County Employee Entitled To Backpay After Being Dismissed And Denied Disability Retirement


In Stephens v. County of Tulare (2004 Daily Journal D.A.R. 13,356, Cal.App. 5 Dist., Oct. 29, 2004), the California Court of Appeal addressed the issue of whether a county employee had been “dismissed” and was therefore entitled to reinstatement and backpay under the County Employees Retirement Law of 1937.


While working for Employer, the Sheriff’s Department of Tulare County, Employee, John Stephens, suffered work-related injuries to his right thumb for which he sought workers’ compensation benefits. When he returned to work, he was reassigned so as to accommodate his work restrictions. He complained, however, that part of his job duties (only the rotation to the central control room) required him to exceed his work restrictions. On September 12, 1997, a superior officer notified Employee in writing that Employer would not be able to provide him a work assignment at that time; that he should not return to work until he could perform the duties of the reassigned position; and that he should submit time sheets reflecting use of personal sick leave.

On November 18, 1998, Employee applied to the County’s Retirement Board for service-connected disability retirement; the Board denied the request in July 2001. Employee filed a lawsuit in the trial court seeking review of the Board’s decision, but he did not appeal the trial court’s October 23, 2002 denial of his request. On October 29, 2002, Employee asked to be reinstated with backpay, effective September 13, 1997, the day after he received the letter advising him not to return to work. He then sued asking the trial court to order Employer to reinstate him with backpay. The trial court denied the request for backpay and Employee appealed.

Appellate Court Decision

The County Employees Retirement Law of 1937, at Gov. Code § 31725, provides that, if a County Retirement Board denies an employee’s application for disability retirement and a court denies a request for review of that decision, the employer must reinstate a dismissed employee, effective the day following the dismissal. The decision in this case turned on the issue of whether Employer had actually dismissed Employee. Employer maintained that it did not dismiss Employee; rather, it argued, Employee took himself off work, notwithstanding Employer’s willingness to provide him with a light-duty assignment consistent with his work restrictions.

The Court of Appeal disagreed with Employer’s position. “Dismissed” does not mean the same thing as “terminated” or “fired,” because an employee may be effectively dismissed if the county simply takes him or her off active duty. Here, Employee presented evidence that the light duty assignment, to the extent it required Employee to do a rotation in the central control room, was not compatible with his work restrictions. Also, Employer notified Employee on September 17 and November 26, 1997, that it had no jobs available that were compatible with his work restrictions. Thus, “the evidence does not support the conclusion it was [Employee’s] own, self-imposed work restrictions that prevented his return to work between 1997 and 2003.”

Accordingly, the Court concluded that Employee “was placed on what amounted to an involuntary medical leave in 1997 because [Employer] determined he was unable to perform the functions of a control room officer in the central control room.” Because Employee had effectively been dismissed, he was entitled to reinstatement with backpay effective as of September 13, 1997, the day after he received notice not to return to work.

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