By:  Ronald Yank, Director

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on November 7, 2011 in Sacramento, California.

 

Appellant was present and represented by Jessica J. Hawthorne, Staff Legal Counsel, California Correctional Peace Officers Association (CCPOA).

Stephen Cerda, Employee Relations Officer/Labor Relations and Shellvina Brown, Employee Relations Officer/Labor Relations Advocate, represented the California Department of Corrections and Rehabilitation (CDCR), California Medical Facility (CMF), respondent.

On September 12, 2011, CDCR, CMF, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from August 21, 2011 through September 11, 2011.  Appellant filed a request for reinstatement appeal with DPA on September 22, 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 she had a valid reason for her absence, kept in constant contact with respondent and is now ready, able, and willing to return to her position as a Correctional Sergeant.

 

Respondent argues appellant failed to follow its procedure regarding leave.

 

The issues to be determined are:

 

1. Did appellant have a valid reason for her absence from August 21, 2011 through September 11, 2011?

 

2. Did appellant have a valid reason for not obtaining leave from August 21, 2011 through September 11, 2011?  

 

3. Is appellant ready, able, and willing to resume the discharge of duties as a Correctional Sergeant?

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

 

Appellant began her career with respondent in 1983 and has worked at respondent’s CMF, Vacaville, California, for approximately 7 years.  She worked the 2nd watch, 5:45 a.m. to 1:45 p.m., and had Friday and Saturday as her regularly scheduled days off (RDO). 

 

On April 4, 2011, respondent provided all of its custody staff a memorandum regarding timesheet training and instruction.  On April 6, 2011, appellant attended timesheet training during which the April 4, 2011 timesheet training directive was discussed.  It stated in relevant part,

 

“all sick leave absences are subject to supervisor’s approval and substantiation may require a doctor’s note.  If required, the employee must attach the doctor’s note to the CDC 998.A.”

 

The acting Associate Warden (acting AW) was the Custody Captain at the time of appellant’s absence.  He explained “everyone knows” an employee absent for more than 3 (three) days, must automatically provide a note.  He also explained “everyone knows” an absence of more than 5 (five) days, must be reported to the Return-to-Work Coordinator.  The timesheet training directive dated April 4, 2011 did not indicate either the 3 (three) or 5 (five) day rule articulated by the acting AW.

 

During the summer of 2011, appellant suffered a debilitating health crisis which required emergency hospitalization.  Her mother was also too ill to care for herself and her children had health issues as well.  Appellant was not at work from August 24, 2011 through September 11, 2011.  She understood respondent’s leave policy required her to call the Watch Office if she was not going to be at work. 

 

The Watch Office is the office responsible for ensuring all correctional officer posts are adequately filled on a daily basis.  The Watch Office has a Watch Officer, usually a Sergeant; a Watch Commander, and a Watch Captain.  Appellant understood she needed to speak to the officer in the Watch Office before her shift and to provide a doctor’s note if requested. 

 

Appellant was scheduled to work on August 21, 22, 23, 24, and 25, 2011; and on August 28, 29, 30, 31, and September 1, 4, 5, 6, 7, 8, 2011.   She called the Watch Office on each of these days except September 4, 6, 7, and 8, 2011, and was never asked to provide a doctor’s note on any of these occasions.  Appellant’s telephone bill indicates she called respondent at least 10 times on her day off of September 2, 2011.

 

During appellant’s personal hospital stay, the Employee Relations Officer (ERO)/Labor Relations, and another employee went to appellant’s home.  On the afternoon of September 9, 2011, appellant called the ERO who told her to speak with the acting Chief Deputy Warden (acting CDW).  The acting CDW told appellant to provide medical verification of her absences. 

 

One hour later, appellant faxed a medical excuse for the period September 6-11, 2011, with the notation, “additional hospital information to be provided upon return” handwritten on the note.  The following business day, Monday, September 12, 2011, appellant faxed additional medical verification.  Specifically, one for August 21 and 22, 2011 due to the illness of her son and one for August 24 and 25, 2011 because of her daughter’s oral surgery.  She also provided a portion of her medical record indicating she had been in the Emergency Department of St. Joseph’s Behavioral Health on August 28, 2011, September 3, 4, 6, 7, 8, 9, 10, and 11, 2011.

 

On September 12, 2011, respondent invoked the AWOL statute.  Appellant provided a doctor’s note indicating she may return to work with no restrictions as of November 1, 2011.  No doctors testified.

Generally 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 August 21, 2011 through September 11, 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.”  Appellant must prove all three issues by a preponderance of the evidence.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 

 

Appellant had several valid reasons for her absence, all relating to her health or the health of her family.  She suffered a debilitating health crisis which caused her to be hospitalized; and on two other occasions, was required, as a single mother, to stay home when her children were each too ill to attend school.  Additionally, appellant’s mother, with whom appellant resides, had recently been diagnosed with a serious illness.

 

Appellant called the Watch Office each day of her absence except September 4, 6, 7, and 8, 2011.  On these days, according to hospital records, she was hospitalized.   More importantly, respondent did not ask appellant for a doctor’s note until September 9, 2011, when the acting CDW spoke to her on the phone.  When asked, appellant immediately provided the requested documentation and advised she would provide additional information upon her return.

 

Appellant contacted the Watch Office even when she was not scheduled to work as she wanted to keep respondent apprised of her medical status.  On September 2, 2011, a full week before respondent requested any leave documentation, she called the Watch Office ten times between 11:22 a.m. and 7:35 p.m., ostensibly to advise her medical situation could soon result in a hospitalization. 

 

Respondent’s policy on obtaining leave is conflicting at best, as is the testimony of its acting AW.  The acting AW testified that “everyone knows” the policy, yet provided only an April 4, 2011 memo regarding how to properly fill out the “998” or time card.  No sick leave policy was proffered and the April 4, 2011 memo says nothing of the requirement to provide medical substantiation prior to returning to work.  Moreover, when appellant invoked the AWOL statute it represented appellant had not provided any documentation regarding her absences.  This was not a true statement.  Appellant had provided numerous documents to respondent upon request covering her time away from work.

 

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.)  Respondent’s conduct in terminating appellant’s employment is conduct without any rational support.  Additionally, while the phrase “arbitrary and capricious” has no precise meaning and is not defined in statute, it does encompass conduct not supported by a fair or substantial reason.  (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d. 398.) 

 

Appellant provided a back-to-work order from her treating physician stating she can return to work with no restrictions effective October 31, 2011. 

Appellant proved by a preponderance of the evidence she had a valid reason for her absence; she proved by a preponderance of the evidence she had a valid reason for not obtaining leave, and she proved she is ready, able, and willing to return to work.