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DPA Case Number 97-3440 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: January 7, 1999
By: K. William Curtis, DPA Chief Counsel

DECISION

This matter came on regularly for hearing before Byron Berry, Administrative Law Judge, State Personnel Board, on October 28, 1997, and January 9 and March 18, 1998, at Los Angeles, California. Final arguments were submitted on May 1, 1998.
Appellant was present and was represented by Michael Hersh, Attorney, California State Employees Association (CSEA).
Frederick K. Foote, Jr., Staff Attorney, represented the Department of Social Services (DSS), respondent.
Evidence having been received and duly considered, the Administrative Law Judge makes the following findings of fact and Proposed Decision.

I

The above appeal for reinstatement after automatic resignation as absent without leave (AWOL) effective June 23, 1997, and appellant's appeal therefrom, complies with the provisions of Government Code section 19996.2.

II

Appellant commenced her career with the State of California as a Program Technician Trainee with the Department of Motor Vehicles on June 25, 1985. On July 31, 1986, she promoted to the position of Program Technician I, and she became a Motor Vehicle Field Representative (Range B) on July 31, 1987.
On March 2, 1989, she obtained the position of Office Assistant II (Typing) with the Department of Youth Authority.
On October 16, 1989, she became an Office Assistant (Typing) with the Department of Social Services. She obtained the position of Office Technician (Typing) on April 10, 1990, and she transferred to the Board of Equalization as an Office Technician (Typing) on December 2, 1993. She returned to the DSS as an Office Assistant (Typing) on July 1, 1995. She has no prior adverse actions.

III

Appellant had a myriad of physical problems which included a carpal tunnel injury, diabetes, and severe psychological problems.
Appellant was out on disability leave from late 1994 until November 1995. After she returned to work, the Permanent and Stationary Report of her physician limited appellant's typing activities to 45 minutes per hour with 15 minute breaks each hour. Appellant was not given 15 minute rest breaks by her supervisor. She went on medical leave on May 23, 1996.
On May 23, 1996, appellant was not able to work because of aggravation of her carpal tunnel injury that was caused by the failure of the DSS to provide her with rest periods and equipment mandated in the Permanent Stationary Report of her physician.

IV

On December 23, 1996, appellant's psychologist placed her on disability leave status periodically1 up until June 23, 1997. After being examined by her psychologist on June 20, 1997, the disability leave period was extended to July 21, 1997. On July 1, 1997, her psychologist faxed the Department a letter extending appellant's disability leave status until July 30, 1997.
In a letter dated June 27, 1997, the Department informed appellant that the medical substantiation from her physician stated that she was released to return to work on June 23, 1997, and she was therefore expected to return to work at the Los Angeles Residential North District Office on June 23, 1997. Appellant was advised that if she could not return to work on June 23, 1997, she must provide further medical substantiation for approval for her continued absence. The letter stated that the substantiation must be received by June 23, 1997, and failure to provide the required substantiation by June 23, 1997 would result in the determination that she was AWOL.
Appellant was advised that medical verification must include:
General Nature of the Illness When she can return to work (if unknown, give an approximate date);
Any restrictions and/or limitations she may have (include an expiration date of the restrictions);
What is the specific medical condition that limits her ability to perform her duties Original signature of physician; and
A physician's letterhead.
The letter advised appellant that if she was unable to return to work to perform the full range of her duties, she had the option of seeking a disability retirement or a voluntary resignation.
The letter was not sent to appellant's address. Appellant moved to another location, but she gave the Department her new address. The letter, which was mailed on June 17, 1997, went to her old address. Since appellant gave the post office a change of address card, the letter reached her at her new address, but she did not receive it until Saturday, June 21, 1997.

V

It is important to note that appellant was required to provide a medical substantiation that complied with the Department's requirements or standards, as indicated above, within two days after she received it. The likelihood of appellant being able to visit her psychologist on Saturday or Sunday was somewhat remote. Secondly, if she were able to see her psychologist that Saturday, Sunday, or Monday, it was somewhat problematic to assume that the psychologist could provide the appropriate medical substantiation on June 23, 1997. Moreover, the brief period of time that appellant had to acquire the medical substantiation did not allow for the possibility that the psychologist was on vacation, out of town, or otherwise unavailable.
The Department's expectations and requirements were not realistic under the circumstances.

VI

On June 20, 1997, appellant was examined by the psychologist who continued appellant's disability status until July 21, 1997. This information was faxed to the Department on June 20, 1997. On June 24, 1997, appellant called the office and attempted to reach her supervisor, but she was forwarded to another employee. Appellant asked her to check with appellant's supervisor to see if the fax from her psychologist's office which extended her disability leave to July 21, 1997, had been received. The employee informed appellant that the fax was "okay." Appellant assumed that this meant that the content of the fax was acceptable to DSS.
On July 1, 1997, the psychologist faxed the Department a letter extending appellant's disability status to July 30, 1997 because appellant continued to suffer from depression, insomnia, fatigue, and anxiety.
Appellant's current doctor is an Orthopedic Surgeon. He testified that orthopedically, there is no medication or other factor which would preclude appellant from reporting on time to work on a regular routine basis. He said that there are modifications that the Department could make which would allow her to work more effectively.
The physician indicated that she should be allowed to rest her upper extremities for 15 minutes out of every work hour. He also testified that she should be provided with an ergonomically acceptable work station, including the use of forearm pads and the adjustment of her workstation. This testimony was corroborated by his January 5, 1995 medical report which was submitted into evidence.

