From United States Equal Employment Opportunity Commission (EEOC):
“This report covers the period from October 1, 2007, through September 30, 2008. The September 30 snapshot includes only employees in pay status thus, some permanent employees, like seasonal employees or those on active military tours of duty are not included….. while the United States Postal Service constituted 27.6% of the work force, it accounted for 47.1% of all EEO counselings, 36.6% of all complaints filed, 36.9% of all completed investigations and 40.8% of all complaints closed in FY 2008.”
Among the cabinet/large (15,000 or more employees) agencies, in FY 2008, the USPS reported the highest percentage (2.2%) of its work force that completed counseling, while the government-wide average was 1.2%
In FY 2008, the U.S. Postal Service again had the highest ADR participation rate in the pre-complaint process (74.1%) among the cabinet/large agencies, while the government-wide average was 49.5%.
The US Postal Service timely completed 99.5% of its 4,113 investigations in FY 2008.
In FY 2008, the U. S. Postal Service reported the second highest percentage (95.9%) of timely issued merit decisions without an Administrative Judge of agencies with 15,000 or more employees.
Targeted Disabilities
As of September 30, 2008, USPS employed 5,479 (0.83%) Individuals with Targeted Disabilities (IWTD). In order to have met the federal 2% participation rate goal, 15,259 IWTD were needed. This represented a decrease of 266 employees over FY 2007 and a decrease of 858 employees since FY 2004. The participation rate for FY 2007 was 0.84% and for FY 2004 was 0.9%. Over the 5-year period USPS had a net decrease of 0.07% in employees with targeted disabilities.
Costs
USPS agreed to pay $703,467 for 5,504 pre-complaint settlements, of which 456 were monetary settlements averaging $1,542. USPS expended a total of $6,175,445 for 4,113 complaint investigations, for an average expenditure of $1,501.
USPS agreed to pay a total of $5,777,740 plus other benefits for 669 complaint closures through settlement agreements, final agency decisions, and final agency orders fully implementing AJ decisions. For the 443 complaint closures with monetary benefits, the average award was $13,042.
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD
(909) 987-XXXX
INLAND OFFICE OF APPEALS XXXX Arrow Rt, Bldg 19-A
PO BOX XXXX RANCHO CUCAMONGA CA 91729
GUILLERMO MOJARRO Claimant-Appellant
US POSTAL SERVICE c/o UCEXPRESS
Employer
Case No. XXXXXXX
Issue(s): 1256
Date Appeal Filed: 01/12/2010
EDO: XXXX BYB: 11/01/2009
Date and Place of Hearing(s):
(1) 04/12/2010 Rancho Cucamonga
Parties Appearing:
Claimant, Employer
DECISION
The decision in the above-captioned case appears on the following page(s).
XXXXXXXX XXXXXXXX, Administrative Law Judge
Case No.: XXXXXXX Inland Office of Appeals
CLT/PET: Guillermo Mojarro
Parties Appearing: Claimant. Employer
Parties Appearing by Written Statement: None
ISSUE STATEMENT
The claimant appealed from a determination disqualifying the claimant for unemployment benefits under Unemployment Insurance Code section 1256. The issue in this case is whether the claimant left the most recent employment voluntarily without good cause.
FINDINGS OF FACT
The claimant was employed as a Distribution Clerk. Level VI, for 22 years with the above-named employer earning $52,000 per year when his employee on October 30, 2009 under the following circumstances. The claimant resigned and accepted early retirement.
The claimant has a long, complicated history of grievances with his employer. The relevant portion of that history begins in February of 2007 when he was suspended for inappropriate conduct towards a co-employee. At the end of that brief suspension, the claimant informed the employer that he was not emotionally prepared to return to work. The claimant’s physician verified the claimant was unable to work because of his depression and anxiety. The claimant did not return to work before resigning on October 30, 2009 to accept his early retirement.
In February of 2009n the claimant requested to be returned to work. On March 26, 2009 the employer notified the claimant in writing that he was required to provide “objective and specific medical documentation sufficient to establish that you are able to perform the essential functions of your position, with or without accommodation…” before the employer could return him to employment. In response to this directive the claimant submitted a four-paragraph correspondence from his treating psychiatrist, Dr. Harry G. Lewis. The correspondence detailed the claimant’s condition, diagnosis and prognosis.
At the hearing the employer’s psychiatrist confirmed that this correspondence from Dr. Lewis “technically” satisfied the employer’s request for detailed medical documentation. Despite complying with the request, the employer did not return the claimant to his employment. Instead, it demanded that he submit to examination by the employer’s physicians. The claimant asserted his privacy rights and prevented the employer-appointed psychiatrist from sharing his
opinions with the employer. The employer refused to return the claimant to his position. The impasse was not resolved until the claimant became eligible for early retirement, which he then accepted.
REASON FOR DECISION
In Precedent Decision P-B-37 the appeals board held that in determining whether there has been a voluntary leaving or a discharge under section 1256 of the code it must first be determined who was the moving party in the separation. If the claimant left employment while continuing work was available, the claimant was the moving party. If the employer refused to permit the claimant to continue working, although the claimant was ready, willing and able to do so, the employer was the moving party.
An individual is disqualified for benefits if he or she has been discharged for misconduct connected with his or her most recent work. (Unemployment Insurance Code, section 1256.)
Absence caused by illness does not constitute misconduct. (Precedent Decision P-B-216.)
The department’s determination that the claimant was the moving party in this separation of employment is incorrect. The claimant had been out of work due to a psychiatric condition. The leave from work was approved by the employer. The claimant’s psychiatric issues were resolved according to the claimant’s treating physician, thereby opening the way for him to return to employment. The employer refused to permit the claimant to continue to work since it had not received a medical report from its own physician concerning the claimant’s medical condition. The claimant was ready willing and able to return to employment. Accordingly, the employer’s refusal to return the claimant to employment was the reason the claimant was forced to take early retirement, and thus the employer is the moving party in the separation.
The claimant was not discharged for misconduct connected with his most recent work. The absence from work was due to psychiatric medical condition. The employer approved the leave, and appropriately demanded medical verification that the claimant was capable of returning to his employment. According to the employer-appointed psychiatrist the claimant’s treating psychiatrist’s written release “technically” complied with the employer demand. Nevertheless, the employer refused to return the claimant to work.
The absence from work for a medical condition is not misconduct. The claimant was cleared medically by his own physician to the satisfaction of the employer’s written policy, and should have been returned to work. The employer’s refusal to return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting to misconduct by the claimant. Accordingly, the claimant is not disqualified under code section 1256.
DECISION
The department’s determination is reversed. The claimant is not disqualified under code section 1256. and benefits are payable provided the claimant is otherwise eligible.