DPA Case Number 05-D-0003 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: October 4, 2005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 August 24, 2005 and via telephone at 1:30 p.m. on September 27, 2005 at Sacramento, California.

Appellant was present at the August 24, 2005 hearing and at all times was represented by Melinda L. Williams, Attorney, Service Employees International Union (SEIU).

Timothy Steele, Employee Relations Officer, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.

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

On December 14, 2004, respondent notified appellant she was being automatically resigned for being absent without approved leave from November 30, 2004 through December 13, 2004. SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on December 23, 2004.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued the automatic resignation statute, Government Code section 19996.2, was misapplied. She alleged respondent “wanted to get rid of her” and improperly invoked the statute to accomplish this. She further argued respondent knew why appellant was absent and that it put impediments in place so that she could not come to work. Appellant also contended she communicated with respondent and this was an adequate reason to have secured leave.

To the extent that DPA has jurisdiction to decide issues pursuant to Government Code section 19996.2, the appellant argued she had a valid reason for being absent because her doctor took her off work. She contended she was physically incapable of performing her duties and respondent would not accommodate her. She also argued she had a valid reason for not obtaining leave because although she contacted respondent and respondent knew why she was absent, it would not approve leave. She also argued she was ready, able, and willing to return to work.

Appellant was hired at CDC under the Limited Examination and Appointment Program (LEAP).2 She suffered head trauma in an automobile accident which left her with a disability. Appellant had a shoulder injury in 2000 and was assaulted in 2003. As a result, she had work restrictions that prohibited her from lifting more than five pounds and repetitively using her arm. Appellant testified she left work on November 24 because she had severe pain in her right shoulder that radiated into her neck and lower back. When she left work, her supervisor told her not to return to work until she saw her doctor. Appellant told the supervisor she had a doctor’s appointment on November 29.

Appellant saw her Doctor, on November 29. She told her doctor she did not believe her work restrictions were being properly applied because she was being required to repetitively use her arm and to lift items more than five pounds. Appellant told her doctor these actions caused her pain. Her doctor advised appellant she would have to find other employment if her work required her to perform duties that caused her pain.

In her doctor’s November 29 “Primary Treating Physician’s Progress Report,” the doctor noted appellant was apprehensive to use her arm away from her body in certain positions, but that “it is important that she continue to try to use the arm as much as possible for normal daily activities.” He also opined that if the restrictions that had been imposed were met, she could continue to work. He also noted that he saw no evidence of any instability during the examination.

The doctor did not specifically take appellant off work for any definitive period of time. However, appellant did not return to work based on her personal belief she was not and would not be accommodated. She consistently maintained that respondent refused to accommodate both the restrictions that were in place prior to November 29 and those which were subsequently added. Appellant testified that after seeing her Doctor on November 29 she believed she needed to retire.

Appellant argued she should have been granted leave because she maintained contact with her employer and her employer knew she was not at work because her doctor prevented her from returning to work at her previous job in the mailroom.

It was the usual and customary practice at MCSP that employees who had not previously received approved leave based on a physician’s note must call their supervisor each day of their absence. Appellant received approved leave for November 29 to attend a doctor’s appointment with her doctor. Appellant called the supervisor after her appointment. She told the supervisor that her doctor said that if she came back to work and she was required to do the duties she was currently assigned, she was to be sent home. The supervisor asked appellant for a doctor’s note requiring her not to perform her current duties and listing new restrictions. Appellant told the supervisor that her doctor was dictating such information and it would be sent to the Return to Work (RTW) Coordinator. Appellant testified the supervisor told her they would have to find something for her to do.

Although appellant did not report to work after November 29, she called the supervisor on only one occasion between November 30 and December 13. Appellant testified she called the supervisor on the afternoon of December 1. Telephone records submitted by appellant do not substantiate that appellant placed a December 1 telephone call to MCSP.

Appellant also testified she came to MCSP on December 1. She picked up her paycheck and she testified she went to the mailroom to pick up her personal items. She testified she gave the supervisor a copy of a generic doctor’s note from her doctor. The note simply stated appellant kept her appointment on November 29. The supervisor contests that appellant contacted her on December 1. The supervisor’s written chronological history of events concerning appellant indicates appellant did not call the supervisor on December 1 and that appellant did not come to the institution until December 2. Appellant’s telephone records substantiate the Supervisor’s testimony regarding a telephone call from appellant on December 2 rather than December 1.

Appellant also testified she gave her timekeeper in MCSP’s Personnel Section, a copy of the “generic” doctor’s note on December 1.3 Appellant testified inconsistently that she also asked the timekeeper about her leave balances on either December 1 or December 5 and that she asked the timekeeper to use such leave credits to cover her absence. Appellant testified she told the timekeeper her doctor told her to retire or find a new job. The timekeeper was not called to testify.

