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DPA Case Number 11-P-0155 - Request for Reinstatement after Automatic Resignation (AWOL)

DPA Case No.:  11-P-0155 - Request for Reinstatement after Automatic Resignation (AWOL)

Final Decision Adopted January 17, 2012
By:  Ronald Yank, Director
 

PROPOSED DECISION

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on December 13, 2011 in Sacramento, California.
 
Appellant was present and represented by Melinda Williams, Staff Attorney, Service Employees International Union, Local 1000 (SEIU).
 
Nalda L. Keller, Labor Relations Counsel, DPA, represented the Department of Consumer Affairs (DCA), Contractors State License Board (CSLB), respondent.

I - JURISDICTION

On October 11, 2011, DCA, CSLB, respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from September 29, 2011 through October 11, 2011.  Appellant filed a request for reinstatement appeal with DPA on October 26, 2011.
 
California Government Code section 19996.2 authorizes DPA, after timely appeal, 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.

II - ISSUES

Appellant argues she had a valid reason for her absence and for not obtaining leave and she is ready, able, and willing to return to work.
 
Respondent argues appellant failed to follow the procedures for obtaining leave and abandoned her position as a Program Technician II. 
 
The issues to be determined are:
 
1. Did the employee have a satisfactory explanation for her absence from September 29, 2011 through October 11, 2011?
 
2. Did the employee have a satisfactory explanation for failing to obtain leave from September 29, 2011 through October 11, 2011?
 
3. Is the employee ready, able, and willing to return to her full-time position as a Program Technician II?

III - FINDINGS OF FACT

The evidence established the following facts by a preponderance of the evidence:
 
Appellant began working for respondent on November 2, 1987.  At the time of her AWOL separation, she was a Program Technician II in the Workers’ Compensation Unit of respondent’s Contractor’s State License Board (CSLB).  Her immediate supervisor was a Supervising Program Technician II (SPT II), CSLB.
 
On September 1, 2011, the SPT II provided appellant with a Workplace Guidelines memo which stated in relevant part:
 
“Employees are expected to be at their desks ready to start work at their established starting time.  Employees who are going to be late for work must call the office and advise their supervisor of the reason for being late and anticipated time of arrival.  Failure to call could result in an employee being consider absent without leave (AWOL), and placed on dock status.
 
Leave Requests

All requests for absence from work must be pre-approved by the employee’s immediate supervisor.”
 
The SPT II discussed the Workplace Guidelines memo and necessary call-in procedures with appellant.
 
On September 21, 2011, appellant was called to a meeting to discuss violence in the workplace involving another employee.  After the meeting, she went back to her desk and felt sick.  She emailed her supervisor she was leaving for the day.  On September 22, 2011, appellant did not return to work but called and left a voice mail message for the Staff Services Manager I (SSM I), Licensing Division, CSLB.  The message indicated she was still very upset about yesterday’s meeting, would not be at work and would probably go out on stress.  The SSM I left a voice mail message for appellant stating she needed a doctor’s note for her absence.
 
On September 23, 2011, appellant did not return to work or call in to report her absence.  On Saturday, September 24, 2011, appellant learned her sister died.  Appellant’s mother, who was in ill health, lived with appellant’s sister.  After the death of appellant’s sister, her mother needed a place to live and moved in with appellant.  On Monday, September 26, 2011, appellant called the SSM I and left a voice mail regarding her sister’s death, her mother’s need for care and stated she would not be at work for 3 days.
 
On September 28, 2011, appellant did not report to work or call in to report her absence.  Her mother was treated in Emergency for a hand injury.  At 4:00 p.m. that afternoon, the SPT II called appellant and told her she would need to provide bereavement proof and any medical substantiation to prevent an AWOL.  Appellant, believing her mother had not been receiving appropriate medical care, took steps to obtain therapy and medical appointments for her mother.  It took several weeks for her to obtain a doctor’s appointment for her mother. 
 
