Final Decision Adopted December 21, 2011

By:  Ronald Yank, Director

 

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on November 10, 2011 in Sacramento, California.

 

Appellant was present and represented by Patricia Cano, Staff Attorney, Service Employees International Union (SEIU), Local 1000.

 

Nelson Chan, acting Chief Counsel, represented the Department of Fair Employment and Housing (DFEH), respondent.

On June 7, 2011, DFEH, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from May 31, 2011 through June 6, 2011.  Appellant filed a request for reinstatement appeal with DPA on June 20, 2011.

 

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.  DPA has jurisdiction over the appeal.

Appellant argues the hospitalization of her mother-in-law and her chronic back pain prevented her from going to work, she called in every day of her absence, and is now ready, able, and willing to return to work.

 

Respondent argues appellant called in during non-working hours to avoid speaking to a supervisor because she knew she had exhausted her leave credits and she is not ready to return to her position as an Office Technician (Typing). 

 

The issues to be determined are:

 

1. Did the employee have a satisfactory explanation for her absence from May 31, 2011 through June 6, 2011?

 

2. Did the employee have a satisfactory explanation for failing to obtain leave from May 31, 2011 through June 6, 2011?

 

3. Is the employee ready, able, and willing to return to her full time position as an Office Technician (Typing)?

The evidence established the following facts by a preponderance of the evidence:

 

Appellant began working for respondent on June 13, 2006 as an Office Technician (Typing).  The OT position is integral to the proper functioning of respondent’s district office to process the numerous housing and employment complaints received by DFEH.  Appellant’s mother-in-law had recently suffered a stroke and appellant suffers from chronic back pain.  She understood the leave procedure to be:  contact her supervisor and leave a message if she was not going to report to work.  Appellant did not report to work on May 31, 2011.

 

On May 31, 2011, appellant left a voice mail message for the District Administrator (DA), Sacramento, DFEH, Elk Grove, California office  at 1:45 a.m.   During her most recent absences from work, appellant left several voice-mail messages for the DA.  The DA was not appellant’s direct supervisor, but appellant could not remember her supervisor’s phone number.  Appellant’s May 31, 2011 voice mail message indicated her mother-in-law had had a stroke and she was not coming to work.  She did not state she was ill. 

 

On May 31, 2011, the District Manager (DM) called appellant and left a voice mail message which directed her to provide a note for her May 31, 2011 absence.   At 10:21 p.m. on May 31, 2011, appellant left another message on the DM’s voice mail.  This message stated that she is still caring for her mother-in-law and would not be at work the next day, June 1, 2011.  She did not say that she was ill. 

 

On June 1, 2011, the DM called appellant and left her a detailed voice mail message.  The message specifically told appellant her absences for May 31, 2011 and June 1, 2011 would not be approved because they were not covered under any protected leave provision.  On June 2, 2011 at 5:21 a.m., appellant left a voice-mail message for the DM.  The voice-mail message introduced at the hearing stated:

 

“I will not be in the office today - I will take a family leave day or furlough I don’t know what I have any more I won’t be in the office today all right thank you.”  Appellant did not mention she was ill.

 

On June 3, 2011, appellant called in at 2:23 a.m. but gave no reason for not reporting to work.  On Sunday June 5, 2011, appellant called at 11:40 p.m. to say she would not be at work on Monday, June 6, 2011 because she was ill.  Neither the DM nor any of respondent’s employees approved appellant’s absences.

 

On Monday, June 6, 2011, appellant went to her doctor in Elk Grove, California.  She received a doctor’s note indicating she had been unable to be at work since May 31, 2011.  Appellant has always relied on the doctor’s staff to fax her doctor’s notes to respondent and she did not bring the doctor’s note to respondent’s office.  Respondent’s office is 3 miles from thedoctor’s office. 

 

On June 6, 2011, respondent’s Human Resources department began the AWOL separation process.  On June 7, 2011, respondent mailed appellant its AWOL notice indicating appellant was considered voluntarily resigned for being AWOL for five consecutive days.  Appellant provided a doctor’s note she is ready, able, and willing to return to work effective November 7, 2011.  Appellant testified her back is not 100%, but has used Fentanyl patches for years which help dull the pain. 

