Musselman v. Civil Service Commission, County of Kern

Filed 4/21/06 Musselman v. Civil Service Commission, County of Kern CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Fresno County. Louis P. Etcheverry, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Richard J. Papst for Plaintiff and Appellant.

B.C. Barmann, Sr., County Counsel, and Kendra L. Roberts, Deputy County Counsel, for Defendant and Respondent.

-ooOoo-

Lew Musselman, a former mental health recovery specialist with the Kern County Mental Health Department (Department), appeals a trial court order denying his petition for writ of administrative mandate to set aside the decision of the Civil Service Commission - County of Kern (Commission) upholding his termination for being absent without leave from his job. Musselman requests this Court to reverse the trial court's decision and order it to issue a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 to set aside his termination and reinstate him to employment. He contends he was not absent without leave because he was a qualified person with a disability who requested reasonable accommodation in the form of unpaid personal leave, which the Commission was obligated to provide to him as a matter of law. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Musselman started working for the Department as a recovery specialist in March 1999.^[1] In November 2002, Musselman was suspended without pay for three days for violating Commission rules regarding dishonesty and violating a lawful or reasonable order given by a superior officer. That same month, Musselman was placed on five days paid administrative leave due to allegations he made serious threats of violence against the Department and its employees. Due to these allegations, Musselman was placed on a paid administrative leave of absence pending a fitness for duty exam.

In January 2003, the Department was notified that Dr. Thomas P. Middleton had found Musselman unfit and unable to perform the duties of his position. Dr. Middleton recommended a three to six month course of treatment. Accordingly, the Department notified Musselman his leave of absence would be designated without pay effective February 3, 2003. In February 2003, Musselman obtained a return to work note from his treating psychiatrist, Dr. S. A. Manohara, declaring him fit for duty, and he returned to work for a half day. The following day, he returned with a note from Dr. Gary A. Longwith, his treating psychologist who is in partnership with Dr. Monahara, which stated he was unable to return to work because of a work related injury and he would be involved in individual psychotherapy and drug interventions. Dr. Longwith stated Musselman would need to remain off work for at least the next six months. Musselman then applied for and was granted a six month unpaid medical leave to August 11, 2003. Musselman was also provided his full rights under the Family Medical Leave Act and California Family Rights Act, which entitled him to 12 weeks unpaid leave.

On August 8, 2003, Musselman submitted a request for a personal necessity leave of absence, in which he requested leave from August 8, 2003 through January 1, 2004. Along with that request, Musselman submitted a report from Dr. Longwith, which stated he continued to experience depression, anxiety, panic attacks, paranoia and suicidal ideations, continued to be temporarily permanently disabled from work and had been instructed to remain off work until January 1, 2004. On August 15, 2003, the Department recommended the request for personal necessity leave be denied, as Kern County Civil Service Rules 1202.20 and 1202.20.10 limit such a leave of absence to three months and require the condition necessitating leave to be remedial within the leave period requested.^[2]

On September 9, 2003, a hearing was held before the Commission to review Musselman's leave request. Musselman told the Commission he had requested a leave of absence from the Department and attached his doctor's note, which stated he would not be ready to return to work until January 1, 2004. Musselman said he wanted the County to have Dr. Christiansen examine him and release him to return to work because he felt he was ready to do this. Dr. Donald Terleski, the Department's deputy director, stated the Department had explained to Musselman that Dr. Christiansen could not return him to work because his treating psychologist was the one who took him off work, therefore it would be necessary to obtain a release from his treating psychologist. According to Dr. Terleski, Musselman said he would get a doctor's note that would return him to work. The Commission then denied Musselman's leave request.

On September 15, 2003, Dr. Terleski sent Musselman a letter informing him that since the Commission denied his leave request, he was now considered absent without leave since August 26, 2003, and proposed his termination effective September 29, 2003, for violating Kern County Civil Service Rule 1705.01, Absence Without Leave.^[3] Dr. Terleski advised Musselman of the right to respond to the proposed action by either writing him or requesting an interview with him within five days of receipt of the letter. Musselman never brought in a doctor's note authorizing him to return to work or contacted Dr. Terleski to request a meeting.^[4] Consequently, on September 29, 2003, Dr. Terleski sent Musselman a letter informing him that he was terminated effective that day.

Musselman appealed his termination on October 8, 2003, requesting a hearing before the Commission. On December 9, 2003, the first night of the hearing, Musselman's attorney provided the Commission's attorney with a note from Dr. Longwith, which stated that Musselman was â€