Kuhn

ences will be to this code) authorizes an agency subject to civil service rules to determine if an employee is medically incapacitated for duty and then demote, transfer, or terminate the employee. Subdivision (h) accords the employee reinstatement rights upon rehabilitation, subject to “satisfactory completion of a new probationary period” if one is imposed.

In the present appeal, the Department of General Services (DGS) “medically terminated” Russell Kuhn pursuant to this statute. Mr. Kuhn obtained reinstatement subject to a new probationary period. DGS later rejected him during the probationary period. The State Personnel Board (Board) determined it was bad faith on the part of DGS to reject Mr. Kuhn as an ordinary probationer (§ 19173) rather than as a “medical probationer” under section 19253.5, where he would have reinstatement rights. The Board revoked the rejection and awarded backpay. DGS filed a writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) The trial court upheld the revocation of the probationary rejection, but vacated the award of backpay. The parties have cross-appealed from their respective disappointments.

We conclude that when an employee…