DPA Case Number 01-P-0024 - Reinstatement After Automatic Resignation

DECISION

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on April 25, 2001; at 10:00 a.m. on May 31, 2001, at Sacramento, California; and at 9:30 a.m. on July 30, 2001, at Salinas, California.

Appellant was present and was represented by Brian K. Taylor, Staff Attorney, California State Employees Association (CSEA).

James D. Madison, Staff Counsel, represented the Department of Corrections (CDC), 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 January 2, 2001, for being absent without approved leave from January 3, 2001, through February 13, 2001.1 On March 2, 2001, CSEA filed a request (appeal) for reinstatement after automatic resignation. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.

The matter was originally scheduled for hearing on April 18, 2001, at Salinas, California. At the request of the parties, it was continued to April 25, 2001, and rescheduled for Sacramento, California.

II - CAUSE FOR APPEAL

Appellant filed a timely form appeal through her CSEA representative. The cause for appeal was not identified. At the hearing appellant claimed that she was medically unable to work and that she had a satisfactory excuse for failing to obtain approved leave. She also claimed she is currently ready, able and willing to return to work.

III - REASON FOR BEING ABSENT

Appellant worked all day on January 3 and January 4, 2001. She worked five hours on Friday, January 5 and all day on January 6, 2001. Her regular days off were January 7 and 8, 2001. Appellant failed to report to work on Tuesday, January 9, 2001.

Appellant went to see her family physician on January 9, 2001. She complained to her physician that she was stressed by her relationship with her immediate supervisor. She also complained that she had pain in her shoulder (clavicle) and that she was afraid her cancer had returned. Appellant had a history of depression and hyperthyroidism. The physician was treating her with two medications—one for hyperthyroidism and one for depression.

The physician determined that appellant was extremely depressed and increased both her medications. She provided appellant with an off-work order for the week of January 9 through January 13, 2001. She also referred her to an oncologist.

Appellant did not return to work the following week. According to her husband, she did not go out; she had swollen eyes; and she wasn’t doing the normal things. She lay on the couch, didn’t talk and didn’t want to be bothered. Appellant described herself as feeling displaced, upset, depressed, worried and crying— “a basket case.”

On January 29, 2001, she went back to her physician. The physician reexamined her. At that time according to the physician, appellant was “not much worse but not improved.” She diagnosed depression, hyperthyroidism and bruxism. She sent appellant to a dentist and to stress management classes. She adjusted both her medicine for depression and her thyroid medication; and she took her off work through March 30, 2001.

On February 8, 2001, appellant returned to her physician’s office and told her that she needed an off-work order for her employer for the period January 13, through January 29, 2001. Appellant requested the additional documentation to present to her employer who was questioning her failure to obtain medical substantiation for the in-between period (January 13, through January 29, 2001). The physician testified that she provided the medical substantiation retroactively based upon her determination that appellant’s condition had been continuing during that period, even though she had not reexamined appellant during that time.

On February 27, 2001, appellant visited her physician and was treated for bronchitis. At that time appellant had been to an oncologist; and she still felt she was dying. The physician referred her to a second oncologist, who saw her on March 13, 2001. On April 2, that oncologist called and advised that appellant did not have cancer.

On March 27, April 2, and May 14, 2001, the physician reexamined appellant. During the May 14, 2001, visit, the physician determined appellant’s depression had lifted significantly to allow her to return to work without accommodation. She determined that one of the primary stressors, which no longer affected her, was the fear that she had a recurrence of cancer.

The physician testified that in her medical opinion appellant was ill and unable to work from January 9, 2001 through March 30, 2001, due to depression and hyperthyroidism. It is concluded appellant was medically unable to work between January 9, 2001, and the date of her automatic resignation.

IV - REASON FOR NOT OBTAINING LEAVE

Respondent questioned the medical information and substantiation which it received from appellant and her doctor on January 9, 2001, and again on February 5, 2001. Respondent also questioned appellant’s failure to call her supervisor and obtain formal leave approval for herself. However, at all times, it appeared respondent’s personnel services staff were aware appellant was off work because of illness and under a physician’s care.

The Friday before appellant left work, she had a shouting match with her supervisor who had come to her workstation and requested her attendance at a counseling session that afternoon. Appellant felt that her supervisor had been on a campaign to harass and discredit her with staff because of prior grievance(s) she had filed against correctional officers. She also blamed her supervisor for sending her an envelope containing feces the prior week. Irrespective of the correctness of her perceptions, the encounter sent her “over the edge.”

At the time of the Friday incident appellant was under the care of the physician for long-standing depression and was on medication for that depression. She also was on medication for her thyroid, which if not properly adjusted could impact her depression. On the Monday following the incident, she tried to see her physician but was unable to get an appointment until the next day (January 9, 2001).

Appellant testified that during her January 9, 2001, visit with her physician, she was given a note excusing her from work from January 9 through January 13, 2001. She faxed the note to the Education Department at work on either January 9 or 10, 2001. Also on January 9, 2001, she called the Education Department and reported she would not be to work that week.

Appellant did not want to talk with her direct supervisor given the circumstances. Just being in the same room with him made her upset. She believed that she could present medical substantiation for an off-work period in the same manner in which she had done so in the past. As a result, appellant was comfortable that the call and the fax were acceptable to place her in off-work status.