 

A medical assistant for Sutter Medical Foundation is responsible for arranging appointments and faxing doctor’s notes to employers.  On June 6, 2011, the medical assistant does not recall faxing a doctor’s note to respondent’s workplace, but did acknowledge she prepared the fax cover sheet.  The medical assistant does not generally keep the fax confirmation sheet.   A second fax confirmation sheet sent to respondent’s fax number 478-XXXX, by another Sutter Medical Foundation employee on June 8, 2011 was introduced at the hearing.  No doctors testified.

The Administrative Adjudication Bill of Rights, adopted by DPA under California Code of Regulations, title 2, 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.) 

 

The court or jury may consider, in determining the credibility of a witness, any matter that has any tendency in reason to prove or disprove the truthfulness of

her testimony at the hearing, including, but not limited to . . . (b) The character of [her] testimony . . . (f) The existence or nonexistence of a bias, interest, or other

motive . . . .  (Evid. Code, § 780.)   

 

The ALJ makes the following credibility determination. 

 

Appellant’s claim she has never had to get permission in advance when she was sick because they always accepted her notes when she returned to work is not supported by any credible evidence.  Additionally, her statement she did not need respondent’s permission to be sick because she could be on approved dock if she had no leave credits available is simply incredible.  Appellant believes it is her choice to either provide a doctor’s note or be on approved dock and does not equate dock with being absent without leave (AWOL). 

 

Although appellant provided documentation for her mother-in-law’s medical condition, the documentation was for May 27, 2011 through May 29, 2011, not the AWOL period of May 31, 2011 through June 7, 2011.  Moreover, even though appellant was well aware respondent wanted doctor’s notes for her absences, and even though she was only 3 miles from respondent’s office, she did not bring the doctor’s note to respondent.  This behavior belies her testimony she was concerned about maintaining her employment with respondent.

 

At one point during her testimony, appellant claimed respondent’s policy allows her to simply fax her doctor’s notes to respondent without actually obtaining permission for her absence.  Later, she claims she is not sure of the policy, but has always faxed in doctor’s notes which gave her the time off, and has never had a problem with faxed doctor’s notes.  Appellant’s selective self-serving and contradictory testimony is not believable.

Referred to as the AWOL statute, Government Code section 19996.2(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 consecutive days as she was not at work from May 31, 2011 through June 6, 2011.   Government Code section 19996.2(a) also provides:  “[r]einstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of [her] absence and [her] failure to obtain leave therefor, and the department finds that [she[ is ready, able, and willing to resume the discharge of the duties of [her] position or, if not, that [she] has obtained the consent of [her] appointing power to a leave of absence to commence upon reinstatement.”

 

Despite appellant’s chronic back pain, she did not offer her back pain as an excuse for her absence until the night before her fifth day of absence.  In fact, she claimed it was her mother-in-law’s stroke which kept her from work, not chronic back pain.  It was only after respondent AWOL separated her from state service, appellant conveniently produced a doctor’s note excusing her from work.  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.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)   Appellant’s behavior, coupled with her lack of credibility, does not assist her in meeting her burden of proof. 

 

Appellant’s argument respondent failed to warn her she was facing an AWOL termination is not persuasive.  Respondent was under no obligation to “pre-warn” appellant of the impending AWOL separation.  “The AWOL statute . . . does not prescribe any procedures that the state must follow before it can terminate an employee.”  (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1114.)  Moreover, appellant admits she called respondent only during non-office hours and readily admits she had no available leave credits.  Her conduct demonstrates she knew she needed permission to be away from work.  

By her own admission, appellant has been away from work during most of 2010 and 2011, and was on full disability leave from October 2010 through April 2011.  Furthermore, when she was released to full duty on May 9, 2011, she was unable to report to work the very next day.  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.  To permit employees to remain away from work without leave would seriously impede the function of an agency.”

 

More troubling is appellant’s contention it is her decision, not respondent’s, to be away from work if she is ill.  She is not 100% sure her back pain will not keep her from work and is already counting on taking sick days which she believes do not have to be approved by respondent.  She even goes so far as to postulate, if told to come to work she would have to disobey the order to return to work if she was in pain.  Appellant claims her medical condition is different today, than on May 31, 2011, and insists the morphine patch she has used off and on for 10 years helps manage her pain, yet acknowledges she is in “pain all the time.”  

Appellant failed to prove by a preponderance of the evidence she had a satisfactory explanation for her absence.  She also failed to prove she had a satisfactory explanation for not obtaining leave from respondent.  Lastly, appellant failed to prove by a preponderance of the evidence she is ready, able, and willing to discharge the duties of an Office Technician (Typing).