Opinion
Rehearing Denied March 19, 1974.
Page 995
Russell Olin, Pueblo, for plaintiff-appellant.
Thomas E. Jagger, City Atty., Pueblo, for defendants-appellees.
ENOCH, Judge.
This is an appeal from a judgment upholding a decision of the Civil Service Commission of the City of Pueblo sustaining the discharge of Esau McCall. We affirm.
McCall, a classified civil service employee of the City of Pueblo, was injured in a work-related accident through no negligence on his part. He was granted the maximum one year injury leave with full pay provided for in the Pueblo Code of Ordinances s 10--16(d)(3)(A)(i). Upon expiration of the injury leave he was granted an additional six days vacation leave, which extended his pay to February 8, 1971. At that time McCall was still unable to resume his duties, and requested additional leave without pay. This request was denied. He was subsequently discharged by notice issued March 29, 1971, effective February 8, 1971. As grounds for the discharge the notice stated:
'One year injury leave expired 1--31--71. Extended 6 days vacation leave to 2--8--71. He is physically incapable of carrying out duties pursuant to Dr. Young's letter of March 19, 1971.'
McCall appealed to the Commission and after a hearing on April 23, 1971, the Commission upheld the discharge and found that 'plaintiff was and still is physically unable to perform the duties of his position and unable to follow orders of his supervisor.' The Commission further found that it had no authority to grant additional leave. The doctor's report indicated that McCall would be able to return to work in May 1971.
I.
VALIDITY OF THE DISCHARGE
The problems presented in this appeal are the interpretation and applicability of various provisions of the city civil service ordinance. Pueblo Code of Ordinances s 10--1 et seq. Two provisions deal with termination of employment. Section 10--10 provides that an employee may be laid off because of a reduction in work force and that such employee shall be placed on a reinstatement list and shall receive designated preference for re-employment. Section 10--11(d) provides for disciplinary discharges, one of the grounds being 'refusal or inability to follow orders.' There is no specific section covering employees who are injured on the job and are unable to return to work at the end of their injury leave time. McCall contends that it was error to discharge him under Section 10--11 because that section applies only to disciplinary situations where the employee was at fault. He points out that, by definition, a 'discharge' terminates employment with prejudice, and that the city may reject an application for employment on the grounds that the applicant was previously discharged. See Pueblo Code of Ordinances ss 10--1(14) and 10--3(e)(6).
The trial court concluded that the city was not required to retain an employee after the expiration of the one year injury leave, and that the Commission did not abuse its discretion in determining that inability to work because of physical injuries may constitute a ground for discharge under Section 10--11. However, under the circumstances of this case the court found that it was unreasonable to apply the penalty provisions and held that the discharge should be without prejudice and that the discharge would not be grounds for rejecting an application for re-employment. The court refused, however, to order that McCall be placed on the reinstatement list, which would have preserved his seniority as if he had been laid off due to a reduction of work force under Section 10--10.
Under the clear wording of this ordinance, Section 10--10 does not apply in this case because there was no reduction of work force. To accept McCall's argument and prohibit the application of Section 10--11 would render the city powerless to discharge an employee under the circumstances of this case, and would require the city to retain the employee on leave status until such time as the employee and his doctor determine that he is able to resume his duties. Such a policy may be in the best interest of the employee, but it completely overlooks the interest of the general public. Civil service laws have a dual purpose, which includes promoting the welfare of the individual civil servant, 'but an overriding policy is promotion of the best interests of the public as a whole.' Turner v. City and County of Denver, 146 Colo. 336, 361 P.2d 631.
McCall had the benefit of a year's injury leave with full pay and at the end of that period it is admitted that, because of his injuries, he was unable to resume his duties or follow orders of his supervisor. Section 10--11 of the ordinance does not require Willful inability to follow orders. The grounds for discharge require only that the employee be unable to follow orders. By his own admission McCall was unable to perform the services required by the city on the day he was due back at work and would not have been able to resume his duties until May. We find no abuse of discretion on the part of the Commission in the enforcement of the ordinance as it is written.
II.
VALIDITY OF DENIAL OF ADDITIONAL LEAVE
McCall's final contention is that the city manager acted arbitrarily and capriciously in refusing to grant additional leave without pay which would, in effect, have extended his injury leave until he presumably would have been able to return to work. The request for leave without pay was made under Section 10--16(e) which reads in part as follows:
'(2) Less than three months. The city manager May authorize special leaves of absence with or without pay for any period or periods not to exceed three calendar months in any one calendar year For the following purposes: attendance at college, university, or business school for the purpose of training in subjects related to the work of the employee and which will benefit the employee and the city service; urgent personal business requiring employee's attention for an extended period such as settling estates, liquidating a business, serving on a jury and attending court as a witness, and for purposes other than above that are deemed beneficial to the city service. (Emphasis added.)
(3) Without pay. The city manager may authorize special leaves of absence without pay for any of the purposes set out in the preceding subparagraph of this section (e) for any reasonable length of time.'
McCall contends that the city manager had the burden of showing that the denial of the request for leave was reasonable and was for the benefit of the employer. We do not agree. The burden of proof is on the employee to show that his request for a leave qualified under one of the specific purposes enumerated in the ordinance or that it was for any other purpose which would be 'deemed beneficial to the city service.' Even if he had made such a showing, the granting or denying would still be a discretionary act on the part of the city manager. McCall failed in his burden of proving that the city manager was arbitrary or capricious in refusing to grant the requested leave. See Smith v. Board of County Commissioners, 10 Colo. 17, 13 P. 917.
Judgment affirmed.
PIERCE and RULAND, JJ., concur.