Appellant testified she returned to MCSP on December 5. On this date she testified she met with Institutional Personnel Officer and Acting RTW Coordinator to get help filling out disability retirement papers. Appellant testified she told the Acting RTW Coordinator the doctor told her MCSP was not accommodating her restrictions.

Appellant testified she called the RTW Coordinator on December 7 to check on the status of her retirement papers. The RTW Coordinator testimony contradicts appellant’s testimony. The RTW Coordinator did not recall speaking with appellant on December 7 or discussing disability retirement with appellant until sometime after appellant had been automatically resigned. Appellant’s telephone records do not substantiate that appellant placed a December 7 call to MCSP.

The RTW Coordinator did record a December 3 telephone call with appellant in which she discussed a “new” doctor’s note regarding work restrictions that were to be in effect at that time. The doctor’s note providing appellant’s work restrictions after November 29 was not introduced at hearing. It apparently added restrictions to those that were in effect on November 29. How and when respondent received this information is unknown. The RTW Coordinator told appellant on December 3 that MCSP could accommodate the restrictions in the “new” doctor’s note and that “she was off work on her own time.” In response, appellant told the RTW Coordinator the doctor was sending in still additional restrictions. Appellant did not deny speaking with the RTW Coordinator on December 3.

On December 9, appellant received a December 7 “Warning Letter” informing her she had not made any contact with her supervisor or the RTW Coordinator regarding her absence and that respondent had not received any documentation from her doctor excusing her from work. The letter warned appellant that if she did not resign, return to work, or obtain approval for her absences, she would be automatically resigned. In response to the letter, appellant testified she attempted to call MCSP’s Employee Relations Officer (ERO). She testified she left him a message on one occasion but he never returned her call. She testified she kept trying to call the ERO, but she did not attempt to call her supervisor or the RTW Coordinator. The ERO and his assistant who retrieved messages for him when he was unavailable deny ever receiving a message from appellant. Appellant’s telephone records do not indicate she called MCSP on any day between and including December 9 through December 13.

Appellant also testified she arranged to get a copy of the doctor’s report of her November 29 visit. She further testified she provided this report to MCSP, but she could not recall on what date this occurred.

The RTW Coordinator testified she returned a telephone call to appellant on December 13. During that conversation, appellant told the RTW Coordinator her doctor advised her not to return to work. When the RTW Coordinator told appellant she didn’t have a note saying appellant could not work, appellant told the RTW Coordinator the doctor would not put that statement in a note. The RTW Coordinator again told appellant to return to work. The RTW Coordinator told appellant she would be separated if she did not return to work. In response, appellant told the RTW Coordinator she was going to call her doctor and her attorney. Appellant was notified she was being automatically resigned by letter dated December 13.

Appellant testified at hearing that she could return to work if respondent honored the work restrictions she had at the time she was automatically resigned.

 

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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, 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 makes no finding regarding appellant’s argument the automatic resignation statute was misapplied.

Appellant has the burden of proof in these matters and 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 able to return to work.

Appellant failed to prove she had a valid reason for being absent. Appellant failed to produce any doctor’s note verifying her need to be absent from work. Appellant’s unsubstantiated statements that she could not perform the duties assigned to her immediately preceding her absence, her unsubstantiated statements that the doctor excused her from work based on respondent’s alleged failure to accommodate restrictions that were never presented, and her failure to report to work after she was informed respondent would accommodate the work restrictions that were presented do not support appellant’s absence.

Appellant also failed to prove she had a valid reason for not obtaining leave. Although appellant assured respondent she would be providing a note validating her absence and providing even additional work restrictions over those respondent indicated it would accommodate on December 3, she failed to produce such information. Because she did not provide a doctor’s note excusing her absence, she was required to telephone her supervisor each day of her absence. Appellant failed to follow this standard procedure. By her own admission, she did not speak to her supervisor after December 1. Appellant did not have a valid reason for not obtaining leave.

Appellant also failed to prove she was ready, able, and willing to return to work. Although appellant testified she was willing to return to work to perform the duties she was assigned on November 29, her testimony is suspect. She testified such duties were causing her pain and that her doctor told her she could not perform such duties. She failed to report to work even though she was told any restrictions in place on December 3 could be accommodated. She had begun inquiring into disability retirement prior to November 29. After November 29, she reiterated to various individuals that she had to disability retire. The evidence shows appellant is more interested in obtaining a disability retirement than in returning to work.

DPA makes no determination or finding regarding the appropriateness of such a disability retirement or reasonable accommodation.

 

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that the appeal for reinstatement after automatic resignation from the position of Office Assistant (General) effective close of business November 29, 2005 is denied.

 

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1. All dates are 2004 unless otherwise indicated.

2. The LEAP is an alternate examination and appointment process designed to facilitate the recruitment and hiring of persons with disabilities.

3. Appellant could not recall the timekeeper’s last name.