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SAU AWOL Final Decision

CalHR Case No.:  12-O-0188

Request for Reinstatement after Automatic Resignation (AWOL)

Final Decision Adopted January 11, 2013
By:  Julie Chapman, Director


This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources (CalHR) (fn. 1)at 1:00 p.m. on September 18, 2012 in Riverside, California.
Appellant was present and represented by York Chang, Staff Attorney, Service Employees International Union Local 1000.  Jenny M. Wong, Senior Staff Counsel, Department of State Hospitals (DSH), represented DSH – Metropolitan State Hospital (MSH), respondent.


On June 4, 2012, DSH – MSH, respondent, automatically resigned appellant for being absent without leave (AWOL) from May 5, 2012 through June 3, 2012.  Appellant filed a request for reinstatement appeal with CalHR on July 17, 2012.
California Government Code section 19996.2 authorizes CalHR, 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 CalHR 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.  CalHR has jurisdiction over the appeal.


Appellant contends she was on approved FMLA leave and should not have been voluntarily resigned under the AWOL statute and is now ready, able, and willing to resume the discharge of her duties as a Registered Nurse (Safety) for Metropolitan State Hospital. 

Respondent argues appellant was not absent under approved FMLA leave, failed to provide the necessary medical substantiation when she returned to the workplace and the AWOL separation should be sustained.

The issues to be determined are:

1. Did appellant have a satisfactory explanation for her absence from May 5, 2012 through June 3, 2012?

2. Did appellant have a satisfactory explanation for not obtaining leave for May 5, 2012 through June 3, 2012?
3. Is the appellant ready, able, and willing to return to work and discharge the duties of a Registered Nurse (Safety)?


The evidence established the following facts by a preponderance of the
evidence.  Appellant began her career as a Registered Nurse (Safety) with respondent’s  Metropolitan State Hospital on September 8, 2006.  Her regular days off (RDO) were Thursday and Friday.  The Nursing Coordinator was appellant’s supervisor and is one of five Nursing Coordinators at respondent’s hospital and supervises four units in Nursing Services which includes 216 inmates, 125 staff and 4 Unit Supervisors. 
In 2008, appellant was diagnosed with clinical depression.  She believes her illness was brought on by mandated overtime, working night shifts and the inability to change shifts. In 2010, 2011 and 2012, appellant was granted Family Medical Leave Act (FMLA) leave to treat her clinical depression.  On January 12, 2012, appellant’s treating physician signed a Certification of Health Care Provider for Employee’s Serious Health Condition (Certification).
The Certification indicated that appellant suffered from a serious health condition stating in relevant part:  “[t]his patient has a chronic medical condition.  Flare up may occurs (sic) three to four episodes per month and up to five days per week/episode.  Patient may or may not need hospital admission.”  
The doctor also indicated under the section entitled, Amount of Time Needed, that appellant required leave on an intermittent or reduced schedule basis to attend follow-up treatment appointments, and that appellant would be “able to perform job function” if provided the necessary amount of time to treat the flare-ups of her chronic medical condition.  [Emphasis in original.]
On February 29, 2012, respondent approved appellant’s intermittent FMLA leave from January 12, 2012 through January 12, 2020.  The approval indicated she “must make a reasonable effort to schedule the treatment so that it doesn’t disrupt the employer’s operations, subject to the health care provider’s approval.”  Additionally, appellant was advised, “while on leave, you may be required to furnish a periodic update of your status and intent to return to work.” 
The Senior Psychiatric Technician works in the Central Staffing Office (CSO) and takes FMLA and sick calls from employees, but has no authority to approve any type of leave.  She records the information on the ‘absent/late report’ slip and refers it to the various Unit Supervisors for review/approval.  As frequently as once a week, the Unit Supervisors meet and review the ‘absent/late slips’ from CSO. 
On her RDO, Friday, May 4, 2012, at approximately 9:30 a.m., appellant called the Senior Psychiatric Technician and told her she was taking FMLA leave until May 30, 2012.  On May 6, 2012, appellant flew to Nigeria, Africa.
On May 22, 2012, appellant’s supervisor sent a letter to appellant because the information he received from the CSO conflicted with the approved FMLA leave.  Her FMLA approval was for intermittent leave, but the appellant had called in for the entire month of May 2012.  In accordance with her intermittent FMLA leave, appellant was required to provide an update of her status.  Her supervisor’s letter told appellant she must submit medical substantiation by June 1, 2012 or her absence was considered leave without pay. 
On May 27, 2012, appellant, now in Nigeria, called respondent’s CSO and told them she was taking FMLA leave through June 15, 2012.  The Senior Psychiatric Technician immediately called the unit staff to advise the appellant was now stating she would not return to work until June 15, 2012.  Appellant did not provide the requested clarification by June 1, 2012.  On June 4, 2012, respondent invoked the AWOL statute. 
Appellant returned to the United States on June 29, 2012, a full two weeks after she indicated she would return.  On July 2, 2012, appellant reported to work and was told she no longer worked for respondent.  She did not provide any explanation or documentation for her absence and was escorted off the hospital grounds.


