Final Non-Precedential Decision Adopted: March 18, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 1, 2005, at Sacramento, California.

Appellant, was present and represented herself.

Tina Dunlap, Senior Counsel, represented the Department of Managed Health Care (DMHC), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

On December 9, 2004, respondent notified appellant she would be automatically resigned effective close of business December 17, 2004, for being absent without approved leave from November 22, 2004 through December 8, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on December 21, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant claimed she had a valid reason for being absent because respondent failed to grant her a “reasonable accommodation” as outlined by her doctor. She claimed she had a valid reason for not obtaining leave because respondent prevented her from coming to work by not providing the reasonable accommodation. She further alleged she is ready, able, and willing to come to work if she is granted a reasonable accommodation.

Appellant alleged she was assaulted by a co-worker on January 23, 2003. She alleged the co-worker grabbed her hand and twisted her wrist in order to take a badge out of her hand. There were no witnesses to the incident. Shortly after the incident, appellant remarked to DMHC’s Human Resource Manager, something to the effect that the alleged assailant, “Didn’t know judo.” When the human resource manager asked appellant what she meant, she relied something like, “You know, judo know if I have a gun, judo know if I have a knife.” Appellant testified she was joking when she made these remarks.

Appellant filed a report with the California Highway Patrol (CHP). The CHP conducted an investigation but could not confirm appellant’s allegations. The CHP referred the case to the Sacramento District Attorney, but the District Attorney did not pursue the case. Respondent conducted its own internal investigation. Respondent’s investigation did not confirm appellant’s allegations. Respondent filed a workers’ compensation claim on appellant’s behalf. After an investigation, appellant’s workers’ compensation claim was denied.

Appellant sought medical treatment for her injury. She began missing work on February 25, 2003. This was one day after she was served with an adverse action that reduced her salary 5% for six months.

Appellant’s doctors diagnosed her with post traumatic stress syndrome as a result of the alleged January 23, 2003 assault. At some time prior to September 29, 2003, appellant provided respondent with medical information stating she was unable to perform the duties of her current position as an Office Technician (Typing) until January 2, 2004. On or about October 15, 2003, appellant provided respondent with a “Medical Certification of Health Care Provider” that stated she would be able to work as of December 2, 2003, but that she could not “return to previous workplace.” The doctor recommended she “Transfer to other [sic] office or state agency ... [where] she does not need to work with employee who assaulted her.”

On or about December 11, 2003, respondent notified appellant it was applying for disability retirement on her behalf. It further notified her she was being placed on involuntary leave pending a decision regarding her disability retirement. The California Public Employees Retirement System (PERS) denied appellant’s application for retirement. Respondent appealed PERS’ decision. On or about October 28, 2004, respondent withdrew its appeal.

Respondent continued appellant on involuntary leave and paid her a temporary disability allowance through November 30, 2004. At some point in this process, appellant initiated a civil suit against respondent regarding at least some of the issues involving appellant’s work status.

On or about November 15, 2004, respondent notified appellant she was required to return to work on November 22, 2004. She was ordered to report to DMHC’s Folsom Boulevard Office. She was also notified that she would be considered absent without leave (AWOL) if she failed to report to work before December 1, 2004.

Appellant contacted the human resource manager on November 22, 2004. Appellant informed the human resource manager she did not consider the job at the Folsom Blvd. Office a “bona fide” job offer because she could be potentially exposed to the co-worker who allegedly assaulted her and the job therefore did not meet her doctor’s recommendation for her return to work. The human resource manager instructed appellant to contact her new supervisor. Appellant testified she called the supervisor and left a message for him saying she would not be able to return to work because the job did not comply with her return to work request. It is unclear if the supervisor returned appellant’s call. The human resource manager called appellant on November 23, 2004 and reiterated that appellant was to return to work. He followed this call with a letter repeating this order.

On November 29, 2004, appellant left messages for the human resource manager and her new supervisor saying that her brother passed away. On December 2, 2004, the human resource manager notified appellant by letter that she was approved for three days of bereavement leave if she provided substantiation. He also informed appellant if she did not report to work by December 9, 2004, she would be considered AWOL as of November 22, 2004.

Appellant did not return to work and she did not provide substantiation of her need for bereavement leave.

Appellant is charged with being absent without leave from November 22, 2004 through December 8, 2004. She argued she was not at work because she relied on her doctor’s opinion that she was unable to work unless she was placed in a position in which she would have no contact with her accused assailant. There were no such positions at the DMHC because the alleged wrongdoer traveled from facility to facility.

Pursuant to Government Code section 19253.5 (i), appellant was placed on involuntary leave and paid a temporary disability allowance through November 30, 2004 while respondent awaited the final determination on appellant’s disability retirement application. Respondent cannot place appellant on involuntary leave pending resolution of a disability retirement it initiated, pay appellant, and then subsequently charge her with being absent without leave. Appellant had a valid reason for being absent from November 22, 2004 through November 30, 2004.

