DPA Case Number 06-R-0009 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 11, 2006

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on March 29, 2006, at Sacramento, California.

Appellant was present and was represented by Ann Lyles, Consultant, California Association of Psychiatric Technicians (CAPT).

Kenneth D. Celli, Staff Counsel, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Statute:

Government Code section 19996.2

(a) Absence 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. A permanent or probationary employee may within 90 days of the effective date of such separation, file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing. Reinstatement may be granted only if the employee makes a satisfactory explanation to the department 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. An employee so reinstated shall not be paid salary for the period of his or her absence or separation or for any portion thereof.

(b) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Section 3517.5, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

Memorandum of Understanding Provisions:

Article 9 - Working Conditions

. . .

9.12 Request for Reinstatement After AWOL Separation

A. An employee may be separated pursuant to Government Code Section 19996.2 (the AWOL statute) if he/she is absent for five consecutive work days without leave to be absent. An employee separated pursuant to the AWOL statute shall be afforded an opportunity for a Coleman hearing by his/her appointing power within five (5) working days after notice of the separation. An employee shall be noticed of his/her AWOL separation pursuant to Government Code Section 18575.

B. Appeals from an AWOL separation shall be appealed to the Department of Personnel Administration within 30 days from the effective date of the AWOL termination.

C. If a request for reinstatement goes to hearing, the DPA appointed Administrative Law Judge (ALJ) shall decide the following: (1) whether the employee was absent for five consecutive workdays; (2) whether that absence was without leave, i.e. without the permission of the employee’s appointing power to be absent; (3) whether the employee has a satisfactory explanation for his/her absence; (4) whether the employee has a satisfactory explanation for failing to obtain leave; (5) whether the employee is ready, willing and able to return to work, and/or, if not, whether the employee has leave from his/her appointing power to be absent; and (6) whether the appointing power properly applied the AWOL statute.

D. The ALJ may order reinstatement only if the employee establishes satisfactory reasons for the absence and the failure to obtain leave and if the employee is ready, willing and able to return to work or has leave to be absent.

E. If the AWOL statute was applied properly by the appointing power and the employee is reinstated, the employee shall receive no back pay for the period of his/her absence.

F. If the AWOL statute was applied properly by the appointing power, the ALJ may order the employee reinstated and may order 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, willing and able to return to work.

On January 4, 2006, respondent notified the appellant by mail he was automatically resigned effective January 3, 2005. CAPT filed a request (appeal) for reinstatement after automatic resignation on January 18, 2006.

As a Psychiatric Technician (Safety) and a member of State Collective Bargaining Unit 18, appellant’s appeal for reinstatement after automatic resignation (AWOL) pursuant to Government Code section 19996.2 (AWOL statute) is governed by Section 9.12 of the 2005 through 2006 Memorandum of Understanding (MOU) between the State of California and California Association of Psychiatric Technicians (CAPT). Section 9.12 (B) gives DPA jurisdiction to hear and decide an AWOL appeal if it is filed within 30 days from the effective date of the AWOL. This case is properly before DPA for adjudication because the appeal was filed within the requisite 30 days.

Appellant argued he should be reinstated because he was not absent on five consecutive workdays without leave. He also argued the automatic resignation statute was improperly applied because the notice of automatic resignation was defective.

A. Absence Reporting Requirements

Appellant was given a written “Attendance Plan” and a “Letter of Instruction-Willful Disobedience” on August 1, 2005. The Letter of Instruction-Willful Disobedience was based on appellant’s non-compliance with previous instructions regarding reporting of his absences. The August 1, 2005 Attendance Plan specified the procedure the appellant must follow each time he was going to be absent. He was to call his assigned supervisor, the Senior Psychologist, each day at least an hour prior to the start of his shift and he was to speak to the supervisor personally. If appellant left a message, he was to call back and speak to his supervisor later that day. If appellant’s supervisor was not at work, the appellant was to call his second-level supervisor, the Health Care Manager, and speak to him personally. If appellant was absent on weekends or other “off hours,” appellant was to call the Registered Nurse in charge. If appellant was absent because of illness, he had to bring in a doctor’s note when he returned to work. Appellant was warned he would be disciplined if he did not follow these procedures.