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 [her] testimony at the hearing, including, but not limited to . . . (e) [Her] character for honesty or veracity or their opposites . . . (h) A statement made by [her] that is inconsistent with any part of [her] testimony at hearing.  (Evid. Code, § 780.)
Appellant appeared to fabricate her story as each question was asked and her veracity for the truth is suspect.  First, it is difficult to believe that a Registered Nurse who had completed a prescribed course of study and training and was licensed by the State of California as a professional nurse, did not understand the meaning of the word “intermittent.”  When asked what “intermittent” FMLA leave meant, she ponders the question for some time before stating, “I don’t really understand what that means.” 
Second, appellant gives contradictory testimony.  At one point she admits that she knew on May 4, 2012, when she called respondent to tell them she was taking the entire month of May 2012 off, that she was planning to travel to Nigeria.  She later changed her testimony claiming she does not remember when she decided to travel to Nigeria.  And later still, she claimed she had not yet decided to leave the country when she called respondent on May 4, 2012.  When asked if she told respondent her plans to travel to Nigeria, she abruptly responded, “I’m not required to do that!” 
Moreover, appellant’s testimony lacks veracity because she traveled to Nigeria, Africa, even though she testified she was, “tired and couldn’t get out of bed.”  Furthermore, although she called respondent’s CSO twice, she never told respondent she was in the hospital or Nigeria, just that, “I am continuing my FMLA.”  Lastly, appellant’s claim that a week after arriving in Nigeria, she “passed out” and awoke in a hospital a day later, is not supported by credible evidence.  Appellant’s picture of her alleged stay in a Nigerian Hospital lacks trustworthiness and authentication.  Her testimony is simply unbelievable. 


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 5, 2012 through June 3, 2012. 
In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court concluded the employee’s unapproved absence is deemed an abandonment of employment or a constructive resignation.  “Under the AWOL statute, when an employee is absent without leave for five consecutive days, it is the employee who severs the employment relationship, not the state.”  The court found that, “a civil service employee’s right to continued public employment is linked to the state’s legitimate expectation that the employee appear for work as scheduled.”
Additionally, the Coleman court held that an employee terminated under the automatic resignation provision of Section 19996.2 has a right to a hearing to examine whether she had a satisfactory explanation for being absent, whether she had a satisfactory explanation for not obtaining leave and whether she is ready, able, and willing to return to work.
Appellant did not have a satisfactory explanation for her absence.

Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence she had a satisfactory explanation for her absence.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)  Although CalHR has long held an illness of an employee or family member is a satisfactory explanation for an absence, appellant is unable to prove she was ill during the AWOL period.  Appellant provided two doctor’s note from Nigeria for the period of May 18, 2012 through June 1, 2012.  The notes not only fail to cover the entire AWOL period – they are hearsay.

“Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.  An objection is timely if made before submission of the case or on reconsideration.”  (Gov. Code, § 11513(d).)  Accordingly, respondent’s timely objection nullifies appellant’s proffered evidence.

It should also be noted that hearsay evidence is admissible in an administrative hearing if it is relevant, and is of the character or quality on which responsible persons are accustomed to rely in the conduct of serious affairs.  (McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044.)  However, notwithstanding respondent’s timely objection, the character and quality of the proffered doctor’s notes are not reliable and do nothing to substantiate appellant’s FMLA leave claim or her absence from work.
Appellant did not have a satisfactory explanation for not obtaining leave.

Appellant must prove by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave.  (Aguilar, supra, 25 Cal.4th 826 at p. 846.)  Appellant’s argument she was on an approved FMLA leave is not persuasive.  The Family Medical Leave Act (FMLA) is governed by the United States Code of Federal Regulations.  Under FMLA leave, an employee is entitled to a total of 12 administrative work-weeks of unpaid leave during any 12-month period for various medical reasons.  (5 C.F.R., § 630.1203(a).)

