DPA Case Number 00-S-0059 - Reinstatement After Automatic Resignation
Final Non-Precedential Decision Adopted: August 24, 2000
By: Howard Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on August 1, 2000, at Sacramento, California.
Appellant was present and was represented by Jorge A. Salinas and Jeffrey Young, Labor Relations Representatives, California State Employees Association (CSEA).
Jon D. Humphreys, Associate Personnel Analyst, represented the Department of Transportation (Caltrans), 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 effective close of business May 23, 2000, for being absent without approved leave from May 24 through June 15, 2000.
On June 21, 2000, CSEA filed a request (appeal) for reinstatement after automatic resignation on behalf of appellant. The appeal complies with the procedural requirements of Government Code section 19996.2.
II - CAUSE FOR APPEAL
On June 16, 2000, respondent sent appellant a Notice of Automatic Resignation advising him that he was being automatically resigned effective April 14, 2000. By notice dated June 19, 2000, the effective date of the automatic resignation was amended to close of business May 23, 2000 the last day appellant was on approved leave.
CSEA filed a form appeal, which did not set forth the cause(s) for the appeal. At the hearing appellant claimed that he had a satisfactory reason for being absent and not obtaining leave. He also claimed that he is currently ready, able and willing to return to work.
III - REASON FOR BEING ABSENT
Appellant last worked on Friday, April 28, 2000. On Monday May 1, 2000, he visited his family physician. The physician testified that on that date she spoke at length with appellant regarding his dissatisfaction with his job, but did not perform a physical examination. The physician concluded appellant was suffering from “anxiety-work related stress” and recommended counseling. She also recommended he be off work until counseled.
Thereafter, the physician examined appellant on May 16, May 23, June 5 and June 19, 2000. On each of those occasions she concluded he was continuing to suffer from stress, anxiety and “job harassment,” and recommended he remain off work.
The physician last examined appellant on July 19, 2000. At that time she determined he could return to a modified work schedule of four (4) hours a day so long as he was placed under a different supervisor.
Consistent with the physician’s evaluation, appellant testified he continued to be unable to work between May 24 and June 15, 2000 (the period at issue) because he was suffering from heart palpitations, confusion, sleepiness and drowsiness and inability to concentrate.
The evidence established that appellant reasonably relied on his physical symptoms and his physician’s conclusions that he was medically unable to work between May 24 and June 15, 2000.
IV - REASON FOR NOT OBTAINING LEAVE
Appellant did not report for work on Monday May 1, 2000. On May 2, 2000, appellant came into the work place at approximately 10:00 a.m. and handed his supervisor a Work Status Report (WSR) completed by the physician. The appellant’s supervisor was on the phone when the appellant handed him the report. The appellant left without talking to his supervisor. The report indicated the physician had examined appellant and determined he should be off work to May 9, 2000. Based upon the report, the supervisor placed appellant on approved medical leave to May 9, 2000.
On May 9, 2000, appellant came to the work place but did not enter the building. He left an envelope at the front gate with the security guard. The guard called appellant’s supervisor and the supervisor picked up the envelope the same day. The envelope contained an “Absence Excuse” which was completed by the physician. The excuse stated appellant was unable to work from May 1 through May 15, 2000. Based upon the excuse, the supervisor extended appellant’s approved leave to May 16, 2000.
On May 16, 2000, appellant left another envelope with the guard. The supervisor opened the envelope and read the contents. It contained another excuse completed by the physician. The excuse stated appellant was examined on May 15, 2000, and was not able to work from May 15 to May 23, 2000, “pending referral for counseling.” The supervisor extended appellant’s leave through May 23, 2000 based upon the excuse.
Appellant did not contact his supervisor and did not provide any further medical substantiation to the supervision after May 16, 2000. He did not return to work on May 24, as expected, or any date after May 24, 2000. He was absent a total of 15 consecutive workdays when respondent automatically resigned him.
Appellant received his Notice of Automatic Resignation on or about June 16, 2000. He returned to his doctor’s office on June 19, 2000. According to the physician, appellant told her that he had been let go for being absent from work without medical substantiation.