Appellant expected to return to work the following week, but her depression was such that she could not. She testified, “I just rolled into a fetal position and wasn’t able to deal with anything.” She did manage to call the facility and leave another message that she was unable to work. She also left a third message during the following week.

On January 22, 2001, unbeknownst to appellant, respondent’s personnel office mailed her an options letter regarding her absence. The original letter, which requested verification of her sick leave, did not reach appellant because it was mailed to her work address in Soledad and appellant had gone home to Escalon when she became ill. The personnel office processed a change of address for appellant on January 23, 2001, but it was unclear when the letter actually reached appellant at the corrected address.

Also, on January 22, 2001, appellant’s supervisor called her home. When she heard his voice, appellant got upset and reacted by hanging up.2 The supervisor sent appellant a letter on January 23, 2001, directing her to report back to work as soon as possible with a doctor’s verification for her full period of absence. The letter referenced the three voice mails appellant had left—“one each week, indicating you were sick.” In the letter appellant’s supervisor directed her to call him and personally advise him of her health situation and her expected return to work date. He also stated that she was directed to report back to work as soon as possible and that a “doctor’s verification for the full period of your absence will be required upon . . . [her] return.” The letter advised her that she “must meet with [name omitted] (the second-line supervisor) SCEP to discuss her work performance and behavior.” The letter did not indicate why appellant’s return to work was preconditioned by a session with her second-line supervisor. For a person struggling with depression, the letter was clearly intimidating. Appellant did not call her supervisor back and would not speak with the second-line supervisor.

However, appellant went back to her physician on January 29, 2001, and attempted to comply with the requests for medical substantiation. She told the physician she had not returned to work and asked to be placed off work two months. The physician provided her with a note to that effect because of her determination that appellant was ill and needed her medications adjusted. Appellant testified she faxed the note to respondent’s personnel office on February 5, 2001, along with a request that her check for the prior month be released. A copy of that fax showing the fax date as February 5, 2001, was placed in evidence.

Appellant went to her physician again on February 8, 2001 and asked for medical substantiation for the retroactive period covering January 13, 2001, to March 29, 2001, for her employer, as indicated above. The physician provided the substantiation requested. Appellant also left NDI forms with her physician which, were intended to excuse her from work. (The original set of NDI forms were lost by the physician’s office. The physician completed a second set in March 2001, excusing appellant from work for the entire period at issue.)

Appellant’s counsel placed in evidence past examples of medical substantiation, which were accepted without question by respondent when appellant was ill and off work. It is concluded that there was no convincing evidence that appellant was intentionally failing to comply with reporting requirements. In fact, given the nature of her illness and her emotional breakdown, appellant made significant efforts to keep respondent apprised of her status.

V - READY, ABLE AND WILLING

The physician saw appellant on March 27, April 2, and May 14, 2001. She testified that as a result of her examination and observations, she concluded that appellant’s depression had been reduced and appellant can return to work. She noted that appellant’s thyroid medication as well as her relief that she was not dying of cancer likely reduced her stress and depression. She stated appellant’s cancer work up apparently “put things in perspective.”

Respondent introduced evidence that CDC requires appellant to take and be cleared on a tuberculosis (TB) test before she can return to work. Appellant did not dispute that requirement.

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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 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 proved by the preponderance of the evidence that she had a satisfactory reason for being absent from work from January 9 through February 13, 2001. She was suffering from depression and hyperthyroidism exacerbated by her fear of a recurrence of cancer, her stressful working environment and an imbalance of her medication. Her inability to work was proved by the testimony of her family physician, her own testimony and that of her husband, all of whom observed symptoms of depression which made appellant unable to function normally at work and at home.

Appellant also proved by the preponderance of the evidence that she made reasonable efforts to comply with the reporting requirements of SVSP in advising the personnel office of her illness and her inability to work. Those efforts included providing medical substantiation by facsimile on two occasions, calling weekly to advise the facility she was unable to work and seeking NDI benefits for her time off. Given the nature of appellant’s illness, her emotional breakdown, and her perception that her supervisor was harassing her, it was not unreasonable that she communicated with personnel instead of one-on-one with the very individual she perceived put her over the edge. Accordingly, while the supervisor may in no way be culpable, appellant’s conduct was understandable and related significantly to her illness. Accordingly, she had a satisfactory explanation for not having obtained approved leave.

Finally, the physician and appellant testified that she is ready, able, and willing to return to work. However, appellant did not present any evidence that she had completed and been cleared on her annual TB test. Accordingly, appellant should be returned to work, without back pay, upon proper substantiation that she has taken and cleared the test, in accordance with CDC requirements. Appellant should be given one month to obtain said substantiation. In the event that she does not obtain clearance within one month, it may be presumed she is no longer ready, able, and willing to return.

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WHEREFORE IT IS DETERMINED

that the appeal for reinstatement after automatic resignation, effective January 2, 2001, is granted. Appellant should be reinstated no later than one month following the issuance of the decision in this matter, subject to presentation of a TB clearance, in accordance with CDC requirements.

FOOTNOTES

1. Appellant’s actual period of leave without pay commenced June 9, 2001.

2. She also refused to talk with her second-line supervisor when he called. She told him she was sick and could not talk.