Final Non-Precedential Decision Adopted: January 18, 2005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 10:00 a.m. on December 10, 2004, at Sacramento, California.

Appellant, was present and was represented by Allan Gomes, Attorney.

Gregory Brown, Attorney, represented the Department of Health Services (DHS), respondent.

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

Respondent automatically resigned appellant effective close of business September 15, 2004, for being absent without approved leave from September 16 through September 22, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on September 28, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued she had a valid reason for being absent because respondent refused to grant her the reasonable accommodation she and her psychiatrist deemed necessary for her to return to work.

She argued she had a valid reason for not obtaining leave because she did not require leave. She argued she was prevented from returning to work by respondent who refused to provide her with the reasonable accommodation needed to enable her to return to work.

Appellant further argued she was ready, able, and willing to return to work if she is granted her reasonable accommodation.

At hearing the parties stipulated to facts and exhibits which provide the following information.

Appellant began working for the DHS in December, 1977. Appellant went off work on medical leave beginning December 22, 2003. From at least November, 2003 through April, 2004, appellant sought medical treatment from a host of medical professionals including a Marriage and Family Therapist and a psychiatrist. Appellant was treated for panic attacks, moderate depression, insomnia, and symptoms of post-traumatic stress disorder. Both appellant and her medical providers concluded that her medical problems were related to appellant’s interaction with her manager.

On or about April 21, 2004, appellant’s medical providers recommended she return to work with the restriction that she “no longer have work-related responsibilities that bring her into contact” with her manager. On or about May 18, 2004, appellant submitted a Reasonable Accommodation Request (RAR) with copies of her medical providers’ restrictions. As a reasonable accommodation, appellant requested, and her treating medical professionals recommended, reassignment to a new manager and relocation of appellant’s office so that she had no interaction with the manager.

On July 20, 2004, respondent denied appellant’s RAR. Respondent determined that the request did not meet the criteria for a reasonable accommodation. Appellant appealed the denial to the State Personnel Board (SPB) on August 12, 2004.

Appellant requested an extended medical leave of absence. On September 9, 2004, respondent approved appellant’s request for an extended leave from August 5, 2004 through September 15, 2004. Respondent also reminded appellant that she must contact her manager prior to September 15, 2004 and that failure to return to work or obtain approval for additional leave could result in absence without leave (AWOL) separation.

Appellant contacted respondent on September 14, 2004 by telephone. She reported she was released to return to work with restrictions and, she requested that she be notified of who her new manager was and where she should report to work. On or about that same day, she faxed a letter reiterating her telephone conversation and a notice from her doctor releasing her to return to work with the restriction that she report to a manager other than the manager.

Respondent reiterated its denial of appellant’s reasonable accommodation request in a letter to appellant on or about September 15, 2004. Respondent ordered appellant to report to the manager for work on September 16, 2004 or to obtain an approved extension of leave. Respondent notified appellant that “Failure to report will be considered absence without official leave.”

Also on September 15, 2004, appellant’s attorney contacted respondent by letter. The attorney notified respondent that appellant was not required to seek a continuance of her leave of absence because she could return to work as long as she was not under the manager’s supervision. Appellant’s attorney suggested appellant be temporarily returned to work until a permanent solution could be achieved and he suggested the parties invoke the interactive process for identifying a reasonable accommodation.

Apparently there was no further contact between the parties. On September 22, 2004 respondent notified appellant she was being automatically resigned effective September 16, 2004 because she was absent without leave. Appellant appealed the automatic resignation on September 27, 2004.

Appellant’s appeal of the denial of her reasonable accommodation request was heard before the SPB on November 8, 2004. At the time of the DPA hearing on December 10, 2004, the decision in that case was pending.

Appellant was absent from September 16, 2004 through September 22, 2004 because respondent would not provide her with a new manager and would not relocate her office as requested in her May 18, 2004 RAR as required by her treating medical providers.

Appellant and her medical providers believed appellant’s return to work for the manager would be detrimental to her health. Appellant validly relied upon her past experience in the previously existing work environment and her medical providers’ assessments. Appellant had a valid reason for being absent.

Appellant did not obtain leave because she believed she had a legal right to be reasonably accommodated rather than being required to take a leave of absence. In August, 2004, she notified respondent she was able to work with a reasonable accommodation. Her medical/mental requirements for reasonable accommodation were supported by her medical providers. She timely notified respondent she would return to work in a temporary arrangement. She invited further discussion during the interactive process which is required to determine what action may be taken when an employee asserts he/she requires reasonable accommodation.

Respondent knew appellant was medically/mentally unable to return to work without the requested reasonable accommodation. Respondent refused to grant the reasonable accommodation because it believed it was not legally required to do so.

Appellant was well aware of respondent’s denial of her RAR. At the time she was required to request continuing medical leave, she had no reason to believe respondent’s position regarding her RAR would change. Continuing medical leaves of absence could ultimately delay any potential return to work or potential resolution of the reasonable accommodation dispute. Appellant should not be required to take a leave of absence because respondent will not reasonably accommodate her or take other action that specifically addresses the employment future of an employee who has been diagnosed as being medically/mentally unable to work without accommodation.

Therefore, appellant had a valid reason for not obtaining a medical leave.

Appellant and her medical providers maintain she is ready to return to work and able to return to work if she is reassigned to a different manager and relocated so that she has no interaction with her previous manager. Appellant is unwilling to come to work unless she is granted these accommodations.

 

* * * * *

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. It does not have jurisdiction to determine the underlying issue at the core of this case-- whether or not respondent is legally obligated to provide the requested reasonable accommodation. DPA lacks jurisdiction under Section 19996.2 to order respondent to provide the requested reasonable accommodation. Respondent’s denial of appellant’s RAR is currently properly before the SPB pending decision. Therefore, DPA makes no finding whether or not respondent properly involved Section 19996.2 in this instance.

Appellant has the burden of proof in this request for reinstatement. She proved by a preponderance of the evidence that she had a valid excuse for her absence and that she had a valid reason for not obtaining leave.

However, appellant is unable and unwilling to return to work unless she is reassigned to a different manager and her office is relocated. The lawfulness of respondent’s failure to provide these accommodations is beyond DPA’s jurisdiction to decide. Therefore, DPA is unable to order appellant’s reinstatement under Section 19996.2.

 

* * * * *

that the appeal for reinstatement after automatic resignation from the position of Staff Services Manager I effective close of business September 15, 2004, is denied.