DPA Case Number 06-T-0038 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: July 10, 2006

By: David A. Gilb, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 28, 2006, at Sacramento, California.

Appellant was present and represented himself.

Joe Cello, Employee Relations Office (ERO), 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 April 21, 2006, respondent sent the appellant a document dated April 18, 2006 titled “NOTICE OF AUTOMATIC RESIGNATION (AWOL SEPARATION).” This document notified the appellant he was being automatically resigned for being absent without approved leave from March 23 through April 18, 2006.1 It also notified the appellant he had five (5) days from the date of service of the letter to respond to his appointing power and fifteen days to file an appeal with DPA. The notice did not include an effective date on which respondent would implement the automatic resignation. The notice did not indicate whether or not it was a “warning” or a “final notice.”

The appellant filed a written response with his supervisor, the Warden, and the ERO on or about April 24. He stated his health condition remained unchanged from when he last provided respondent information on March 9. The appellant filed a request (appeal) for reinstatement after automatic resignation with DPA on May 2.

Appellant never received a specific reply to his April 24 response. However, on or about May 3, the Return to Work (RTW) Coordinator directed the appellant to either return to work; obtain approval for his absence by May 22; or provide current medical documentation verifying his inability to work. She warned him that failure to provide the information would result in his being automatically resigned. When the appellant did not provide the requested medical documentation, the respondent sent a “FINAL NOTICE OF AUTOMATIC RESIGNATION/ ABSENT WITHOUT LEAVE (AWOL) SEPERATION” [sic] on or about May 24, 2006. The notice advised the appellant he was “hereby separated from employment. . . .”

Although appellant appealed before the May 24, “Final Notice of Automatic Resignation...” he followed the instructions provided to him by respondent in the April 18 Notice and he filed within the requisite timeframe. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued he had a valid reason for being absent because his job was hazardous to his health. He argued he had a valid reason for not obtaining leave because respondent unlawfully refused to grant him leave and unlawfully refused to provide him with a reasonable accommodation. He also contended he cannot return to work at San Quentin because the commute from his home in Sacramento to CSP-SQ was too stressful.

Appellant further argued the automatic resignation was improperly invoked because it was motivated by his filing an industrial injury claim with another employer in 2004.

The appellant testified he was unable to work from March 1 through April 18 because his job was hazardous to his health. Appellant sustained an industrial injury in 2004 while he worked at the U. S. Postal Service. He testified his medical problems stem from this industrial injury.

The appellant saw his physician on March 1. At that time, the physician gave appellant work restrictions which included limits on lifting and required only occasional bending, squatting, kneeling, and climbing. The doctor did not excuse appellant from work; and, he did not indicate appellant could not perform his job as an Office Assistant in the medical records area at CSP-SQ. The physician also did not indicate the duration of appellant’s restrictions.

The appellant provided the March 1 visit verification (doctor’s note) to respondent on or about March 9. He included a March 7 letter with the note. In the letter, the appellant reported experiencing medical problems that were not address in the March 1 doctor’s note. The appellant claimed he experienced pain from the 2004 industrial injury that made him drowsy and dizzy. As a result of the pain, he reported he had to constantly take medication. He testified the doctor told him not to take the medication constantly because it would affect his internal organs. Appellant testified that standing at work and doing his job increased the pain, required him to constantly take the medication, and therefore increased the likelihood of damage to his internal organs. In the March 7 letter, the appellant wrote in relevant part: “Also, I realize my injury is getting worse by working under restrictions that are written by various doctors. I see potential health hazard at job [sic] by working under those restrictions and by taking medications they prescribed for pain.”

In the March 7 letter, the appellant also placed additional restrictions on his ability to work that were not addressed in the March 1 doctor’s note. Appellant decided he could not commute from his home in Sacramento to his work at San Quentin because it was a “strain” and exacerbated his condition.

Based on his doctor’s restrictions and his self-diagnosis that his job at CSP-SQ was a health hazard, the appellant did not return to work after February 28.

Appellant argued he provided respondent with all the information it needed to grant him leave and that it unlawfully withheld leave and failed to accommodate his medical needs.

