Final Non-Precedential Decision Adopted: December 29, 2009
By: Debbie Endsley, Director
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on October 28, 2009 in Sacramento, California.
Appellant was present and was represented by Natalia D. Asbill, Certified Law Student, Perkins & Associates.
Meghan McEvilly, Tax Counsel, represented the Franchise Tax Board, respondent.
On July 27, 2009, the Franchise Tax Board, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from July 14, 2009 through July 27, 2009. Appellant filed a request for reinstatement appeal with DPA on August 12, 2009.
California Government Code section 19996.2 authorizes DPA 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 DPA 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.
Appellant argues the death of her mother in 2006 lead to a deep depression which prevented her from working on a regular basis. With her depression and other health conditions controlled through medication and treatment, she is ready, able, and willing to work.
Respondent contends appellant does not have a valid reason for not obtaining leave from July 14, 2009 through July 27, 2009.
The issues to be determined are:
Did appellant have a valid reason for her absence from July 14, 2009 through July 27, 2009?
Did appellant have a valid reason for not obtaining leave from July 14, 2009 through July 27, 2009?
Is appellant ready, able, and willing to resume the discharge of her position as an Administrator I?
The evidence established the following facts by a preponderance of the evidence:
Appellant began working for respondent, Franchise Tax Board, on January 2, 1990. Her mother passed away in 2006 which sent appellant into a deep depression. Her health was further hampered by a broken ankle in December 2006 and she sought counseling for depression in the Spring of 2007. By March of 2009, she was still not thinking rationally and felt hopeless. Her doctor then prescribed Lexapro and Wellbutrin and the doctor now has appellant's depression currently under control.
On April 1, 2009, appellant transferred to a different Unit under direction of a different supervisor. Appellant was on an approved medical absence from April 1, 2009 through April 10, 2009.
On May 5, 2009, the new supervisor sent appellant an Absence Without Leave letter. It stated: "I did not hear from you at all on 4/30/09. I have received only voice mail messages from you from 5/1/09 to today, left well after or before my work hours. Therefore, your absences from 4/30/09 through 5/4/09 are being considered AWOL as previously stated."
The letter also indicated appellant must provide a doctor's note no later than May 11, 2009 to substantiate her absences from April 13, 2009 through May 4, 2009. Appellant sent the required doctor's note to the new supervisor on May 11, 2009.
Appellant left messages for the new supervisor on May 11, 12, and 13, 2009 stating she was too ill to come to work. On May 14, 2009, the new supervisor sent another Absence Without Leave letter to appellant once again indicating despite appellant's voice mail messages, her absences from May 11, 2009 through May 13, 2009 were without leave. Appellant left voice mail messages for the new supervisor on May 14, and 15, 2009 with varied reasons for her absences.
On May 18, 2009, appellant spoke with the new supervisor regarding her doctor's appointment and left a voice mail later in the day stating she would not be reporting to work. On May 19, 2009, appellant left a voice mail message for the new supervisor advising she was light headed and nauseous and would not be reporting to work. On May 20, 2009 appellant called the new supervisor to advise she broke her tooth and would not be in to work.
Appellant's first day at work in her new position was May 21, 2009. She continued to report to work without incident until June 2, 2009, when her pattern of absenteeism resurfaced. She did not report to work on June 2, 2009 due to a headache; on June 3, 2009 because of a sinus cold and headache; on June 4 and 5, she called but gave no reason for not reporting to work. The new supervisor called appellant on June 4, 2009 and told her she needed to bring a doctor's note for her absences.
On Monday, June 8, 2009, appellant called in to advise she was tired and would not be reporting to work. The new supervisor told her she needed a doctor's note to substantiate her absences. Appellant did not report to work on June 9, 2009 or June 10, 2009. On June 11, 2009, appellant requested, and was denied, time off for June 11 and 12, 2009. Appellant did not report to work on June 11, or 12, 2009.
On June 11, 2009, the new supervisor sent a letter to appellant detailing various options for appellant in light of her pattern of absenteeism. On June 15, 2009, appellant left a voice mail for her supervisor stating she was too stressed out to come to work. On June 16, 2009, appellant advised the new supervisor she would return to work on Friday, June 19, 2009 to discuss the options letter. On June 18, 2009, appellant called the new supervisor to report a death in the family and did not report to work. She requested another day of bereavement leave on June 19, 2009 and did not report to work. Appellant called in on Monday, June 22, 2009 and said she was taking another bereavement day.