At some time prior to or on June 19, 2000, the physician provided appellant with copies of WSR’s for his visits on May 23, June 5, and June 19, 2000. Also on June 19, 2000, appellant delivered the additional WSR’s to the guard at the front of appellant’s workplace. At the time the medical substantiation was delivered to the workplace, respondent had already automatically resigned appellant.
Appellant testified that he stopped providing medical substantiation after May 16, 2000, because of a conversation he had with his physician on June 5, 2000. He stated he asked her at that time whether her office mailed medical excuses to his employer for him; and she assured him “We mail them.”
The physician did not recall talking to appellant about his work status report until June 19, 2000 (which was after his automatic resignation). She testified that appellant told her he was being relieved from work because no one had submitted medical excuses to his employer. She also stated he seemed confused as to whether he had to give a copy of the medical excuses to his supervisor or whether her office would mail them to respondent’s Personnel Office. She explained to him that the WSR’s had been mailed to the workers’ compensation carrier because he was claiming a workers’ compensation injury. The workers’ compensation claim was denied in July 2000.
The evidence established appellant did not request or obtained an approved medical leave through his supervisor for the period May 24 to June 15, 2000. It did not establish that appellant spoke with his physician as early as June 5 regarding the mailing of forms. The physician was able to contextually verify her recollection as to the date of their conversation (June 19), by reviewing the order of her records. She concluded the discussion took place during the June 19, 2000 office visit, since it was placed in the record ton the date she received and discussed his Family Medical Leave Act (FMLA) paperwork with him. (That FMLA paperwork was dated June 19, 2000.)
In the alternative appellant claimed that he submitted medical substantiation upon which respondent could have relied to find she continued to be medically unable to perform her job from May 24 through June 15, 2000. That argument overlooks the fact that the additional medical substantiation was not provided until after appellant was automatically resigned.
V - READY, ABLE AND WILLING
The physician last saw appellant on July 19, 2000, which was approximately two weeks before the hearing. At that time, the physician determined that appellant was suffering from “job-related anxiety,” “work-related stress” and “job harassment.” She also determined he could return to modified work until a re-evaluation on August 9, 2000. She identified modified work as a four-hour workday in a new environment (new supervisor).
Despite this medical evidence, the physician testified that appellant was “ready, willing and able to return to work.” She stated she had not examined appellant in the interim two weeks but recommended he be returned to work without restriction because his workers’ compensation claim had been denied. Appellant testified he is ready, able and willing to return to work without accommodation. He stated, his “confusion has cleared;” he is “rested;” and he “feel’s better.”
The evidence that appellant is able to work without restriction was not convincing by a preponderance standard when weighed against the August 16, 2000, medical report of the physician, which was the last date on which she saw her patient.
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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 he/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/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 the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
Appellant proved by the preponderance of the evidence that he had a reasonable explanation for not reporting to work between May 24 and June 15, 2000. Appellant felt ill and went to see his doctor. He, thereafter, relied upon his doctor to evaluate his symptoms and determine whether he could return to work. His doctor told him he should not work and provided medical substantiation to that effect.
The appellant failed to prove by the preponderance of the evident that he had a satisfactory explanation for not having obtained leave. He was absent from work between May 24 and June 15, 2000, which was 15 working days. Not once during that period did he contact his employer and request an extended medical leave of absence. Nor did he submit medical substantiation sufficient to support extending his leave beyond May 23, 2000. An employer has a right to expect its employees to report to work unless the employee contacts his supervisor or other designated supervisor at the work site and advises that he is unable to work. Further, filing a claim for workers’ compensation benefits does not relieve an employee of the responsibility for advising his employer that he cannot be present at work. Absent notice the State employer is unable to ensure that the employee’s workload is reassigned or prioritized to serve the public adequately.
Appellant provided no reasonable explanation for his failure to contact his supervisor after May 16, 2000, to request leave and determine whether medical substantiation had been forwarded.
Finally, it is concluded that appellant did not establish that he is medically able to return to work. The last reliable medical information provided stated appellant could only work part time and under a different supervisor. Absent prior reasonable accommodation, DPA does not have authority, pursuant to Government Code section 19996.2, to reinstate an employee and order a different or new reasonable accommodation, including reassignment of the reinstated employee.
For the reasons set forth above, it is concluded appellant should not be reinstated to the position of Delineator with Caltrans.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective May 23, 2000, is denied.
