Final Non-Precedential Decision Adopted: February 17, 2006

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on November 16, 2005, and January 12, and 13, 2006, at Riverside, California.

Appellant, was present and was represented by Gerald James, Labor Relations Counsel, Professional Engineers in California Government (PECG).

Barrett W. McInerney, Labor Relations Counsel, DPA represented the Public Utilities Commission (PUC), respondent.

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

By letter dated December 15, 2005, respondent notified appellant he would be automatically resigned effective December 28, 2004, for being absent without approved leave from November 2, 2004 through December 15, 2004.1 On January 3, 2005, PECG filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf. The appeal complies with the procedural requirements of Government Code section 19996.2.

The matter was originally set for hearing on April 12, 2005. It was continued by agreement between the parties. The case was rescheduled for June 16, 2005. The hearing on that date was continued because the appellant was unavailable. The case was rescheduled for July 11, 2005. It was once again continued because appellant was ill on that date. The matter was reset for November 16, 2005. The first day of hearing was held on November 16, 2005. The second and third days of hearing were held on January 12 and 13, 2006 at the agreement of the parties.

Appellant argued he had a valid reason for being absent because he was “stressed” and unable to work. He argued he had a valid reason for not obtaining leave because respondent inappropriately failed to grant him leave even though he complied with all respondent’s instructions for obtaining leave. He also argued he is ready, able, and willing to return to work.

Appellant worked for the same supervisor for 15 years. In April 2004, appellant’s supervisor changed. The new supervisor implemented changes. He implemented new procedures for settling rate cases. He no longer allowed the Engineers to participate in the utility rate setting settlements. The new supervisor began monitoring employees’ work hours. The supervisor believed appellant was not complying with his assigned work hours. He met with him on or about July 8 to reinforce appellant’s need for compliance. On or about July 30, a memo was issued to appellant addressing his work attendance and reiterating his supervisor’s expectations.

Appellant disliked his new supervisor and the new procedures. He believed his new supervisor lacked supervisory experience and the ratemaking or technical experience necessary to manage him and the other staff involved in ratemaking. Appellant also believed his new supervisor lied to him and failed to adequately protect California utility ratepayers. Appellant complained to the ORA Deputy Director that his new supervisor created a hostile work environment. He complained on at least two occasions prior to October. Appellant felt respondent failed to appropriately react to his complaints. Appellant felt he could not do his job professionally under the new supervisor.

Appellant began missing work intermittently in July. He was off work on authorized sick leave from October 1 through October 31. He attempted to return to work on November 1. He worked for six hours that day before leaving because he “felt uncomfortable.”

Appellant argued he was medically unable to work from November 2 through December 15, because his supervisor created a hostile work environment which caused him to be “stressed”. In support of his contention he was too ill to report to work at the PUC, the appellant presented two medical notes from a physician. The first was dated November 2, 2004 and read in relevant part:

“He [Appellant] has come into the office today for a follow-up appointment for the diagnosis of stress disorder NOS. His overall well-being has improved with the time off of work this past month. When he went into the workplace one day, he found all of his symptoms of anxiety return. We have decided to keep him off of work for ongoing care. Please excuse from work for the following dates: 11/2/04 to 1/10/05.”

The second note from the physician was dated December 8. It read in relevant part:

“We have concluded that it [stress disorder] is related to his work environment as there are no other stressors in his life. While at work he experiences anxiety and this affects his ability to concentrate or organize his thoughts. This directly affects his duties at work which include: performing engineering reports and presenting these results at public hearings. His symptoms escalate even as he drives into work or speaks to coworkers on the phone. Physically removing him from work has improved his symptoms.”

According to appellant, the physician did not prescribe medication and did not refer him to a psychiatrist or counselor. The physician did not administer any written examination which would aid in the diagnosis of appellant’s condition. According to appellant, the physician’s diagnosis was based solely on the symptoms appellant conveyed to him.

Appellant did not tell the physician he was also running real estate and “construction” businesses. Appellant had been involved in such businesses for approximately 19 years. Appellant’s father worked with him. Beginning in approximately August, appellant’s father’s health began to decline and he spent less time working in the real estate business. Appellant’s father was the only other licensed real estate agent in the business.

Respondent disputed appellant’s argument that he was too ill to work. It presented evidence appellant worked at his real estate business during the time he was charged with being absent without leave. During a conversation with a private detective who was posing as a customer, appellant told the detective his firm sold approximately 1,000 homes per month and that there were six employees. Appellant argued his involvement in his two businesses had no impact on his being absent from work at the PUC.

In further support of its contention appellant was malingering and not medically incapacitated, respondent presented testimony from a psychologist and a December 13 letter from the physician.

The psychologist testified she reviewed several medical documents from the physician regarding appellant’s condition including the November 2 and December 8 notes outlined above. The psychologist reviewed these documents in preparation for a fitness for duty examination for appellant that was scheduled to be performed on December 9. When appellant failed to appear for the examination the psychologist concluded the medical information the physician provided did not give a valid diagnosis of a medically recognized condition; the medical information did not provide a treatment plan; and, the information was overall insufficient to justify appellant’s absence. The psychologist notified respondent of her findings on December 10.

