Final Decision Adopted April 9, 2012

By:  Julie Chapman, Acting Director

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on March 15, 2012 in Sacramento, California.

 

Appellant was present and self-represented.  Kary Marshall, Staff Counsel, Department of General Services (DGS), represented DGS, respondent.

On December 23, 2011, DGS, respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from December 12, 2011 through December 23, 2011.  Appellant filed a request for reinstatement appeal with DPA on January 20, 2012.

 

California Government Code section 19996.2 authorizes DPA, after timely appeal, to reinstate an employee after automatic resignation if he makes a satisfactory explanation as to the cause of his absence and his failure to obtain leave and 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.  DPA has jurisdiction over the appeal.

Appellant argues he had a satisfactory explanation for his absence, believes he obtained leave and is ready to return to work as a Custodian Supervisor II.

 

Respondent argues appellant failed to provide sufficient documentation for his absence and the AWOL separation should be sustained. 

 

The issues to be determined are:

 

1. Did the employee have a satisfactory explanation for his absence from December 12, 2011 through December 23, 2011?

 

2. Did the employee have a satisfactory explanation for failing to obtain leave from December 12, 2011 through December 23, 2011?

 

3. Is the employee ready, able, and willing to return to work as a Custodian Supervisor II?

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

 

Appellant began working for the State of California on June 26, 2002 as a seasonal clerk until February 26, 2003.  Five years later he returned to respondent DGS as a Custodian.  On June 1, 2009, he was promoted to a Custodian Supervisor II which he held until he accepted a position at the Department of Emergency Medical Services as a Management Services Technician.  He was rejected during probation and exercised his mandatory return rights to respondent as a Custodian Supervisor II on September 3, 2011.

 

Appellant was not at work on December 12, 13, 14, 15, 19, 20, 21, and 23, 2011.  He suffers from various unnamed ailments which can become quite debilitating, such as migraine headaches.  Appellant produced phone records indicating on each of these days he called (916) 997-XXXX.  He believed (916) 997-XXXX to be his supervisor’s phone number. 

 

Appellant understood he needed to contact his supervisor within 30 minutes before the start of his shift, or 3:30 p.m., if he was not able to report to work.  His immediate supervisor was a Custodian Supervisor III.  Appellant’s phone records indicate he called his supervisor’s phone number within 30 minutes of his start time on December 12, 13, 14, 15, 19, 20, 21, and 23, 2011.  The supervisor did not testify. 

 

Appellant provided a “Release to return to work/school” dated December 19, 2011. The “Release to return to work/school” note excused appellant from work for a December 19, 2011 doctor’s appointment.  No other doctor’s notes were provided.  No doctors testified.  Respondent submitted its case on the record. 

The Administrative Law Judge makes the following 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 his testimony at the hearing, including, but not limited to . . . (a) His demeanor while testifying and the manner in which he testifies; (b) The character of his testimony; (j) His attitude toward the action in which he testifies or toward the giving of testimony.  (Evid. Code, § 780.)

 

Appellant exhibited a haughty attitude throughout the hearing and had little respect for the process.  His uncorroborated testimony that he personally provided an original doctor’s note to his supervisor is not believable nor is his testimony he spoke to his supervisor on December 15, 2011.  

 

Moreover, his testimony he was unable to obtain a copy of the original doctor’s note from his doctor is also suspect.  His story the doctor would not provide him with a copy of the original doctor’s note is made even more incredible when he testified he did not even ask his doctor for a note excusing him for the AWOL period.  Even more incredible is appellant’s testimony the doctor’s note he produced at the hearing is sufficient to grant him leave for his twelve day absence from work.  The doctor’s note only excused him for a December 19, 2011 doctor’s appointment and he feigns confusion when asked what period of time the doctor’s note is meant to excuse. 

 

When asked why he was providing a note indicating he was seen by the doctor on December 19, 2011 he responds, “I did not ask the doctor to include all my days of illness on the note if that’s what you’re asking.”  Appellant’s self-serving and unreasonable testimony is not credible.

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 he was not at work from December 12, 2011 through December 23, 2012. 

 

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 [his] absence and [his] failure to obtain leave therefor, and the department finds that [he] is ready, able, and willing to resume the discharge of the duties of [his] position or, if not, that [he] has obtained the consent of [his] appointing power to a leave of absence to commence upon reinstatement.”

 

The Coleman court concluded the employee’s unapproved absence is deemed an abandonment of employment or a constructive resignation.  The state employer need not attempt to locate AWOL employees and prove the employee intended to abandon his or her position.  Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence each essential element of his claim.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)  

 

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.)   

Appellant’s testimony he felt he was following everything he had been told to do is not credible.  Appellant was away from the workplace from December 12, 2011 through December 23, 2011 and can offer no credible proof he either spoke with his supervisor or otherwise obtained leave.  Furthermore, he admits his supervisor never told him his leave was approved. 

 

A civil service employer has a right to expect an employee to report for work unless the employee has been excused for illness or injury.   As stated in Bettie Davis v. Department of Veterans Affairs (1986) 792 F.2d 1111:  “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.” 

 

Because appellant has not proved essential elements of his claim, his ability, readiness or willingness is no longer at issue.

Appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for his absence.  Appellant failed to prove by a preponderance of the evidence he had a satisfactory explanation for not obtaining leave.  Because appellant failed to prove essential elements of his claim, DPA need not determine whether or not he is ready, able, and willing to return to his position as a Custodian Supervisor II.