On or about March 9, the appellant provided respondent with a March 1 doctor’s note listing some work limitations. He also provided a March 7 letter indicating he viewed the work restrictions from “various doctors” as an impediment to working at all and he viewed his job at CSP-SQ as a health hazard that contributed to his physical deterioration. The appellant also indicated the commute to work was itself a strain which prevented his attendance.

The appellant spoke with the RTW Coordinator and his supervisor on March 22. He informed them his absence was related to an industrial work injury and he gave them the claim number and the telephone number of the claims agency. He told them if they needed more information, they could contact the claims agency. Both the RTW Coordinator and appellant’s supervisor told appellant the March 1 doctor’s note was insufficient to support his absence from work. The RTW Coordinator informed the appellant the March 1 note was “unclear” and the supervisor told the appellant he needed to provide more information. Appellant was not offered a modified position at that time.

Appellant did not provide additional medical information and he did not contact respondent between March 22 and April 18. Respondent issued its first Notice of Automatic Resignation on April 18.

On April 24, appellant wrote to his supervisor informing her the March 9 correspondence accurately described his current health condition. Respondent wrote to the appellant on May 3 again indicating his March 1 medical documentation was unacceptable and that he had to report to work, provide substantiation for his absence, or provide medical documentation that indicated the specific light duty or reasonable accommodation that was required. Appellant responded on May 10 again telling respondent his health condition was due to an industrial injury and he asked why the March 1 documentation was unacceptable. He did not provide additional medical substantiation or clarification.

The RTW Coordinator wrote to the appellant again on May 16 telling him for at least the third time that the March 1 doctors’ note was not acceptable and that he must return to work, provide medical documentation that indicates the specific restricted activity and duration of a potential temporary light duty or reasonable accommodation assignment, or provide documentation why he could not return to work at all. Appellant responded on May 19. He again repeated his absence was the result of an industrial injury. He again questioned why the March 1 doctor’s note was unacceptable. He accused the RTW Coordinator of harassing him by shouting, “Do you hear me, return to work” over the telephone and through her previous letters to him.

On May 24, respondent notified the appellant he was being “separated” pursuant to Government Code section 19996.2 because he failed to return to work or provide substantiation of his need to be absent.

V - READY, ABLE AND WILLING

Appellant testified he could not and would not return to his previous position at San Quentin.

 

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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. Therefore, DPA makes no determination whether respondent’s invocation of the automatic resignation was improperly motivated as a result of appellant’s filing of a 2004 industrial injury claim. To the extent appellant may be appealing a denial of a reasonable accommodation or a medical termination, the appeal falls within the jurisdiction of the State Personnel Board rather than the DPA and DPA makes no determination of these issues.

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 able to return to work.

Appellant failed to prove he had a valid reason for being absent. He did not present any medical documentation or medical testimony to support his claim he was unable to work because of his health. The evidence shows appellant decided not to work under the restrictions he was given by “various doctors.” He self-diagnosed his condition as being inconsistent with his job at CSP-SQ and the fact he had to commute from Sacramento to CSP-SQ. Appellant’s self-diagnosis of his needs for reasonable accommodation and his inability to work based on his assessment that his work was hazardous to his health are an inadequate basis on which to find he had a valid reason for not coming to work.

Appellant also failed to prove he had a valid reason for not obtaining leave. Although requested to provide validating information by which respondent could determine whether or not appellant needed to be reassigned from his Office Assistant position, appellant consistently failed to provide such information. Respondent had no medical basis on which to either excuse appellant from work entirely or to provide him with a temporary light duty assignment or reasonable accommodation which could meet the totality of the medical requirements and problems indicated by the appellant in the March 1 doctor’s note and appellant’s March 7 letter. Moreover, the weight of the evidence presented by appellant suggests a reasonable accommodation or temporary light duty assignment may not have been adequate to address appellant’s reported limitation that the strain of just being at work contributed to the deterioration of his health. However, this could not be ascertained by respondent without the cooperation of the appellant in providing the required and requested medical clarification.

Appellant testified he is not able to return to his position at CSP-SQ. He is also not willing to do so. The appellant wants the respondent to provide him with a position closer to his home in Sacramento. There is no medical evidence to support this requirement and DPA is without jurisdiction to order such a reassignment. The appellant failed to prove he is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective May 24, 2006, is denied.

 

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1. All dates are 2006 unless otherwise indicated.