On or about November 7, 2005, the August 1, 2005 reporting requirements were reaffirmed in writing by a new Senior Psychologist (Acting) who assumed appellant’s supervision.

B. Absences in December 2005 – January 2006

Appellant’s regular work schedule was from 6:00 a.m. to 2:00 p.m. on Monday, Tuesday, Friday, Saturday, and Sunday. His regular days off were Wednesday and Thursday. Appellant worked on Saturday, December 24, 2005 and Sunday, December 25, 2005, Christmas day.

Appellant was scheduled to work on Monday, December 26, 2005. This day was a State holiday. Appellant did not work on this day. He testified he believed he would get this day off because he had worked on Christmas Eve and on Christmas Day. It was the past practice that psychiatric technicians alternated days off when there were multiple holidays. Although a work schedule was normally posted, there was no schedule posted for this period. Appellant testified he called the Supervising Registered Nurse at 9: 00 a.m. on December 26 to verify there was a psychiatric technician on duty. The Supervising Registered Nurse was not called to testify. Medication was not distributed on December 26 because there was no psychiatric technician on duty.

Appellant was scheduled to work on Tuesday, December 27, 2005. He did not report to work. He did not call the Senior Psychologist or the Health Care Manager to report his absence. Instead, he called the CMO and spoke with the CMO’s secretary. According to the appellant, he asked to meet with the CMO regarding “liability issues.” The secretary informed the appellant the CMO was unavailable but she would ask the CMO to return the call. The CMO never returned appellant’s call.

On December 27, the same day appellant called the CMO, respondent’s Health Care Manager (Acting) sent appellant a letter informing him he was absent without leave on December 26. The letter warned appellant that absence without leave for five consecutive days may result in automatic resignation. Respondent ordered appellant to contact the Employee Relations Officer (ERO) or the Health Care Manager within five work days. It warned him that failure to make this contact would result in his automatic resignation.

Appellant was not scheduled to work on Wednesday, December 28 or Thursday, December 29, 2005 because these were his regular days off. Appellant received the Health Care Manager’s December 27 letter on December 29.

Appellant was scheduled to work on Friday, December 30, 2005. He did not report to work. He did not call his immediate supervisor or the Health Care Manager to report his absence. Appellant called the ERO on this day in response to the December 27 letter. Appellant requested a meeting with the Warden on that day. The ERO informed the appellant the Warden would not be back at the institution until January 3, 2006. The ERO also told the appellant he would schedule the requested meeting and call him back. The ERO informed the appellant he was currently absent without leave and he could be automatically resigned if he did not report to work. The appellant told the ERO he was being harassed. The ERO asked appellant if he was sick. The ERO told the appellant if he was sick, he was to bring a doctor’s note to the meeting with the Warden to verify his absence. The appellant said he could get a doctor’s note for his absence. Appellant told the ERO he would not be coming back to work until he met with the Warden and the CMO. The ERO told the appellant if he didn’t bring a doctor’s note verifying his absence, he would be absent without leave.

The ERO told the appellant he would notify appellant’s supervisor he would not be coming to work. The ERO contacted appellant’s immediate supervisor. The ERO told appellant’s supervisor the appellant would be providing a doctor’s note for his absence and therefore the appellant would not be calling the supervisor each day to report his absence.

Appellant was scheduled to work on Saturday, December 31, 2005; Sunday, January 1, 2006; and, Monday, January 2, 2006. He did not report to work on these days. He did not personally contact or leave a message for anyone on any of these three days to report his absence.

Appellant was scheduled to work on Tuesday, January 3, 2006. He did not call anyone to report his absence. The ERO called the appellant on this day and told him the meeting with the Warden was scheduled at 2:00 p.m. The appellant appeared for the meeting at approximately 1:30 p.m. The ERO asked the appellant for the doctor’s note excusing his absence. According to the ERO, the appellant told him he didn’t get a doctor’s note and he was going to wait to see what the Warden “was going to do for him.” The appellant did not dispute this testimony.

