Employee Who Was Never Separated Or Dismissed From Employment Could Not State A Claim Against Her County Employer For Failure To Reinstate Or Help Her Obtain Disability Retirement Benefits

An employee on disability leave brought a lawsuit against the county that employed her for failure to reinstate her or to help her apply for disability retirement benefits.  A court of appeal held that the employee failed to meet the statutory requirements for her claims against the county because she was never separated or dismissed from her employment.  (Mooney v. County of Orange (— Cal.Rptr.3d —-, Cal.App. 4 Dist., January 11, 2013).


The County of Orange (“County”) hired Valerie Mooney (“Mooney”) as a deputy probation counselor in November 1990.  In June 2004, Mooney suffered a lumber disc injury while at work.  Mooney took a two-month medical leave.  Shortly after she returned to work, Mooney suffered a second injury that caused her to take another two-month medical leave.  Mooney began working in late 2004 without restrictions but from March 12, 2005, through May 25, 2006, she was placed on a restriction that allowed her to work no more than 40 hours per week.

County informed Mooney on May 30, 2006, that it was no longer able to accommodate her work restrictions and, therefore, she was not cleared to work.  Mooney requested an immediate Americans with Disabilities (“ADA”) meeting.  An interactive meeting was held on June 22, 2006.  In July, County gave Mooney a job assignment performing clerical duties.  Mooney was examined in October 2006 by an agreed medical examiner.  County received notice of permanent work restrictions for Mooney on January 3, 2007.  Mooney is precluded from heavy lifting and repeated bending or stooping.  County told Mooney it could not accommodate the permanent restrictions within her job classification and told her not to return to work until it made a final decision about accommodating her permanent work restrictions.  Thereafter, Mooney attended periodic ADA meetings.  County tried to find Mooney a position in another department but no other departments initially selected Mooney for employment.

Mooney filed an application for disability retirement with the Orange County Employees Retirement System (“OCERS”) because she alleged that her “disability prevented her from meeting the minimum physical qualification standard for her classification of deputy juvenile correctional officer II.”   The County did not volunteer to help Mooney apply for disability retirement benefits and did not assist her in the process when she asked for assistance.

Mooney told County she was not willing to take a position unless the position allowed her to keep her sworn status and her safety retirement benefits.  OCERS advised Mooney in February 2008 that it had denied her application for disability retirement because of insufficient evidence of permanent incapacity.  County did not assist Mooney in appealing the denial of benefits.  Interactive meetings continued throughout 2008 and 2009.  OCERS denied Mooney’s appeal on December 1, 2009.  

In January 2010, County offered Mooney an office assistant position at North County Field Office that was within her work restrictions and paid $17.90 per hour.  Mooney rejected the position because the position did not allow her to keep her original title and it was $10 below her pay level.  In August 2010, County offered Mooney a position as a staff assistant, which did not pay as much as her previous position or offer safety retirement benefits.  Mooney decided to remain on disability leave. 

County never dismissed or terminated Mooney from her employment.  Due to her permanent work restrictions, she was physically unable to perform the duties of deputy juvenile correctional officer II.  County continued to try to reassign Mooney to a position that would accommodate her work restrictions.  Mooney has not looked for another job since her injury in 2004 and she has never filed an application for unemployment insurance benefits.

Mooney filed a lawsuit against County in April 2010 for disability discrimination, failure to provide reasonable accommodations, failure to engage in the interactive process, reinstatement, and violation of Government Code sections 31721, subdivision (a), and 31725.  The trial court granted summary judgment in favor of County on Mooney’s claims for violation of the Government Code because Mooney was never terminated or dismissed from her employment.  A jury found in favor of County on Mooney’s claims of disability discrimination, failure to provide a reasonable accommodation, and failure to engage in the interactive process.  The trial court found in favor of County on Mooney’s reinstatement claim.


Mooney appealed from the trial court’s grant of summary adjudication in favor of County on her causes of action under the Government Code.  The court of appeal affirmed the decision of the trial court on the ground that her “claims fail as a matter of law because the undisputed facts show that Mooney was neither ‘dismissed’ by the County because of a disability, within the meaning of section 31725, nor ‘separate[d]’ from employment by the County, within the meaning of section 31721, subdivision (a).”  The court found that in the context of these two statutes, the terms “dismissed” and “separate” have the same meaning.