On September 30, 2011, the SPT II again called appellant and told her she needed the doctor’s notes for her unapproved time off.  She also provided the CalPERS phone number so appellant could explore retirement options.  On October 3, 2011, the SPT II called appellant to advise she still needed a doctor’s note for her absences.  On October 4, 2011, she called appellant and once again explained she needed doctor’s notes for her unapproved time off and gave appellant her fax number.  She never heard from appellant and appellant never provided a doctor’s note for her absence.
 
On October 4, 2011, appellant called an Associate Governmental Program Analyst (AGPA) in respondent’s Personnel office.  The AGPA processes health and safety issues for respondent and had previously processed a Family Medical Leave Act (FMLA) request for appellant.  On October 4, 2011, she sent appellant a packet containing leave of absence forms, an SDI checklist, and a request for FMLA leave.  The letter indicated appellant should return the forms at her earliest convenience.   Appellant “didn’t bother to turn in” the leave of absence form and the AGPA never received completed forms from appellant. 
 
The AGPA also sent a copy of the leave of absence packet to the Health and Safety Analyst (HSA).  The HSA is the individual responsible for determining employee FMLA eligibility.  On October 7, 2011, she sent appellant a letter denying her request for FMLA because appellant had not worked the requisite 1250 hours required for FMLA eligibility.  On October 10, 2011, the HSA also sent appellant a Catastrophic Leave (CAT) packet.  She never received a medical certification from appellant to process the CAT leave.
 
On October 4, 2011, the SSM I saw appellant at the workplace shortly after 5 p.m. She knew appellant had been asked to substantiate her absences and that her recent request for FMLA leave was denied.  She approached appellant who was very upset and asked her for a doctor’s note to substantiate all of the days she was absent.  Appellant told her, “I don’t want to be bothered with that right now – I don’t have a doctor’s note – you will get a doctor’s note as soon as I figure out what is wrong with my mom.  I don’t know if I’m going to retire or go out on stress leave.”  Appellant told her, “I’m not going to be in for a while – I’m not sure how long.” 
 
Appellant did not call into work to report her absence from September 29, 2011 through October 4, 2011 and admits it was not until October 12, 2011 that she asked the doctor to fill out the medical certification.  On November 15, 2011, appellant obtained a doctor’s note which stated appellant had assumed care of her mother.  The note indicated appellant’s mother was seen in Emergency on September 28, 2011 and had a doctor’s visit on October 12, 2011. 
 
Appellant’s mother is now in a rehabilitation center and appellant is exploring the options of long-term placement or in-home care with her.  Appellant understands her mother needs care and that her dementia will not improve.  No other family member is capable of caring for her mother and she will be able to return to work once her mother is placed in a long-term care facility. 

IV - CREDIBILITY DETERMINATION

Except as otherwise provided by statute, 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 . . . (c) The extent of [her] capacity to perceive, to recollect, or to communicate any matter about which [she] testifies . . . (f) The existence of or nonexistence of a bias, interest, or other motive . . . (h) A statement made by [her] that is inconsistent with any part of [her] testimony at the hearing.  (Evid. Code, § 780.)  The ALJ makes the following credibility determination. 
 
Appellant’s inability to recollect facts regarding her actions during the AWOL period is suspect.  She claims to have faxed an emergency room document dated September 28, 2011 to personnel, “at some point to show she had been in the emergency room with her mother,” which contradicts her testimony, “she didn’t realize she had to cover herself” for her absences.  Appellant’s claim her supervisors did not discuss the Workplace Guidelines memo with her is also not believable.  Her supervisor testified credibly that she discussed the call-in procedure outlined in the Workplace Guidelines memo with appellant.
 
Lastly, appellant’s claim she updated respondent on her new contact information is not believable.  She testified she gave her supervisor her new contact information on at least two occasions, stating she did not fill out a form, but “wrote it on a sticky.”  Appellant’s testimony she updated respondent with her new telephone number is not believable, as she has a strong motive to fabricate information and did so at every opportunity.  

