DPA Case Number 09-F-0084 - Request for Reinstatement after Automatic Resignation (AWOL)
Final Non-Precedential Decision Adopted: October 26, 2009
By: Debbie Endsley, Director
DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 P.M. on August 19, 2009 in Riverside, California. A second day of hearing was held on September 23, 2009 in Riverside, California to allow respondent to complete its case in chief and appellant to offer rebuttal evidence.
Appellant was present and was represented by Andrea Perez, Legal Counsel, California Statewide Law Enforcement Association.
Kristy Schieldge, Senior Staff Counsel, represented the Department of Consumer Affairs, respondent.
I – JURISDICTION
On April 24, 2009, the Department of Consumer Affairs, respondent, notified appellant, by mail, he was being automatically resigned for being absent without leave (AWOL) from April 16, 2009 through April 24, 2009. Appellant filed a request for reinstatement appeal with DPA on May 8, 2009.
California Government Code section 19996.2 authorizes DPA 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.
II – ISSUES
Appellant argues since he works from home, he was working during the period of April 16, 2009 through April 24, 2009, and therefore was not required to obtain leave. He is also contends he is ready, able, and willing to work.
Respondent contends appellant was not working during the period of April 16, 2009 through April 24, 2009 which is exemplified by his failure to call his supervisor on a daily basis. Respondent also contends appellant was never ready, able, and willing to work.
The issues to be determined are:
- Did appellant have a valid reason for his absence from April 16, 2009 through April 24, 2009?
- Did appellant have a valid reason for not obtaining leave from April 16, 2009 through April 24, 2009?
- Is appellant ready, able, and willing to resume the discharge of his position as a Structural Pest Control Board Specialist?
III – FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began his career as a Structural Pest Control Board Specialist (Specialist) with respondent on October 1, 2007. His duties include the physical inspection of structural pest control companies and licensees’ activities to determine compliance with the Structural Pest Control Act; conducting field inquiries and inspections; performing pesticide enforcement inspections, applicator examination and auditing business pest control records on a periodic basis.
Respondent has eight (8) Structural Pest Control Board Specialists (Specialist). Seven (7) Specialists are permanently assigned to work from home. Each Specialist, including appellant, was to be available on a daily basis from 10:00 a.m. to 2:00 p.m. for calls or emails from respondent’s Sacramento headquarters.
Appellant was scheduled to work Monday through Friday from 8:00 a.m. to 5:00 p.m. He understood he was to call the Executive Officer (EO) daily before 8:30 a.m. He also understood his pay would be docked and he would be considered absent without leave (AWOL) if he failed to call his supervisor. Appellant did not call the EO on April 16, 17, 20, 21, 22 or 23, 2009. Respondent’s office experienced telephone problems the morning of April 24, 2009.
On December 11, 2008, the EO issued a corrective memorandum to appellant advising he would be considered AWOL if he failed to call her by 8:30 a.m. on a daily basis. On February 4, 2009, the EO issued appellant another corrective memorandum reiterating his failure to follow her earlier call-in procedure directive would result in his pay being docked and he would be considered AWOL.
On March 5, 2009, the EO issued another Corrective Memo to appellant which reminded him he was required to call respondent’s Sacramento headquarters on a daily basis before 8:30 a.m. She further advised him if he was unable to reach the EO, he was to continue calling until he reached either one of three individuals. Appellant never called any of the three individuals.
At his May 6, 2009, Coleman hearing, appellant admitted his frustration with the call in procedure and balked about calling in each morning. Appellant was specifically asked what work product he produced on Friday April 17, 2009. He responded: “I was I think I was working at my – – there’s a bunch of these days was just at home working on the computer.”
When asked if he had proof of his work on April 17, 2009, appellant replied: ” Uh – yeah, but it’s not – it’s not dated material – I mean – I don’t see how I can – I can’t – I don’t think I produce you some evidence that I did this and this day or may – maybe there’s something that’s dated that date, I’m not sure, but – um – uh – most of my cases are – you know – some of them are several months old and – uh – the date I started, I remember the date – haven’t gone out yet and with that case I’m still not sure what I was supposed to do with it.” Appellant was unable to produce any work product at his Coleman hearing. Appellant was unable to produce any work product at his AWOL hearing.
An employee who is a specialist worked out of his Camarillo home. He talks to someone at respondent’s Sacramento Headquarters office on a daily basis. A second specialist also works from home as does another specialist. The last specialist does not talk to respondent’s Sacramento Headquarters on a daily basis, but responds to emails 3-4 times per week. He travels about 4 out of 5 days per week and sometimes every day to accomplish his work. Upon receipt of a new file, he immediately calls the client and schedules an appointment. He makes notes and places notes on his desktop on a daily basis. He uses the state-issued desktop daily to log his running notes on his files. The last specialist was later assigned a specific file to work and noted appellant had done no work on the file and no arrangements had been made to visit the site. He also reviewed an unlicensed activity case and found no indication the file had been worked by appellant and the statute of limitations had expired.