The physician responded to the psychologist’s diagnosis in a December 13 letter. The letter states in pertinent part:

“The course of treatment has consisted of regular visits with me. He has refused medication for anxiety and referral to psychologist. He had expressed interest in taking time away from work to re-evaluate his life and career. He did not mention operating two businesses. I am saddened to hear of this news and it makes me doubt his reporting of symptoms to me. I cannot explain the differences your note suggests on how [appellant] spends his time except by agreeing with [the psychologist].”

Neither party called the physician to testify.

Appellant argued he was inappropriately denied leave because he provided all the information required by respondent to grant him leave and he followed the procedure to obtain leave that had been in place under his previous supervisor.

Under his previous supervisor, appellant electronically mailed his supervisor if he was not going to be at work. If additional information was needed, the supervisor would call the appellant. Doctors’ notes verifying absences could be submitted anytime prior to the end of the payroll period.

Appellant’s new supervisor changed this procedure. Beginning in at least October 2004, respondent began requesting doctor’s notes with more specific information than appellant had provided in the past. It began implementing specific deadlines by which the medical information was to be provided.

On November 4, respondent notified appellant he needed to provide a doctor’s note certifying he was able to perform the full scope of his work responsibilities and a second doctor’s note verifying his medical inability to work for all absences beginning November 2. The information was to be provided no later than November 8. Appellant did not provide any additional medical information on or before November 8.

On November 15, his supervisor issued a memo reminding appellant of the information that was required in each of the doctor’s notes. The supervisor also informed appellant his pay would be docked because he had not submitted the required information. The appellant electronically mailed the physician’s November 2 note to his supervisor on November 29.

On or about December 2, appellant’s supervisor notified him by memorandum that the information provided in the physician’s November 2 note was inadequate to support his continued absence and it did not address whether or not appellant could perform the full scope of duties and responsibilities of his position. Appellant was ordered to provide a more definitive medical information not later than December 8.

On or about December 6, appellant was ordered by letter to attend a fitness for duty examination with the psychologist on December 9.

On or about December 8, appellant submitted the physician’s December 8 letter to his supervisor. He did not attend the December 9 fitness for duty examination.

Respondent issued appellant’s notice of automatic resignation on December 15.

Appellant maintained he was ready, able, and willing to return to work. He testified he would “take a chance” and return to work under his new supervisor. He maintained that the rest he had gotten during his time away from PUC, his vacations, and his walking exercise regiment make it possible for him to now deal with his supervisor.

In support of his argument, appellant submitted a physician’s note from a second physician indicating appellant could perform the job duties of “preparing engineering reports and presenting them at public hearings.” The second physician was not called to testify.

 

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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 he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 had a valid excuse for his absence and failure to obtain leave and that he is currently ready, able, and willing to return to work.

Appellant failed to prove he had a valid reason for being absent. Appellant’s uncorroborated statements regarding his medical inability to work are an insufficient basis on which to find he had a valid reason for absence. His dislike and distrust of his new supervisor and the change in procedures may have indeed been unsettling and may have caused appellant anxiety and discomfort, but there was no evidence that these feelings rose to the level of a medical disorder that precluded appellant from reporting to work. The November 2, December 8, and December 13, hearsay evidence from the physician when considered in its totality does not corroborate appellant’s testimony.2 The psychologist, the only medical professional called to testify, substantiated the lack of evidence supporting a valid reason for appellant’s absence.

Appellant also failed to prove he had a valid reason for not obtaining leave. He knew his supervisor was seeking specific medical information and he knew the previous notes he submitted from the physician were insufficient. He knew his supervisor had arranged for a December 9 medical examination to obtain more specific information than it received from the physician.3 Although appellant submitted a note from his doctor on December 8 as he was instructed, he did not attend the December 9 evaluation. He did not contact his supervisor to inform him he was unable to attend the appointment or to see if the appointment was unnecessary based on the information supplied to respondent on December 8. Respondent never notified appellant he did not have to attend the December 9 evaluation. Appellant simply assumed the physician’s December 8 note would be sufficient and made his own decision not to attend the medical examination which would have answered the questions his supervisor had regarding his medical inability to work.

Appellant also failed to prove he was ready, able, and willing to return to work. The medical information from the second physician only indicates appellant can perform certain functions and does not address appellant’s ability to work with his new supervisor or perform the full duties of his position. Appellant’s statement that he believes he can now cope with his supervisor appears disingenuous considering appellant’s dislike and distrust of his supervisor, the new procedures, and the previous impact of the alleged hostile work environment. There was no evidence of any change in appellant’s previous working condition.

 

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that the appeal for reinstatement after automatic resignation from the position of Utilities Engineer effective December 28, 2004, is denied.

 

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1. All dates are 2004 unless otherwise indicated.

2. Both representatives objected to the documents authored by Lew and introduced by the opposing party. Government Code section 11513 (d) states in relevant 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.”

3. Government Code section 19253.5 gives the State employer the authority to send an employee for a fitness for duty examination.