiation to determine the feasibility of 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 by not providing the required information from her healthcare provider. Therefore, the appellant cannot rely upon reasonable accommodation as a defense for her failure to obtain leave, and she does 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 he 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 his readiness, ability, and willingness to discharge the duties of a Motor Vehicle Representative.
VI
CONCLUSIONS OF LAW
The appellant failed to prove 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. 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 August 31, 2022, is denied.