While it is true the appellant applied for and received approval under FMLA, the approval was based on a serious health condition of appellant, to wit, clinical depression.  FMLA leave includes a serious health condition of the employee that makes the employee unable to perform any one or more of the essential functions of his or her position.  (5 C.F.R., § 630.1203(a)(4).)  Specifically, appellant’s treating physician indicated the leave was required “to attend follow-up treatment appointments.” 

Appellant’s follow-up treatments were to be scheduled with her health care provider whose offices are located in Los Angeles, California.  The follow-up treatments were of an intermittent nature and did not contemplate travel to Nigeria, Africa.  Moreover, respondent relied on the representations of appellant’s FMLA Certification that she required only “intermittent” leave when it approved her FMLA leave.

Intermittent is to cause to cease for a time, to stop, to suspend or discontinue, to cease for a time or at intervals.  (The Living Webster, Encyclopedic Dictionary of the English Language (1977)  p. 503.)  Appellant was not at work consistently, not intermittently, from May 5, 2012 through July 1, 2012.  By her own admission, she traveled to Nigeria to seek more traditional “native” medications such as herbs, roots and nuts.  Had appellant requested FMLA leave on that basis, and it was considered reasonable, she could have been granted full-time FMLA leave.

The United States Supreme Court concluded that “[o]ne of the FMLA's stated purposes is to “entitle employees to take reasonable leave.”  (29 U.S.C.A., § 2601(b)(2); Coleman v. Court of Appeals of Maryland  (2012) 132 S.Ct. 1327.)  Appellant takes great liberty with the FMLA leave approved by respondent and takes undue advantage of the FMLA leave protections.  Respondent told appellant, “she may be required to furnish a periodic update of her status.”  However, when asked to provide the necessary information, appellant was in Nigeria visiting relatives and failed to substantiate her FMLA leave.

Further, if an employee does not timely provide the employer with notice of an FMLA-qualifying reason for the leave, the leave may be denied, 29 C.F.R., § 825.208(a)(1) and “the employee may not subsequently assert FMLA protections for the absence,” 29 C.F.R.,  
§ 825.208(e)(1).  (Rowe v. Laidlaw Transit Inc. (2001) 244 F.3d 1115).  Appellant obtained FMLA leave for a chronic condition, was granted intermittent leave for treatment by her local doctor, and then left the country for nearly two months. After failing to follow the conditions of her intermittent FMLA leave, appellant may not now assert FMLA protections for her absence.

Appellant’s final argument that, “no one told her the May 4, 2012 leave request was not approved,” misconstrues the facts.  Appellant admits she was aware of her responsibilities while on FMLA leave, but gives no reason for failing to adhere to those responsibilities.  Her attempt to fabricate a scenario under the guise of FMLA protected leave must fail, as she did not furnish a periodic update of her health status as required by her FMLA Certification. 

Appellant was told on February 29, 2012 she would be required to provide sufficient information if the circumstances of her need for leave changed or if respondent received information that questioned the validity of her reason for the leave.  Respondent wrote to her on May 22, 2012 asking for a health status update because it questioned the validity of her leave.  Appellant’s two-month trip to Africa was not in accordance with her approved FMLA leave.
Appellant is not ready, able, or willing to return to work
 By her own admission, appellant believes the working conditions of mandated overtime, working night shifts and the inability to change shifts, caused her illness.  If appellant manifests a belief that her workplace environment makes her ill, she is not willing to return to work.  Moreover, appellant fails to provide a return-to-work order from her treating physician.  Without more, appellant is unable to satisfy her burden of proof she is ready, able, and willing to return to work.


Appellant failed to prove by a preponderance of the evidence she had a satisfactory explanation for her absence or for not obtaining leave.  Appellant failed to prove by a preponderance of the evidence she is ready, able, and willing to discharge the duties of a Registered Nurse (Safety).
* * * * *

THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation, from the position of Registered Nurse (Safety), with the Department of State Hospitals - Metropolitan, effective May 2, 2012, is denied.
1.  On July 1, 2012, the Department of Human Resources succeeded the former Department of Personnel Administration in all functions and duties.


  Updated: 7/29/2014
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