Government Code section 31725 addresses reinstatement of employment for a county employee who has been dismissed due to a disability.  The Supreme Court previously “explained that section 31725 requires that ‘if (1) the county board of retirement rules an applicant/employee is not permanently disabled so as to be entitled to a disability retirement, (2) the board denies the employee’s disability retirement application on that ground, and (3) no appeal is filed or all appeals are final, then the applicant/employee is entitled to reinstatement to his or her prior position if (4) the employing county has previously ‘dismissed ’the employee ‘for disability.’”  It is undisputed that Mooney applied for disability retirement and OCERS denied her application and appeal.  Section 31725 requires that County must reinstate Mooney to her former position if County dismissed her “for disability.”

The Supreme Court previously determined that the term “‘dismiss’ means to ‘send or remove from employment’” and when “used in connection with section 31725, ‘dismissed,’ ‘terminated,’ and ‘release’ all share a common meaning” that describes “a circumstance in which the employment relationship, at the employer’s election, has ended.”  The Court stated, “Because the relationship has ended, (1) the employer no longer has an obligation to pay salary or other forms of compensation, and (2) the employee has no basis for expectation that a position exists, will be kept open, or will be made available upon the employee’s offer to return to work.”  Section 31725 requires an action by the employer that severs the employment relationship.  “An employee who is neither sent away nor removed, but voluntarily absents himself or herself from the job, without more, cannot validly claim he or she was ‘dismissed’ by the employer.” 

Here, the undisputed evidence shows County never terminated Mooney’s employment.  She remained on disability leave until she signed a declaration filed in opposition to County’s motion for summary adjudication.  She was physically unable to perform the duties of her position.  County never notified her that her employment was terminated or that it could not find another position for her.  To the contrary, the evidence shows County continued to try and accommodate Mooney.  “County participated in several interactive meetings with Mooney and also communicated to all of its agencies, on Mooney’s behalf, in an effort to identify open positions for which Mooney was qualified and within her work restrictions.” 

Mooney rejected two positions County offered her that were within her work restrictions.  She repeatedly told County she would not accept a position that would not let her keep her sworn status and safety retirement benefits.  She did not apply for unemployment insurance benefits and she has not looked for a job since 2004. The court concluded, “To the extent Mooney has lacked employment-related income following the denial of her application for disability retirement, it is the product of her inaction, namely, not accepting the alternative placements offered by the County, rather than the result of any dismissal from employment with the County.”  The court of appeal held the trial court did not err in concluding that Mooney was not dismissed within the meaning of section 31725. 

Government Code section 31721, subdivision (a), provides “A member may be retired for disability upon the application of the member, the head of the office or department in which he is or was last employed, the board or its agents, or any other person on his behalf, except that an employer may not separate because of disability a member otherwise eligible to retire for disability but shall apply for disability retirement of any eligible member believed to be disabled, unless the member waives the right to retire for disability and elects to withdraw contributions or to permit contributions to remain in the fund with rights to service retirement as provided in Article 9 (commencing with Section 31700).”  Mooney claims County violated this statute because it separated her from her employment because of her disability, it did not assist her in filing for disability retirement, and it did not assist her in appealing the denial of her application.  The trial court found that section 31721, subdivision (a), was inapplicable to Mooney’s situation because County did not “separate” Mooney from her employment.  The court of appeal agreed with the trial court’s conclusion. 

As a general rule, the terms “dismissed” and “separate” when used in the context of employment law are not necessarily interchangeable.  Although either an employee or an employer may initiate a separation from employment, a dismissal from employment usually involves the employee being involuntarily terminated from his or her employment.  However, in the context of the statutes at issue here, the way the terms are used shows that they are meant to have the same meaning.  “Here, as an employer’s duties arising under section 31725 are triggered by the employer’s act of dismissing an employee, the employer’s duties arising under section 31721, subdivision (a) are similarly triggered by an act of the employer—namely, the employer’s act of separating the employee from employment.”  The court stated, “Such an involuntary separation from employment, from the employee’s perspective, is indistinguishable from a dismissal from employment.”  Despite the fact that the Legislature chose to use different terminology, the court concluded “the Legislature intended the term ‘dismissed’ in section 31725 and ‘separate’ in section 31721, subdivision (a) to mean the same thing.”

The court of appeal held the trial court did not err when it concluded that Mooney had not been separated from her employment.  Therefore, Mooney failed to state a claim under section 31721, subdivision (a).  Accordingly, the court of appeal affirmed the trial court’s summary adjudication in favor of County.


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