Final Non-Precedential Decision Adopted: January 11, 2005

By: Michael T. Navarro, DPA Director

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This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 5, 2005, at Riverside, California.

The appellant was present and was represented by Jacqueline Drucker, Attorney.

John Denvir, Staff Counsel, represented the California Department of Corrections (CDC), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Respondent automatically resigned appellant effective February 1, 2004, for being absent without approved leave from February 1, 2004 through March 5, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on March 17, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant’s case was previously set for hearing on June 4, 2004 and September 14, 2004. At the request of the parties, the case was continued on these dates.

Appellant claimed he had a valid reason for being absent because he was ill and unable to return to his position at CIM. Appellant contended he had a valid reason for not obtaining leave because respondent “knew where he was” and respondent did not provide adequate information on which his psychiatrist could make a determination whether or not appellant was able to return to work.' Appellant claimed he is ready, able, and willing to return to work in accordance with his psychiatrist’s return to work requirements.

Appellant testified he was absent from work February 1, 2004 through March 15, 2004 because of illness. He last worked on October 8, 2002. From at least October, 2002 through March, 2004, appellant received ongoing treatment for post traumatic stress disorder from both a psychiatrist and a psychologist. Appellant’s treating psychiatrist testified appellant’s symptoms at least initially included depression, insomnia, nightmares, and episodes of explosive anger and anxiety.

Both appellant and his psychiatrist testified appellant’s disorder and symptoms were related to appellant’s work environment at CIM. Appellant received an adverse action demoting him on or about September 30, 2002.' This action was overturned in October, 2003.' On or about February 19, 2004, he received a second adverse action dismissing him effective close of business March 18, 2004.

Previous documentation and the psychiatrist’s testimony indicated appellant was unable to return to work at CIM through February 1, 2004.' There was no documentation or testimony specifically regarding appellant’s inability to work after February 1, 2004. '

Appellant argued he had a valid reason for not obtaining leave for February 1, 2004 through March 15, 2004 because respondent knew he was ill and because respondent failed to provide his psychiatrist with adequate information on which the psychiatrist could determine whether or not appellant could return to work.

Prior to February 1, 2004, respondent received work status reports from either appellant or his psychiatrist apprising it of appellant’s continuing inability to return to work at CIM.' On at least two previous occasions, appellant received warning letters from respondent indicating he would be deemed absent without leave (AWOL) if he did not either report to work or provide respondent with information regarding his need to be absent.' On both prior occasions appellant provided the required medical information, and he was not considered absent without leave.

On or about October 2, 2003, appellant’s psychiatrist reported appellant was temporarily disabled until February 1, 2004.' On February 27, 2004 respondent sent appellant a “Warning Letter” informing him that unless he returned to work or obtained approval for his absence by 4:00 on March 5, 2004, he would be automatically resigned effective February 1, 2004.' Appellant was instructed to contact the Return-to-Work Coordinator (RTW Coordinator), and he was given her telephone number.' He was also informed he could contact the Employee Relations Officer and he was given that telephone number as well.' Appellant received the Warning Letter on March 1, 2004.

On March 4, 2004, appellant’s treating psychiatrist called the RTW Coordinator to request additional information regarding appellant’s work environment so that he could make a determination regarding appellant’s work status. The RTW Coordinator faxed a job analysis to the psychiatrist at 8:00 a.m. on March 5, 2004. At hearing the psychiatrist testified the faxed information was inadequate for him to determine if appellant could return to work.' There was no reliable testimony that the psychiatrist or the appellant contacted the RTW Coordinator to inform her of this inadequacy.

Appellant called the RTW Coordinator at 3:20 p.m. on March 4, 2004.' During that conversation, the RTW Coordinator twice reiterated to appellant that she needed an “off work order.” Appellant never provided respondent with medical verification of his need to be absent from February 1, 2004 through March 8, 2004 either prior to or after March 5, 2004.

Appellant testified he is ready, able, and willing to return to work in accordance with his doctor’s instructions.

Appellant has not reported to work at CIM since October, 2002. During this period, appellant has been diagnosed with varying degrees of disability ranging from total temporary disability to being able to perform the duties of another position, to being able to perform the duties of his current position at a location other than CIM. Immediately prior to February 1, 2004, appellant was totally disabled from any position at any location.'

Previous medical information provided to respondent by appellant’s psychiatrist indicated appellant’s disorder was tied to his work environment at CIM.' Appellant also testified that his medical problems were tied to his work environment and specifically to his supervisor.' Should appellant return to work at CIM, his supervisor would be the same as during the period of his previous disability.

At the time of hearing, appellant’s treating psychiatrist was unable to testify whether or not appellant was able to return to work in any capacity.'

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with the DPA.' Section 19996.2 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 therefore, 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.”

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Pursuant to 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.

In this case Appellant failed to prove by a preponderance of the evidence that he had a valid reason for being absent. ' Although there was ample testimony and documentation regarding appellant’s varying degrees of disability prior to February 1, 2004, there was no testimony or documentation regarding appellant’s ability to work during the period for which he was charged with being absent without leave.

Appellant also failed to prove by a preponderance of the evidence that he had a valid reason for not obtaining leave. Although he argued that respondent “knew where he was,” this argument is without merit. Respondent did not know if appellant was or was not able to come to work in any capacity for the period February 1, 2004 through March 8, 2004.'

Appellant’s contention that respondent did not provide adequate information on which his psychiatrist could determine appellant’s ability to return to work on March 5, 2004 is also unpersuasive.' Whether appellant could return to work as of March 5, 2004 does not address the period beginning February 1, 2004, when appellant had already been off work without approved leave.' The review of the job responsibilities and environment is relevant to appellant’s future capabilities rather than his past incapacity. Appellant’s psychiatrist had been making work capacity determinations for prior periods without the additional information he requested on March 5, 2004.'

There was no explanation why appellant or his psychiatrist waited until March 4, 2004 to request additional information or why appellant did not provide respondent with medical verification regarding his inability to work since February 1, 2004.'

Appellant knew he was to provide verification of his inability to work for the period February 1, 2004 through March 5, 2004. He simply failed to do so. Therefore, he did not have a valid reason for not obtaining leave.

Appellant also failed to prove by a preponderance of the evidence that he was ready, able, and willing to return to work. Appellant’s psychiatrist testified he was unable to endorse appellant’s return to work at the time of hearing. In addition, since both appellant and his psychiatrist indicated appellant’s disorder was tied to his work environment and appellant’s supervisor remained unchanged, it is highly likely that the psychiatrist’s prior determination that appellant is unable to return to work at CIM will remain.' In addition,' appellant’s desire to return to CIM given his past negative interaction with his supervisor, the unchanged work environment, and the resultant alleged disability is also in question.

Based on the lack of definitive, reliable evidence, appellant has failed to prove he is able and willing to return to his position in the current environment at CIM.'

 

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that the request for reinstatement after automatic resignation effective February 1, 2004, is denied.