California Law Provides for Limited Reinstatement

The California statutory law governing Orange County members of the retirement system, provides for a limited reinstatement following a denial of a disability retirement:

31725. Permanent incapacity for the performance of duty shall in all cases be determined by the board.

If the medical examination and other available information do not show to the satisfaction of the board that the member is incapacitated physically or mentally for the performance of his duties in the service and the member’s application is denied on this ground the board shall give notice of such denial to the employer.
The employer may obtain judicial review of such action of the board by filing a petition for a writ of mandate in accordance with the Code of Civil Procedure or by joining or intervening in such action filed by the member within 30 days of the mailing of such notice. If such petition is not filed or the court enters judgment denying the writ, whether on the petition of the employer or the member, and the employer has dismissed the member for disability the employer shall reinstate the member to his employment effective as of the day following the effective date of the dismissal.
 
The California Supreme Court, in Stephens v. Cnty. of Tulare, 38 Cal.4th 793, (2006), interpreted the term “dismissed” saying that it means termination [and in so doing considered preceding case law to define what termination means].

In Stephens, after the Tulare County Retirement System’s final decision to deny Mr. Stephens a disability retirement, he sought reinstatement to his former job. Mr. Stephens was returned to his job as a Detention Specialist. This was not a lessor paying or different job, but was his actual last job classification. Mr. Stephens, however, filed a lawsuit seeking reinstatement of back pay and benefits for the time before he requested reinstatement and before the Retirement System’s final decision, during the time he was voluntarily off work because of his medical condition.

Thus, the Stephens’ court ​had to determine whether Mr. Stephens was entitled to retroactive reinstatement for the period of time ​from when Mr. Stephens voluntarily went off work ​up to the time of the Retirement System’s final decision denying his disability retirement. It is during that specific time that the Supreme Court determined Mr. Stephens was not dismissed (terminated) so he could not claim entitlement to reinstatement for that specific time period.

Since ​the ​Stephens ​decision, employers have ​pushed to expand its ​application so as to deny employees reinstatement following denial of disability retirement applications. Employers merely claim the employee was not terminated so it has not obligation to reinstate the employee to their job.

In January 2013, the County of Orange was successful in denying reinstatement to a deputy probation counselor to her job. In th​at​case, ​probation counselor was denied disability retirement by the Orange County Employees’ Retirement System and also denied reinstatement to her job as a deputy probation officer. She agreed she was disabled from her job ​because her disability did not magically disappear ​just ​because the Retirement System claimed she was not disabled from her job. She asserted though she was entitled to reinstatement to her safety status and equivalent pay given her disability retirement application was denied. The Court disagreed​ and said that because the plaintiff was physically unable to perform the duties of a deputy juvenile correctional officer II, the County did not refuse her request for reinstatement following a leave of absence, or, more accurately, that it did not wrongfully refuse her request to reinstatement because she was not dismissed. The Court ignore​d​the employee’s right to restoration to paid status by asserting that ​her right to reinstatement did not arise ​because the Court already had determined that she had not been dismissed.

However, the California Supreme Court in Stephens found that “a failure to reinstate an employee, following a period of permissive, voluntary leave, can constitute a ‘dismissal’ despite the absence of a formal termination or firing​.​” ​This latest case involving the Orange County probation counselor appears to conflict with the Supreme Courts ​pronouncement in its Stephens decision.

​The net result is that in Orange County an employee may be denied reinstatement if he or she is incapable of performing the duties of his or her former job and if other jobs, lessor paying alternative jobs, within his or her residual capabilities are available, he or she may be denied restoration to paid status because ​it is now permissible ​to claim that he or she ​was ​​never ​dismissed. ​The Orange County result appears to be in conflict with other applicable appellate decisions making this a matter of continued need to assess on a case-by-case basis.​

The California law firm of Faunce, Singer and Oatman has successfully handled thousands of cases related to labor law.   If you have had a denial of pension benefits, or been discriminated against, please contact the law firm of Faunce, Singer and Oatman at 1-800-874-2284.

Jane Oatman
Faunce, Singer & Oatman
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284

CalPERS Denies Members Right to File Disability Retirement Claim

CalPERS Denies Members Right to File Disability Retirement Applications When the Member is Terminated

At times, CalPERS precludes its members from filing applications for disability retirement when it obtains information from its contracting agencies that the employee/member has been terminated from work. CalPERS relies on Haywood v. American River Fire Protection Dist., (1998) 67 Cal.App.4th 1292 to support its position. However, to preclude an application for disability retirement under CalPERS law, “a person must be terminated for cause and Haywood does not apply where the cause for the dismissal was the result of a disabling medical condition, or where the dismissal would be “preemptive of an otherwise valid claim for disability retirement.” Nonetheless, CalPERS staff still may recommend denying its member the right to file an appeal. This forces the member to request an administrative hearing to prove the dismissal was based upon disability and was not for cause.

In the case of Patton v. Governing Board, (1978) 77 Cal.App.3d 495, a bus operator was denied his sick leave request on the ground that he was fired from his bus driver position by the San Jacinto Unified School District because he no longer had a DMV certificate to drive a school bus. However, the District was aware of its bus operator’s continuing medical condition which was the only reason he did not have a DMV certificate to drive a school bus. The court said that the bus operator lost his DMV certificate to drive a bus solely because of his back disability. Therefore, the court determined that the member was actually terminated because of disability.

Thus, in a subsequent case to Haywood, Smith v. City of Napa, 120 Cal.App.4th 194, (2004), the court, “repeatedly cautioned that the Haywood holding would not apply where the cause for dismissal was the result of a disabling medical condition, or where the dismissal would be “preemptive of an otherwise valid claim for disability retirement.” The court specifically cited, the Patton case showing such a circumstance. The Smith Court also noted that there may be reasons why the member would be allowed to apply for a disability retirement because of the demands of fundamental fairness.

The California law firm of Faunce, Singer and Oatman has successfully handled thousands of cases related to labor law.   If you have had a denial of pension benefits, or been discriminated against, please contact the law firm of Faunce, Singer and Oatman at 1-800-874-2284.

Jane Oatman
Faunce, Singer & Oatman
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284