V - ANALYSIS

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 September 29, 2011 through October 11, 2011. 
 
Section 19996.2(a) of the Government Code 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  these matters by a preponderance of the evidence.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 
 

Appellant does not have a satisfactory explanation for her absence.

Caring for an elderly mother and mourning the death of a sister are both valid reasons for not reporting to work.  However, after appellant’s 3-day bereavement leave expired, it was incumbent upon her to obtain some type of documentation to explain her continued absence from work.  She did not.  Respondent provided several different forms for various types of leave, medical and otherwise, but appellant didn’t bother to complete the forms for a Leave of Absence or CAT leave, after she was denied FMLA leave.
 
Appellant’s explanation for her absence is unclear.  Although she claims she was under severe stress, she never went to the doctor to obtain treatment or a medical excuse.  She gave respondent several reasons for her absence, including, possible retirement, stress leave or FMLA leave.  When her request for FMLA leave was denied, appellant should have returned to work or provided a satisfactory reason for her absence.  She did not.  
 
Respondent made it crystal clear in writing and verbally, appellant was expected to provide documentation to substantiate her absences and call work every day.  Instead, appellant responds, “I was just dealing with my mom and sister.”  The only note appellant provided was for an emergency room visit which occurred before the AWOL period; and a doctor’s appointment which occurred after the AWOL period.  These documents do not assist appellant in meeting her burden of proof she had a satisfactory explanation for her absence.   
 

Appellant does not have a satisfactory explanation for not obtaining leave.

Appellant’s argument she was not given an opportunity to read respondent’s Workplace Guidelines memo  is not persuasive.  Appellant was provided a copy of the Workplace Guidelines memo and had ample time to read it between the time she signed it, September 1, 2011, and her first date of absence, September 29, 2011.  Moreover, her supervisor had explained to her the need to call in each day she was absent.  Appellant’s belief all she had to do was call in once to cover any time off until she returned to work is not supported by any credible evidence.
 
While it is laudable appellant wishes to care for her elderly mother, she cannot do so at the exclusion of informing her employer of the reason for her absence.  Appellant failed to call respondent for nearly 2 weeks.  And her argument respondent knew she had a sick mother does not excuse appellant from following respondent’s procedure for obtaining leave.  To her credit, appellant did apply for FMLA leave.  However, because she had not worked at least 1250 hours, or approximately 5 of the last 12 months, she was not eligible for FMLA leave and had no other leave credits available.
 
Most importantly, appellant, though stating she was caring for her mother, did not provide any evidence of her mother’s need for 24-hour care.  In fact, the medical certification she obtained stated it was not medically necessary for her to be off work to care for a family member with a serious health condition.  Respondent provided many opportunities during the AWOL period for appellant to provide the necessary documentation.  Appellant failed to avail herself of these opportunities.
 
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.”  Appellant mistakenly believed respondent should have to guess when she was ready to return to work. 
 

Appellant is not ready, able, and willing to return to her position.

Appellant testified she is in the process of either placing her mother in long-term care or, in the alternative, her mother would live with her.  In the event appellant is unable to secure long-term care for her mother, she will once again be responsible for her mother’s care.  Because appellant may be unsuccessful in placing her mother in long-term care, the same conditions would exist that led to her AWOL separation.

VI - CONCLUSIONS OF LAW

Appellant failed to prove by a preponderance of the evidence she had a satisfactory explanation for her absence.  Appellant failed to prove she had a satisfactory explanation for not obtaining leave and that she is ready, able, and willing to resume the discharge of her duties as a Program Technician II.
 
* * * * *
THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation, from the position of Program Technician II, with the Department of Consumer Affairs, Contractors State License Board, effective September 28, 2011, is denied.
  Updated: 8/22/2013
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