Final Non-Precedential Decision Adopted: February 24, 2010
By: Debbie Endsley, Director
DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on December 10, 2009 in Riverside, California.
Appellant was present and represented by Mitchell I. Roth, Attorney at Law.
Veronica Shirlock, Employee Relations Officer, represented the Department of Corrections and Rehabilitation, California Rehabilitation Center, respondent.
I - JURISDICTION
On August 24, 2009, the California Department of Corrections and Rehabilitation, California Rehabilitation Center (CDCR, CRC) respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from July 29, 2009 through August 24, 2009. Appellant filed a request for reinstatement appeal with DPA on September 4, 2009.
California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation if he makes a satisfactory explanation as to the cause of his absence, his failure to obtain leave, and if DPA finds he is ready, able, and willing to resume the discharge of the duties of his position. The appeal complies with the procedural requirements of Government Code section 19996.2.
II - ISSUES
Appellant contends he had a valid reason for his absence, obtained leave and is ready, able, and willing to resume the discharge of his duties as a Correctional Officer.
Respondent argues appellant does not have a valid excuse for his absence and did not follow the correct procedure for obtaining leave.
The issues to be determined are:
Did appellant have a valid reason for his absence from July 29, 2009 through August 24, 2009?
Did appellant have a valid reason for not obtaining leave from July 29, 2009 through August 24, 2009?
Is appellant ready, able, and willing to resume the discharge of his position as a Correctional Officer?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began his career as a Correctional Officer on November 11, 1995. The duties of a Correctional Officer are to provide the public protection by enforcing state and federal laws and administrative regulations while supervising the conduct of inmates or parolees of a state correctional facility or camp. Appellant worked the 10:00 p.m. to 6:00 a.m. shift, known as the 1st watch. His regularly scheduled days off were Tuesday and Wednesday.
In 2008, appellant began having pains in his side and experienced dizziness. His illness led to a surgery on June 19, 2008, which required approximately four (4) months of recuperation time. In December 2008, he was still experiencing pre-surgery symptoms and was required to take additional time off through early 2009. He exhausted all of his leave credits and went on Non-Industrial Disability leave (NDI). Appellant's last day at work was January 30, 2009.
On February 6, 2009, the Return-to-Work Coordinator (RTWC) sent the following letter to appellant: "It is your responsibility as an employee of the Department of Corrections and Rehabilitation to provide a current OWO1 in a timely manner. The CRC understands that you must contact your treating physician so that you may receive this documentation; therefore you have been given until February 13, 2009 to forward the necessary documentation. You are hereby cautioned that absence without leave, whether voluntary or involuntary, for five consecutive workdays, is an automatic resignation from state service pursuant to the provisions of Government Code Section 19996.2."
On July 26, 2009, appellant was given an OWO stating he was cleared to return to work on July 28, 2009. The note was not signed by his treating physician. On Thursday, July 30, 2009, appellant called the Watch Sergeant to advise he would not be coming to work. The Watch Sergeant told appellant he was on long-term sick leave (LTS). When he asked for clarification of the term LTS, she told him he was expected to be off for an extended period of time. The Watch Sergeant told him the LTS determination comes through the RTWC, staff assignments or personnel.
The Watch Sergeant knew what the term LTS meant and as long as appellant was designated LTS, he had a valid reason not to report to work. The Watch Sergeant did not receive a return-to- work order for appellant in July 2009 or August 2009 and knew she should hire someone in appellant's place until he was cleared to return. She also told appellant he did not have to call in for the rest of the week because of his LTS status. As a Watch Sergeant, she was required to ensure sufficient officers to staff the next shift. During the first week of August, a different Watch Sergeant contacted appellant to determine if he would be reporting to work. Appellant told this Watch Sergeant he would not be reporting to work.
The original Watch Sergeant gives employees instruction regarding sick leave on a case-by-case basis. She explained she can ask for an OWO even on a one-day absence if the employee has a history of absenteeism. The Watch Sergeant did not ask appellant for an OWO, but awaited his clearance to return to work from either personnel, the RTWC or staff assignments. In the first two weeks of August 2009, the Watch Sergeant contacted appellant on Thursday nights to determine if he would be reporting to work. At some point, in mid-August 2009, the Watch Sergeant was told by a Captain to stop contacting appellant.
Respondent's RTWC worked extensively with appellant. She told him the requirements for medical documentation to substantiate absences. She received OWOs from appellant since February 2009; however, appellant was not consistent in providing the necessary OWO. She communicated with appellant by telephone on several occasions and sent him an options/warning letter in February 2009. The options/warning letter is sent to let employees know their OWO is not up-to-date.
On August 20, 2009, appellant believed he was still on LTS. The RTWC called appellant on August 20, 2009. During the telephone conversation, appellant told the RTWC he had OWOs for his absences but would not be seeing his treating physician until August 27, 2009. The RTWC knew respondent was preparing to separate appellant from state service under the AWOL statute but did not tell appellant and did not send the options/warning letter.
Respondent's RTWC does not remember what appellant said about his OWO or his August 27, 2009 doctor's appointment with his treating physician. She monitors over 1200 employees and believes her job is to make sure the employee is medically cleared to return to work.
On August 28, 2009, the RTWC received OWOs from appellant which excused him from work from August 1, 2009 through August 31, 2009. Appellant did not provide off work orders for August 6, 7, 13, 14, or 15. No doctors were called to testify. There was no evidence of a written sick leave policy. No one from staff assignments or personnel testified. Appellant's treating physician cleared him to return to work on August 31. 2009.
