Final Non-Precedential Decision Adopted: April 4, 2000
By: Howard Schwartz, DPA Chief Counsel
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 13, 2000, at Sacramento, California.
Appellant was present without representation.
John T. Kennedy, Nossaman, Guthner, Knox & Elliot, LLP, Attorneys at Law, represented the Legislative Counsel Bureau (Bureau), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Respondent automatically resigned appellant from her position as Legislative Clerk with the Bureau effective beginning of business January 3, 2000, for being absent without approved leave from January 3 through January 14, 2000. On January 22, 2000, appellant filed a request (appeal) for reinstatement after automatic resignation. The appeal complies with the procedural requirements of Government Code section 19996.2.
II - CAUSE FOR APPEAL
By letter dated January 28, 2000, respondent notified appellant that on February 7, 2000, she would be retroactively resigned effective January 3, 2000. Thereafter, appellant filed her request for reinstatement with DPA claiming she had a satisfactory excuse for being absent without approved leave and that she is currently ready, able and willing to return to work.
III - PRELIMINARY FACTS
Appellant was granted a general one-year leave of absence from January 12, 1999, through January 2, 2000, to care for her ill mother. The letter granting appellant her leave of absence advised appellant that she was expected to return to work on January 3, 2000. If she was unable to return on that date, the letter advised her she should contact respondent by December 6, 1999.
In February 1999, appellant’s mother passed away. On December 7, 1999, appellant sent a letter to respondent requesting an extension of her leave of absence. The letter read as follows:
“Because I this year temporarily lost the used of my right arm, the injury to which had been aggravated by being forced to file for long hours during the Legislative Sessions of 1997 and 1998. Because I am in physical therapy as a result. Because returning to work as a messenger where a large part of the job will be filing which involves the kind of pushing, pulling and gripping that the U.S. Department of Labor recently advised employers could cause pain and injury to employees. Because I am still in the process of sorting out my mother’s affairs which require periodic trips to England, I request family leave of absence for one year beginning in January 2000.”
At the time appellant submitted the above request, respondent had prior medical reports from appellant’s physicians indicating appellant had a lifting restriction of 15 pounds and was able to work with that accommodation. Appellant had been working subject to the restriction after a 1997 injury and prior to her original leave of absence.
By letter dated December 22, 1999, respondent denied appellant’s request for another year’s leave. The reason for the denial was that appellant had submitted medical information that she was able to perform the full range of her Messenger duties. The letter also advised appellant that she was ineligible for leave under the Family Medical Leave Act (FMLA) because she had been on an unpaid leave of absence for 12 months and on furlough status1 for the four months prior to her leave of absence.
Appellant was advised that if the circumstances of her injury had changed over the prior year to the degree that it impacted her current ability to perform her duties, she was required to submit written substantiation from a doctor (including any specific restrictions applicable) prior to January 3, 2000 (the date her current leave expired).
Appellant did not contact respondent or submit any additional medical information prior to January 3, 2000. Appellant did not report for work on January 3, 2000. She did not report for work on any date following January 3, 2000.
IV - REASON FOR ABSENCE
Appellant testified that the reason she was absent from January 3 through January 14, 2000, was a physical disability to her right arm and the use of prescription drugs. She stated that her disability did not prevent her from working but she could not file, which was a requirement of her job. She also testified that she took issue with a revised duty statement, which was provided along with the letter denying her request for additional leave. That duty statement indicated incumbents must demonstrate the ability to maintain bill files by accurately filing all versions of bills.
Respondent and appellant jointly submitted medical records from 1999 regarding appellant’s disability. Included in those records were copies of work status reports originally telefaxed to respondent by appellant’s attorney at 4:46-4:48 p.m. on January 3, 2000. They included reports dated October 4 and October 11, 1999. The October reports indicated appellant was restricted from lifting over five pounds. A medical report from her physician dated September 10, 1999, was also submitted. It indicated appellant, who was injured April 9, 1997, could work without restriction at her usual job. The report was based upon an office visit and examination the physician performed August 6, 1999. In the report, physician concluded:
“I see no reason to change my opinion as I expressed it in the 5.15.98 report, that she remains permanent and stationary and that she should avoid very heavy lifting at and above shoulder height. She should avoid prolonged periods of repetitive reaching and pushing without the ability to take a short break. She should avoid prolonged periods of writing without a short break.”
Between January 4 and January 28, 2000, appellant’s attorney presented respondent with updated work status reports including reports dated November 11, 1999, and January 4, 2000. Both reports indicated appellant could return to modified duty with no lifting of over 15 pounds. The January 4, 2000, report also indicated she was to engage in no work above shoulder height, no repetitive use of her right arm/hand and a new restriction which was “should not do repetitive filing.” (There was no indication as to why appellant’s physical restriction would prevent her from filing bills, none of which weigh 15 pounds.)
It is found that appellant’s actual reason for not reporting back to work on January 3 was that she was unhappy with her job duties and attempting to negotiate revised accommodation to avoid filing bills.
V - REASON FOR NOT OBTAINING LEAVE
After appellant was denied an extension of her leave beyond January 2, 2000, she did not call or contact respondent. She also did not submit any medical substantiation indicating the circumstances surrounding her injury changed in 1999 to a degree that would impact her ability to perform her duties. Appellant’s sole response to the denial of her extended leave request was to place a copy of the denial in the mail to her attorney and confirm with her attorney’s office that the work status reports were forwarded to respondent.
Appellant acknowledged that after her request for additional leave was denied she had no further contact with respondent until the date of the hearing.
VI - READY, ABLE AND WILLING
PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19996.2 provides an automatically separated employee with the right to file a request 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 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.”
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 she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether she 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 he/she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.
Appellant failed to prove that she had a valid excuse for being absent from January 3 through January 14, 2000. Although appellant had a disability it did not prohibit her from working. It only required a weight and repetitive work restriction which had been accommodated by respondent since 1997. The fact appellant disagreed with respondent’s determination that the accommodation did not prohibit her from filing bills did not constitute a valid excuse for remaining off work for two weeks.
Appellant also failed to prove she had a valid excuse for not obtaining leave. Appellant was denied an extension of her leave of absence because she did not provide medical substantiation sufficient to support a medical leave; and respondent’s policy was to not grant over one year of a general leave of absence. Appellant did not contact her employer after the leave denial in December 1999 and made no effort to return to work.
Based upon the above, DPA makes no finding as to whether appellant is currently, ready, able and willing to return to work. Appellant’s appeal should be denied.
* * * * *
WHEREFORE IT IS DETERMINED