VII

Appellant was required to have a satisfactory explanation for her absence from work. The extensive and complex nature of appellant's medical history certainly indicates that she met her burden of showing a satisfactory explanation for her absence from work.
Appellant must also provide a satisfactory explanation for her reason for not obtaining leave or permission to be absent. The unrealistic time constraints which required appellant to provide the detailed medical substantiation on Monday, June 23, 1997, after receiving the Department's letter on Saturday, June 21, 1997, was a serious factor to be considered. Additionally, appellant was informed that her supervisor received the fax which indicated that the psychologist extended appellant's disability leave status. The Department did not tell appellant that the fax did not meet its requirements.
Appellant must also establish that she is ready, able, and willing to resume the discharge of her duties. Appellant and her physician have testified that appellant can return to work as long as she is reasonably accommodated, as indicated above.

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PURSUANT TO THE FOREGOING FINDINGS OF FACT, THE ADMINISTRATIVE LAW JUDGE MAKES THE FOLLOWING DETERMINATION OF ISSUES:

Appellant was absent without approved leave from June 23, to June 27, 1997.
In the case of Coleman v. Department of Administration (DPA) 15 Cal.3d 1102, the California Supreme Court held that an employee terminated under the automatic resignation provision of Government Code section 19996.2 has a right to a hearing to examine whether the employee had a satisfactory reason for his/her absence and a satisfactory reason for not obtaining leave to be absent. If the employee can establish satisfactory reasons for both, DPA determines whether the employee is ready, able, and willing to return to work or in the alternative, has leave from his or her appointing power to be absent.
Government Code section 19996.2 provides that reinstatement may be granted only if the employee makes a satisfactory explanation to the Department 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 discharges the duties of his or her position, or, if not, that he or she has obtained the consent of his or her appointing power for a leave of absence to commence upon reinstatement.
The respondent practically conceded that appellant met her obligation to provide a satisfactory explanation for her absence from work. In respondent's written argument, counsel stated, "The Department concedes that the evidence presented may meet appellant's obligation to establish a satisfactory explanation to the Department as to the cause of her absence from work."
Appellant has provided a satisfactory explanation for her absence from work.
Appellant must provide a satisfactory explanation to the Department for her failure to obtain a leave of absence. Appellant was placed on disability leave by her doctor. She was in continuous communication with the Department and she notified the Department of her medical status with documentation. When appellant received notification on June 21, 1997, of her pending AWOL status, she was not provided sufficient time to get all of the required documentation into the office by Monday, June 23, 1997.
The people that appellant needed to contact and get information from were not available on the weekend. If she had been given sufficient time to obtain that information, she would have submitted the required documentation on time. Even with the restricted time frame, appellant was in contact with her office and her psychologist on June 20, 1997, and attempted to get the matter resolved to the best of her ability. Appellant has provided a satisfactory explanation for her failure to obtain a leave of absence.
Appellant must be ready, able, and willing to resume the discharge of the duties of her position. Appellant's physician testified that appellant could return to work if she is reasonably accommodated, by allowing her to rest her upper extremities for 15 minutes after every hour, and if she is provided with an ergonomically acceptable workstation including the use of forearm pads, including the adjustment of her workstation.
Government Code section 19230 (c) prohibits Departments from denying an employment opportunity to an employee with a disability if the basis for the denial is the need to make accommodation for the physical or mental limitations of the employee. Government Code section 12940, 42 U.S.C. Section 12101 et seq. Ronald J. Casado (1998) SPB Dec. No. 98-01. Government Code section 19702 (a) and (d).
It is found that appellant is ready, able, and willing to resume the duties of her position with the above-indicated reasonable accommodation.
Appellant has satisfied the criteria for making a satisfactory explanation to the Department as to the cause of her absence and her failure to obtain leave for her absence. She demonstrated through medical testimony that she is ready, able, and willing to resume the discharge of her normal duties with reasonable accommodation as testified to by her doctor.

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WHEREFORE IT IS DETERMINED

that the request for reinstatement after automatic resignation effective June 23, 1997, is granted.
I hereby certify that the foregoing constitutes my Proposed Decision in the above-entitled matter and I recommend its adoption by the Department of Personnel Administration as its decision in the case.
DATED: August 28, 1998
 
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FOOTNOTES

1. Appellant's psychologist extended her disability status for about 30 days every month.
 
  Updated: 4/30/2012
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