In support of appellant’s argument that she was precluded from working without “reasonable accommodation” from December 1 through December 8, 2004, appellant submitted a February 28, 2005 memorandum provided by her treating physician. The document stated that appellant “should not be required to return to a work environment where she would be exposed to continued contact with her alleged assailant (emphasis added).” The document then referred to an accommodation whereby appellant would be “returned to a work environment in which she has absolutely no possibility of contact with her alleged assailant (emphasis added).” The document does not state whether or not appellant has a disability. It refers to an independent psychiatric evaluation by a second physician whose report was not provided. The document did not address what information the physician reviewed that caused him to arrive at his recommendation. The February 28, 2005 medical document was ambiguous and raised potentially more questions than it answered. No physician or other health care provider was called to testify. Respondent objected to the medical documents as hearsay pursuant to Government Code section 11513. Section 11513 (d) states in pertinent part: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions....”

Appellant’s testimony that she was unable to return to work was based on her doctor’s recommendation. Without additional medical clarification and testimony of the physician making this recommendation, appellant’s claim that she was unable to accept the offered employment and return to work from December 1 through December 8, 2004 cannot be substantiated and is an inadequate basis on which to find appellant was unable to return to work without accommodation. Appellant failed to prove she had a valid reason for being absent from December 1 through December 8, 2004.

Appellant argued she did not need to obtain leave because although she was ready to work, she was precluded from working because respondent did not provide her a position consistent with her doctor’s recommendation.

Respondent did grant appellant leave until November 30, 2004. Therefore, the period at issue is December 1 through December 8, 2004.

Respondent was aware on and after December 1, 2004 that appellant did not intend to return to work in a position that did not comply with her doctor’s recommendation, i.e. that she be placed in a position where she would not be in contact with her alleged assailant. Respondent knew appellant did not regard the position in the Folsom Blvd. Office as a position that met this recommendation. There was no dispute that respondent did not have a position within the department that arguably met appellant’s accommodation requirement. Appellant contended, however, that respondent must place her on loan to a different department. Respondent did not concur with appellant’s assessment.

Both parties were fully aware that there was a controversy over appellant’s request for a “reasonable accommodation” and respondent’s legal responsibility to provide the accommodation. A civil dispute regarding at least some of the issues was pending. It is this dispute between the parties that prevented appellant from obtaining leave in this case.

Appellant’s leave credits were exhausted. She chose to actively challenge respondent’s decision not to provide an accommodation rather than request a leave which would not solve the controversy at issue. A leave may have potentially prolonged appellant’s absence without pay or the proper resolution of the issue. Appellant had no reason to believe respondent’s position regarding her reasonable accommodation request would change. Therefore, appellant had a valid reason for not obtaining leave.

However, it must be noted, that the finding that appellant had a valid reason for not obtaining leave does not automatically validate the request for accommodation, validate appellant’s absence in this case, or imply liability or wrongdoing on the part of respondent. Indeed, Government Code section 19253.5(i)(3) requires the appointing power to reinstate an employee to her position if a disability retirement is denied.

Appellant maintained she is ready to return to work and able and willing to return to work only if she is reassigned to a position where she will not be exposed to her alleged assailant. She testified that DMHC has no offices where the alleged assailant would not appear because his job duties require contact throughout the department. In response to her request for reasonable accommodation, appellant wants DMHC to loan her to another department. Therefore, appellant is not ready, able, or willing to return to work at the position she held at the time of her automatic resignation.

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file an 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, (Coleman), 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.

Therefore, DPA will make no determination regarding whether respondent is required and/or has the legal authority to accommodate appellant by loaning her to another department. These issues are beyond the scope envisioned in Government Code section 19996.2 and are specifically addressed under other more specific procedures and statutes which provide greater employee due process protections. Disputes regarding the interpretation and application of Government Code section 19253.5 are under the jurisdiction of the State Personnel Board.

Furthermore, irrespective of any party’s legal responsibility or rights, DPA lacks jurisdiction to order DMHC to provide appellant with a work accommodation. Resolution of reasonable accommodation disputes are potentially also under the purview of the State Personnel Board, the Department of Fair Employment and Housing, and/or the State and Federal courts. DPA is not the appropriate forum for resolution of such disputes.

To the extent DPA has jurisdiction in this case, the appellant has the burden of proof. She must prove by a preponderance of the evidence that she had a valid excuse for her absence and failure to obtain leave and that she is currently ready, able and willing to return to work to resume the discharge of the duties of her position. Appellant failed to meet her burden of proof in this proceeding regarding a satisfactory reason for being absent from December 1 through December 8, 2004. She also is not ready, able and willing to return to the duties of her position at DMHC.

 

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that the appeal for reinstatement after automatic resignation from the position of Office Technician (Typing) effective close of business December 17, 2004, is denied.