III - CREDIBILITY DETERMINATION
The Administrative Law Judge makes the following credibility determination. Respondent's RTWC did not testify credibly. She was inconsistent, defiant and her contradictory testimony rendered her testimony vague and unbelievable. When asked why she did not send an options/warning letter to appellant in August 2009 as she had in February 2009, she responded inconsistently. First, she said she had the authority to send the options/warning letter in February 2009, then stated: "it was out of her hands at [August 2009] that point."
The RTWC became defensive when asked why she did not send an options/warning letter to appellant in 2009. She stated she has over 1200 employees and returning employees to work is not her only job because she oversees other health related issues including Workers' Compensation.
Her testimony she documents phone conversations is also not credible. The August 20, 2009 conversation with appellant is memorialized as follows: "8/20/09 8/17 11:08 am called employee OWO expired received a phone call from the Captain @Patton he will talk to someone else and get back with me." The notations for the August 20, 2009 phone call are cryptic and despite her testimony she wrote the notes to recollect what she told appellant, the notes did not assist her in explaining what prompted her call to appellant. The RTWC admits she knew appellant was to be AWOLed but says it was not her responsibility to tell him during the August 20, 2009 conversation.
Her testimony is inconsistent when she attempts to explain the reason for the August 20, 2009 phone call. First, she says she called appellant because a Captain at Patton told her to do so. This contradicts her earlier testimony it was her procedure to call appellant if the OWO had expired. Her testimony becomes even more confusing when she states a return-to-work order from a doctor "does not guarantee the employee is going to return to work," yet her actions were based on appellant's return to work order of July 28, 2009.
IV - PRINCIPLES OF LAW
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 he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he is ready, able, and willing to return to work.
The Coleman court concluded five consecutive days of unauthorized absence is deemed an abandonment of employment or a constructive resignation. While the state employer need not attempt to locate AWOL employees and prove the employee intended to abandon his position; due process requires pre-severance written notice and opportunity to respond before treating permanent civil service employee's unexcused absence for five consecutive working days as an automatic resignation.
The phrase "arbitrary and capricious" has no precise meaning and is not defined in statute. However, conduct which lacks any reasonable basis or is without any rational support whatsoever may be considered to be arbitrary and capricious. (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57.) It also encompasses conduct not supported by a fair or substantial reason. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398.)
The Administrative Adjudication Bill of Rights, adopted by the Department of Personnel Administration under Title 2, California Code of Regulations section 599.898: "requires reviewing courts to give deference to an administrative body's determination of credibility to the extent the decision identifies the observed demeanor, manner, or attitude of the witness." (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575.) "[I]f the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination . . ." (Gov. Code 11425.50(b).)
Lastly, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence he had a valid excuse for his absence and failure to obtain leave and he is currently able to return to work. (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.)
V - ANALYSIS
The central focus of the AWOL statute is the premise an employee has resigned his state civil service position. Appellant testified credibly he had a valid reason for being absent as he had major surgery which required a long recovery period. He did not contemplate or intend to resign from state civil service. If fact, respondent granted appellant leave for his surgery and post-surgery absences until his leave credits were exhausted.
Moreover, appellant was in contact with at least two Watch Sergeants in July 2009 and August 2009. He told each of the Watch Sergeants he was still ill and would not be reporting to work. The Watch Sergeants each acknowledged appellant was on LTS status and advised appellant he was not expected back to work any time soon. Appellant relied on the representation of the Watch Sergeant, and the RTWC and believed he was on LTS and all he needed to return to work was clearance from his treating physician.
Appellant testified credibly he believed he was required to be seen by his treating physician as outlined in the February 6, 2009 letter from the RTWC. Her February 6, 2009 letter clearly stated "[respondent] understands that you must contact your treating physician." On August 20, 2009, appellant told the RTWC he was unable to obtain an appointment with his treating physician until August 27, 2009. He also told the RTWC he had doctor's notes from the local clinic taking him off work while he awaited his appointment with his treating physician. There was no evidence respondent requested appellant provide doctor's notes on August 20, 2009.
Respondent failed to provide evidence of its policy regarding long-term absences and subsequent return-to-work procedures for its employees. The only evidence of a policy was the testimony of the RTWC stating: "we are not talking about policy." The RTWC did not explain why she did not send an options/warning letter to appellant in August 2009, and believes appellant knew the return-to-work process testifying: "he knew what the process was" and "it was obvious what I needed from him."
The RTWC says she has the discretion to send the options/warning letter. She sent the letter in February 2009, but does not know why she did not send one in August 2009. She agrees the same set of circumstances existed in August 2009 as in February 2009 but states: "it's not a matter of doing something different; he is not my only employee."
Absent any clear policy on how appellant was to obtain leave, the actions of respondent are at best arbitrary. The RTWC failed to tell appellant to bring in the doctor's notes immediately, even though she states it was the purpose of her phone call of August 20, 2009. While the employer has no duty or responsibility to locate the employee under the AWOL statute, it is capricious to engage in subterfuge once they assume the duty of notifying employees of the need for OWOs.
Lastly, the contact of August 20, 2009 appears to have been done in bad faith because the RTWC knew appellant was to be AWOLed. The RTWC comments: "it was obvious what I needed from him!" and "we are not talking about policy" are disturbing in light of her responsibility to return employees to work.
Appellant provided sufficient medical documentation he is ready, able, and willing to discharge the duties of a Correctional Officer.
VI - CONCLUSIONS OF LAW
Appellant proved by a preponderance of the evidence he had a valid reason for his absence; a valid reason for not obtaining leave and he is ready, able, and willing to discharge the duties of his Correctional Officer position.
* * * * *
WHEREFORE IT IS DETERMINED, the appeal of appellant for reinstatement after automatic resignation from the position of Correctional Officer with the Department of Corrections and Rehabilitation effective July 29, 2009, is granted. No back pay is authorized. Appellant shall be reinstated to his former position within 2 weeks of the Order.
1. An OWO is an off-work order.