On May 18, 2009, the Chief Enforcement Officer (CEO) reviewed the 18 files assigned to appellant. The CEO found no work product produced by appellant in 17 of the 18 files assigned to appellant during the period of April 16, 2009 through April 24, 2009. The CEO found appellant had no contact with subjects, complainants, respondents or Sacramento Headquarters on 17 of the files. One file, Cooley’s Pest and Termite Control, did indicate some contact and a Report of Findings dated early in 2009, but no work was indicated for the period of April 16, 2009 through April 24, 2009.
Another file assigned to appellant had a note written by appellant indicating there had been contact with the complainant. The CEO and his staff followed up with complainant and determined the note was fictitious as there had been no contact with complainant by appellant.
An Information Security Analyst, who is a computer forensics specialist, in early August 2009, performed an analysis of appellant’s network activity for the AWOL period of April 16, 2009 through April 24, 2009. The analysis included a review of appellant’s email and laptop activity. His review found appellant had never accessed the Internet during the AWOL period. He also discovered the appellant had sent only one email on April 24, 2009 for the entire AWOL period. The review also indicated the appellant had not turned his computer on at any time on April 16, 17, 20, 21, 22, or 23, 2009.
IV – PRINCIPLES OF LAW
Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with DPA. Section 19996.2(a) also provides: “Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement.”
Additionally, in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court held that an employee terminated under the automatic resignation provision of Section 19996.2, has a right to a hearing to examine whether he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he is ready, able and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.
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 position. All that is required is the AWOL notice give a date certain on which the AWOL statute will be invoked giving the employee adequate opportunity to request his Coleman hearing.
As set forth 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.”
The appellant has the burden of proof and must prove by a preponderance of the evidence he had a valid reason for his absence, for not obtaining leave and he is ready, able, and willing to resume the discharge of his duties. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) The party who bears the burden of proof has the general burden of coming forward with a prima facie case. (Director v. Greenwich Collieries (1994) 512 U.S. 267.) 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.)
V – ANALYSIS
The genesis of the AWOL statute is based on an employer’s right to expect employees to perform their jobs and report to work when expected to be there. As a Structural Pest Control Board Specialist, appellant had the luxury of working from home. However, the luxury came with the responsibility of being available by phone to respondent’s headquarters between the hours of 10:00 a.m. and 2:00 p.m. Appellant knew he was to call his supervisor or her designee on a daily basis by 8:30 a.m. or be considered AWOL. Appellant’s argument he was not absent without leave from April 16, 2009 through April 24, 2009, because he was working from home, is not supported by the evidence. Appellant failed to complete the simple task of calling the office and did not accomplish any work for respondent using his state-issued cell phone, Blackberry, computer, or by any other means from April 16, 2009 through April 23, 2009.
Appellant must take full responsibility for creating the environment which lead to his AWOL separation. His duties were to make physical inspections and conduct field inquiries which could not be done without some documentation either in longhand or with the use of the computer. One solitary email in 7 full working days is insufficient to indicate appellant accomplished any work for respondent. Moreover, appellant denied having any written documentation of work product during his Coleman hearing, and the 4 pieces of paper purporting to be logs of his daily activities are not credible.
Moreover, his testimony he called respondent’s headquarters in Sacramento on April 16, 2009, and was given contrary call-in instructions by a woman whose name he did not recognize, is not believable. Appellant’s testimony lacks credibility for a variety of reasons. He changes his statements; appears to fabricate evidence; and has convenient memory lapses relating to the AWOL period. He testified inconsistently and previously non-existent material magically appeared at the AWOL hearing.
Lastly, appellant’s testimony “it was irrelevant to call his supervisor” when the March 5, 2009 directive clearly instructed him to do so, belies appellant’s contention he was working.
VI – CONCLUSIONS OF LAW
Appellant failed to prove by a preponderance of the evidence he had a valid reason for his absence. Appellant failed to prove by a preponderance of the evidence he had a valid reason for not obtaining leave. Because appellant failed to prove he had a valid reason for his absence or for not obtaining leave, DPA need not determine the issue of whether he is ready, able, and willing to work.
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WHEREFORE IT IS DETERMINED, the appeal of appellant for reinstatement after automatic resignation from the position of Structural Pest Control Board Specialist with the Department of Consumer Affairs effective April 15, 2009, is denied.
