Final Non-Precedential Decision Adopted: February 5, 2002
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 January 22, 2002, at Sacramento, California.
Appellant was present and was represented by Dennis J. Lovejoy, Labor Relations Representative, California State Employees Association (CSEA).
Kapiolani Lyman, Senior Legal 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.
Respondent automatically resigned appellant effective October 15, 2001, for being absent without approved leave from October 16 through October 23, 2001. On November 8, 2001, CSEA filed a request (appeal) for reinstatement after automatic resignation on behalf of appellant.
At the hearing, the ALJ held the record open for receipt of medical records from appellant’s treating physician, Thomas S. Pattison, M.D. On January 29, 2002, the representatives jointly submitted Dr. Pattison’s records and the record upon hearing were closed.
The notice and appeal comply with the procedural requirements of Government Code section 19996.2.
At the hearing, appellant claimed she was ill and unable to work between October 16, and October 23, 2001. Although she claimed she was permanently disabled, appellant considers herself ready, able and willing to return to work, with unspecified accommodation.
Appellant was off work on approved medical leave for a lengthy period of time in mid-2001. She was last examined by her physician on October 16, 2001. At that time the physician released appellant to return to work, with modified duties. The physician recommended that she schedule a return visit in eight weeks.
Appellant did not return to work. She stated she did not return to work because, unlike her doctor, she believed she was unable to work due to a prior back injury.
Appellant was scheduled for two appointments with the physician between October 16 and the date of hearing, January 22, 2002. She canceled both appointments.
The physician’s records contradict appellant’s claim that she was ill and unable to work between October 16 and October 23, 2001.
Appellant called her supervisor on October 16, 2001, and told her that her physician had changed her return to work date from October 16, 2001, to November 1, 2001. Her supervisor said that was okay so long as appellant submitted medical substantiation to that effect.
The supervisor then received a faxed copy of an October 16, 2001, medical report that appeared to be from the physician’s office. It differed from the actual return to work report which he issued. The return to work date had been changed from October 16, 2001, to November 1, 2001. The supervisor called the physician’s office to clarify the note. The physician’s assistant told the supervisor that October 16, 2001, was the only return to work date provided appellant.
The physician’s patient records for appellant corroborate his assistant’s statements. The records show that the physician issued a report with a return to work date of October 16, 2001, not November 1, 2001. On January 24, 2001, the representatives showed the physician a copy of the altered report. It was not in the patient file. He took the copy and wrote across it “This was not changed by me or my office.” He dated and signed it. He retained a copy for the patient file.
Appellant was vague regarding her medical contacts with her physician. She testified she had been unable to reach him for a couple of months. She indicated she was unable to attend the scheduled appointments following October 16, 2001. She claimed she did not mail or fax the report to her supervisor.
Appellant testified she is ready, able and willing to return to work; even though she considers herself permanently disabled. She said she can only return to work if certain accommodations are made. Appellant was unable to identify what accommodations must be made. Apparently, a physician has not examined her since October 16, 2001.
Government Code section 19996.2 provides an automatically separated employee with the right to file a 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 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 that 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 failed to prove by the preponderance of the evidence that she had a satisfactory reason for being off work and a satisfactory reason for not having leave. She was released to return to work by her doctor on October 16, 2001. She did not return. She called her supervisor and falsely stated her doctor was taking her off work until November 1, 2001. She did not provide adequate medical substantiation for the supervisor to approve her leave after October 15, 2001.
Given the nature of the evidence, no finding need be made as to her current medical status.
For the reasons set forth above, appellant should not be manditorily reinstated.
that the appeal for reinstatement after automatic resignation effective October 15, 2001, is denied.