Jones

I. INTRODUCTION

Plaintiff, Marietta Jones, appeals from the denial of her mandate petition seeking reinstatement and backpay. Plaintiff was injured while employed as a paraeducator by defendant, the Los Angeles County Office of Education. We agree with defendant that plaintiff is only entitled to placement on a 39-month reemployment list pursuant to Education Code section 45192. Hence, we affirm the denial of her mandate petition.

*985 II. FACTUAL AND PROCEDURAL HISTORY

A. Premandate Petition Events

The following factual and procedural matters are taken from the evidence before the trial court at the time of the hearing on the mandate petition including plaintiff’s deposition testimony. Plaintiff was hired by defendant as a paraeducator in January 1983. Plaintiff completed probation and became a permanent employee in May 1983. Incident to her employment, she became a member of the Public Employees’ Retirement System. A paraeducator works under the supervision of a classroom teacher and is described in defendant’s written job description as a paraprofessional. Among the duties of a paraeducator are assisting a teacher in: teaching; implementing a child’s individualized…

I respectfully dissent.

The majority writes that “[o]ne thing is clear . . . there is no statutory duty to pay plaintiff a full salary for a job she would not perform.” I think there is: Government Code section 21153, which provides that “Notwithstanding any other provision of law, an employer may not separate because of disability a member otherwise eligible to retire for disability but shall apply for disability retirement of any member believed to be disabled . . . .”

The majority is able to avoid Government Code section 21153 (section 21153) and focus on Education Code section 45192 by finding a distinction between “disability” under the Government Code and being “medically able to assume the duties of the . . . position,” under the Education Code, thus creating a hierarchy of medical problems, so that Jones was not disabled under the Government Code, but was merely “medically unable” under the Education Code.

*993 I do not see that the law makes that distinction. When Los Angeles County Office of Education applied for disability retirement for Jones, and when it separated her from employment and placed her on the 39-month reemployment list, it did so because it believed…

Plaintiff, Marietta Jones, appeals from the denial of her mandate petition seeking reinstatement and backpay. Plaintiff was injured while employed as a paraeducator by defendant, the Los Angeles County Office of Education. We agree with defendant that plaintiff is only entitled to placement on a 39-month reemployment list pursuant to Education Code section 45192. Hence, we affirm the denial of her mandate petition.

The following factual and procedural matters are taken from the evidence before the trial court at the time of the hearing on the mandate petition including plaintiff's deposition testimony. Plaintiff was hired by defendant as a paraeducator in January 1983. Plaintiff completed probation and became a permanent employee in May 1983. Incident to her employment, she became a member of the Public Employees' Retirement System. A paraeducator works under the supervision of a classroom teacher and is described in defendant's written job description as a paraprofessional. Among the duties of a paraeducator are assisting a teacher in: teaching; implementing a child's individualized education program "through instruction in a wide variety of activities, such as…