The Warden, Chief Deputy Warden, Health Care Manager (Acting), Equal Employment Officer (EEO), ERO, and appellant attended the meeting. They discussed appellant’s complaints regarding his harassment and his allegations of unethical behavior. None of appellant’s allegations of misconduct or harassment involved an immediate threat to his health and safety. At the end of the meeting, the appellant was instructed not to return to work until he was notified to do so. The appellant said he was not going to return to work until he could be assured by the Warden he would not be harassed and the unethical conduct would stop. The ERO and Chief Deputy Warden immediately investigated appellant’s claims. They were unable to substantiate any of his allegations.

On or about January 4, 2006, the Warden ordered the appellant be automatically resigned because he failed to produce a doctor’s note substantiating his need to be absent.

A. ABSENCE FOR FIVE CONSECUTIVE WORK DAYS

Appellant was scheduled to work on December 26, 27, 30, 31 and January 1 and 2. He did not report to work on any of these days. He was absent for five consecutive work days.

B. ABSENCE WITHOUT LEAVE

Appellant did not have leave to be absent for December 26, 27, 30, 31 and January 1 and 2. He did not receive permission to be absent on any of these days from his immediate supervisor, the Health Care Manager (Acting), the CMO, the ERO, or anyone else.

C. REASON FOR ABSENCE

Appellant did not report to work on December 26, 2005 because he worked on Saturday, December 24 and on Sunday, December 25 which was Christmas Day. Monday, December 26 was a State holiday. Appellant is normally scheduled to work on Mondays. Appellant did not report to work because he believed he had this holiday off.

Appellant was absent on December 27, 30, 31, 2005 and January 1 and 2, 2006 because he voluntarily chose not to come to work. He believed he was being harassed and he disagreed with some medical procedures he allegedly observed. He testified he believed the conduct he allegedly observed created legal and liability issues for him and endangered his medical license. Appellant told the ERO he was not coming to work until he met with the Warden and the CMO. The Warden was unavailable to meet with the appellant until January 3, 2006.

D. REASON FOR FAILURE TO OBTAIN LEAVE

Appellant did not obtain leave because he did not comply with the requirements for obtaining leave that were provided to him on or about August 1, 2005 and November 5, 2005. He also did not comply with the requirement reiterated to him on December 30, 2005 by the ERO to bring a medical note to substantiate his absence if he was ill.

Appellant argued he didn’t need to follow the procedure to obtain leave for his absence on December 26 because he was not scheduled to work that day. There was no reliable evidence to substantiate this argument. There was no evidence appellant asked for this holiday off work. There was no evidence anyone ever told appellant he was not scheduled to work. There was no evidence appellant did anything prior to taking the day off to confirm he did not have to work. He unreasonably relied on a past practice which could have allowed any of three psychiatric technicians the day off depending on how many previous holidays they had worked.

Furthermore, appellant’s testimony that he called the Supervising Registered Nurse on December 26 to see if the psychiatric technician was on duty is not credible. If appellant had been given an approved day off, it is highly unlikely he would have called the institution to see if another psychiatric technician was on duty. If he would have called the institution to make sure a psychiatric technician was on duty, he would have learned there was no one scheduled to cover his regular shift and he had been expected to work on his regularly scheduled work day. Appellant failed to provide a satisfactory explanation for not obtaining leave on December 26, 2005.

Appellant failed to provide a satisfactory explanation for not obtaining leave on December 27, 2005. His call to the CMO’s office on this day did not constitute compliance with the required procedures to obtain leave. He called the CMO to request a meeting, not to request leave. Appellant did not provide any reason for not following the required procedure for obtaining leave on this day.

Appellant also failed to provide a satisfactory explanation for his absence from December 30, 2005 through January 3, 2006. He believed his absences for these days were excused based on his December 30, 2005 conversation with the ERO. The evidence shows the ERO did tell appellant he would inform his supervisors that the appellant would not be at work. This removed appellant’s responsibility to call his supervisor each day he did not report to work from December 30, 2005 through January 3, 2006. However, the ERO made it clear to the appellant during the December 30 conversation that approval of his absences was based on appellant’s production of a medical note indicating appellant was medically unable to work during the period at issue.

Appellant failed to produce the required medical note because he was not sick on the days he was absent. Appellant continued to voluntarily absent himself from work even though he was not ill and there was no danger to his health or safety at work. There was no evidence appellant made any effort to report his alleged liability and ethical concerns or to take any other corrective actions prior to refusing to come to work. There was no evidence appellant ever asked for leave. Appellant did not have a valid reason for not obtaining leave for December 30, 2005 through January 2, 2006.