Appellant reported to work on June 23, 2009, and worked without incident through July 13, 2009. On July 10, 2009, she had a detailed conversation with her supervisor. The new supervisor told appellant she would be out of the office the following week and instructed her to call a different person if she was unable to report to work. The new supervisor also reminded appellant of the requirements of requesting leave. Appellant understood the rule was to call and speak to her supervisor within one hour of the beginning of her shift if she needed to request leave.
Appellant did not report to work on July 14, 15, 16, 17, 20, 21, 22, 23, 24, or 27, 2009. She did not contact the different person in her supervisor's absence as instructed, nor did she request leave for July 14, 15, 16, 17, 20, 21, 22, 23, 24, or 27, 2009. On the morning of July 20, 2009, the new supervisor told appellant to provide a doctor's note for the days she was absent in July 2009. She renewed her request for the doctor's note on July 23, 2009 telling appellant the note had to be received no later than 9:30 a.m.
On Friday afternoon, July 24, 2009, appellant emailed her doctor's note to the new supervisor. The new supervisor, who had left at noon, did not receive the doctor's note until the following Monday. The note excused appellant from July 14, 2009 through July 20, 2009. On July 27, 2009, respondent invoked the AWOL statute for appellant's absences from July 14, 2009 through July 27, 2009.
Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with DPA. Section 19996.2(a) also provides: "Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] 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."
Additionally, in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court held that an employee terminated under the automatic resignation provision of Section 19996.2, has a right to a hearing to examine whether she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether she is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.
The Coleman court concluded the employee's unapproved absence is deemed an abandonment of employment or a constructive resignation. The state employer need not attempt to locate AWOL employees and prove the employee intended to abandon her position. All that is required is the AWOL notice give a date certain on which the AWOL statute will be invoked giving the employee adequate opportunity to request her Coleman hearing.
As set forth in Bettie Davis v. Department of Veterans' Affairs (1986) 792 F.2d 1111 ". . . an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency."
Appellant has the burden of proof and must prove by a preponderance of the evidence she had a valid reason for her absence, for not obtaining leave and she is ready, able, and willing to resume the discharge of her duties. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) The party who bears the burden of proof has the general burden of coming forward with a prima facie case. (Director v. Greenwich Collieries (1994) 512 U.S. 267.) If all evidence pertinent to a material fact were evenly balanced on each side, the fact finder must find for the party which does not have the burden of proof. (O'Connell v. C.U.I.A.B. (1983) 149 Cal.App.3d 54.)
Long-term illness of self or family is a valid reason for absence from the workplace when coupled with medical documentation. In the instant case, appellant's illness was validated by her treating physician who verified her illness as depression. The doctor, who testified telephonically appellant was clinically depressed, provided convincing evidence her patient suffered under a debilitating illness from April 2009 through July 2009.
However, a valid reason for absence is only one part of the absent without leave statutory requirement. An employee must obtain leave by following the employer's instructions, not simply devise a method to communicate their absence from work. In other words, in order to meet the required standard, an employee must obtain leave in accordance with the employer's policy. Appellant did not request leave during the AWOL period of July 14, 2009 through July 27, 2009 and did not obtain consent for a leave of absence.
More importantly, appellant understood what was required of her in order to request leave, but failed to follow her supervisor's simple instructions. Though appellant was ill, she was able to call a co-worker, but gave no reason for failing to call her supervisor. Appellant's new supervisor testified credibly she reminded appellant on July 10, 2009 of the required call-in procedures.
Appellant's argument she relied on respondent's past practices of accepting doctor's notes after the deadline is without merit. Appellant provided timely notes in May, 2009; provided insufficient evidence for the month of June 2009; and the doctor's note for her absence from July 21, through July 27, 2009 was not received until August 3, 2009, a week after the AWOL notice. Appellant called in sick on July 27, 2009 but made no attempt to provide a doctor's note in a timely manner.
Appellant's physician testified she is ready to resume the discharge of her duties and appellant is also anxious to get back to work.
Appellant proved by a preponderance of the evidence she had a valid reason for her absence. Appellant failed to prove by a preponderance of the evidence she had a valid reason for not obtaining leave. Because appellant failed to prove she had a valid reason for not obtaining leave, DPA need not determine the issue of whether she is ready, able, and willing to work.
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WHEREFORE IT IS DETERMINED, the appeal of appellant for reinstatement after automatic resignation from the position of Administrator I with the Franchise Tax Board effective August 7, 2009, is denied.