E. READY, WILLING AND ABLE TO RETURN TO WORK

Appellant testified he was ready, willing, and able to return to work. He testified he informed various people that he was anxious and ready to return to work. He testified he would have returned to work after the January 30 meeting with the Warden but the Warden told him not to come to work until he was notified he to do so.

Respondent did not dispute appellant was sent home and ordered not to return to work until he was instructed to do so. However, respondent challenged appellant’s assertion he was ready to return to work. Respondent presented witnesses that heard appellant declare he would not return to work until he had a meeting with the warden and the CMO and/or until he was assured by the Warden the harassment would stop.

Appellant had his requested meeting with the warden. His concerns were heard and investigated. None of appellant’s allegations were substantiated. However, appellant did not get an opportunity to return to work because after investigation of his allegations,. He was notified he was automatically resigned.

Appellant apparently felt the meeting and the results of the investigation were sufficient to satisfy his concerns. He testified without challenge, he was ready, able, and willing to return to work.

F. APPLICATION OF GOVERNMENT CODE SECTION 19996.2

Appellant argued Government Code section 19996.2 was improperly applied because the notice of automatic resignation did not state the days appellant was charged with being absent without leave.

The January 4, 2006 notice of automatic resignation stated in relevant part: “As of December 26, 2005, you have been absent from your position as Psychiatric Technician at Sierra Conservation Center without approved leave. On January 2, 2006, you were in violation of California Government Code Section 19996.2, which states an employee who is absent, either voluntary or involuntary, without approved leave from the proper appointing power for five (5) consecutive working days may be considered to have automatically resigned from state service as of the last date on which the employee worked. You are hereby notified that effective January 3, 2005, the California Department of Corrections, Sierra Conservation Center invoked the Absence Without Leave statute under California Government Coded section 19996.2, which constitutes your automatic resignation from state service. . . . “

Although the notice did not specifically state each and every work day the appellant was considered absent without leave, it notified appellant that he was absent without leave on December 26, 2005 and that he was in violation of Government Code section 19996.2 as of January 2, 2006. In order to violate the statute, the employee has to be absent without leave five consecutive workdays. Therefore, the notice adequately advised appellant he was absent without leave for five consecutive work days between December 26, 2005 and January 2, 2006.

In addition, the appellant failed to demonstrate any prejudice as a result of the notice and was able to proceed at hearing addressing each of the individual days between December 26, 2005 and January 2, 2006 that were the basis for appellant’s automatic resignation. The respondent properly invoked the AWOL statute.

 

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The MOU allows the ALJ to reinstatement the appellant only if the employee establishes satisfactory reasons for his absence and the failure to obtain leave and if the employee is ready, wiling and able to return to work or has leave to be absent. (Section 9.12 (D).)

The appellant failed to prove he had satisfactory reasons for his absence and his failure to obtain leave. He was not ill and he did not prove he was unable to report to work for any other reason. His health and safety were not in jeopardy. Appellant’s voluntary decision to remain off work until he could have his complaints addressed by the Warden is an inadequate basis on which to find appellant had a reasonable basis not to report to work.

Appellant also failed to provide a satisfactory reason why he did not obtain leave. He failed to explain why he consistently did not follow the instructions he was ordered to follow on multiple occasions to obtain leave. He failed to prove he requested leave at any time.

Appellant testified he is now ready, able and willing to return to work. His concerns were heard by the Warden and they were investigated. Although the appellant may pursue his complaints in the future and may continue to inappropriately report his absences, appellant’s testimony that he was ready to return to work is credible. However, since he failed to prove he had a valid reason for absence and failure to obtain leave, this finding is of no consequence.

The MOU also allows the ALJ discretion to reinstate the employee and to order back pay if the AWOL statute was inappropriately applied by the appointing power. (Section 9.12 (F).) The respondent appropriately applied the AWOL statute in this case by notifying appellant the period of absence without leave began on December 26, 2005 and ended on January 2, 2006 when he met the statutory requirement of being absent without leave for the consecutive five work days.

 

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that the appeal for reinstatement after automatic resignation effective January 3, 2006, is denied. No back pay is awarded.