Filed 8/28/14 Gilbert v. County of San Bernardino CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SHARON GILBERT, D065797

Plaintiff and Appellant,

v. (Super. Ct. No. CIVDS1005837)

COUNTY OF SAN BERNARDINO,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Bernardino County, Bryan

F. Foster, Judge. Affirmed.

Faunce, Singer & Oatman, Edward L. Faunce and Larry J. Roberts, for Plaintiff

and Appellant.

Meyers, Nave, Riback, Silver & Wilson, Arthur A. Hartinger and Jesse Lad, for

Defendant and Respondent.

Sharon Gilbert appeals from a judgment denying her petition for a writ of mandate

directing the County of San Bernardino (County) to apply for her disability retirement under Government Code section 31721, subdivision (a).1 The trial court denied the

petition based on its finding the County did not consider or treat Gilbert as disabled under

section 31721(a) and thus the County had no statutory obligation to file the disability

retirement application.

On appeal, Gilbert contends: (1) the court erred in concluding section 31721(a)

was triggered only if the County considered Gilbert to be "permanently" disabled; and (2)

there was insufficient evidence supporting the court's factual conclusion that the County

did not consider Gilbert to be disabled. We reject Gilbert's contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties presented the case to the court based on the written record, consisting

of declarations, deposition transcripts, and documentary exhibits. After considering this

evidence and oral argument, the court issued a statement of decision detailing its factual

findings. Both parties accept these factual findings as true for purposes of this appeal.

As do the parties, we summarize the relevant facts based primarily on the court's

statement of decision, and will discuss additional facts in the record as relevant to the

legal issues.

The County has employed Gilbert since 1980 and she is a member of the San

Bernardino County Employees Retirement Association (Retirement Association). In

1998, Gilbert worked as an employment services specialist in the Transitional Assistance

1 All further unspecified statutory references are to the Government Code. For convenience, the word subdivision will be omitted from the statutory references.

2 department in Victorville. This department is responsible for administering the County's

support programs to persons in need of financial, nutritional, and/or medical assistance.

Gilbert's duties involved assisting welfare recipients and other needy clients to find

employment.

Beginning in 2005, Gilbert believed she was being harassed by her supervisors

and other employees, and developed a " 'depressive reaction.' " In October 2006,

Gilbert's treating doctor "removed her from work" based on this condition.

When Gilbert returned to work about six weeks later, she requested a transfer from

the Victorville office. The County agreed, and transferred her to the Transitional

Assistance office in Del Rosa. Less than three months later, Gilbert filed an internal

complaint against her Del Rosa supervisor. In response, the County reassigned Gilbert to

a different supervisor in the Del Rosa office.

Shortly after, in May 2007, Gilbert was diagnosed with depression and "taken off

work by her treating psychiatrist." Several months into this medical leave, the County

notified Gilbert she had exhausted all of her leave time, and offered Gilbert four options:

(1) resign; (2) request additional "Medical Leave of Absence"; (3) complete an

application to determine eligibility for disability retirement; or (4) participate in a process

to determine possible work accommodations if her treating medical providers determined

that she had "specific permanent and stationary restrictions."

Gilbert chose to request a further medical leave of absence, which was approved.

She was then placed on temporary medical leave through August 2008.

3 While on medical leave, Gilbert was treated by several physicians. In April 2008,

a clinical psychologist classified Gilbert as " 'Temporarily Partially Disabled' " and

concluded she could return to work in July 2008 if she worked no more than 25 hours per

week with close supportive supervision. (Italics added.) In August 2008, an orthopedist

diagnosed Gilbert with repetitive motion injury and chronic neck and back injury and

opined that Gilbert was " 'Temporarily Partially Disabled' " and could return to work with

restrictions. (Italics added.)

The next month, in September 2008, Gilbert requested to return to work, provided

it was not in a Transitional Assistance office. The County agreed and placed Gilbert in

the County's "Modified Duty Program," which is designed to accommodate work

restrictions on a temporary basis. As part of this program, Gilbert was assigned to the

Arrowhead Regional Medical Center, where she remained in her prior work classification

(employment services specialist) at the same pay rate. In this program, her work

restrictions included no heavy lifting, no repeated bending and reaching, limited

keyboarding, and a flexible work schedule. The Modified Duty program has a time limit

of 180 days.

In April 2009, Gilbert asked to return to the Del Rosa Transitional Assistance

office because she was "bored" with her current duties. The County indicated that it

needed to be informed of any needed work restrictions or accommodations. Gilbert saw

an Agreed Medical Evaluator, who concluded Gilbert had reached her " 'maximum

medical improvement' " and no longer required future medical care.

4 In October 2009, Gilbert was medically evaluated by an orthopedist. The

orthopedist gave Gilbert work restrictions, consisting of no more than 20 minutes of

continuous typing and various lifting limitations. Gilbert then met with the County as

part of its interactive accommodation process. At this meeting, Gilbert and County

representatives agreed that the orthopedist's restrictions could be accommodated and

Gilbert would return to her employment services specialist position at a Transitional

Assistance office beginning October 26, 2009. Gilbert specifically agreed in writing that

the proposed "restrictions do not appear to violate essential functions" of her employment

services specialist job. Gilbert was told to report to the Transitional Assistance office on

October 26.

However, within several days, Gilbert saw her own psychologist, who diagnosed

Gilbert with "symptoms of depression," classified Gilbert as " 'temporarily totally

psychologically disabled,' " and provided a note stating Gilbert was unable to return to

the Transitional Assistance office "per Doctor's order." Gilbert was then placed " 'off-

work' " pending further information regarding her work status.

The next month, in November 2009, Gilbert requested a meeting to tender her

resignation but she did not appear at the scheduled meeting. Meanwhile, the County

attempted to accommodate Gilbert's work restrictions at the Transitional Assistance

office and in January 2010, offered her an alternate position working as a workforce

development specialist at a similar classification and pay rate as her former job. Gilbert

consented to be medically evaluated before beginning this position, but then missed the

5 exam. Gilbert then submitted a series of " 'off-work' " orders lasting through March 5,

2010.

Three weeks later, Gilbert informed the County that she was permanently

precluded from returning to her occupation because of her psychological condition. The

County responded by asking for documentation of this claim, but Gilbert did not provide

any supporting information. Shortly after, Gilbert submitted to a return-to-work

examination with psychiatrist Dr. Barbara Strong, who conducted an extensive

examination and concluded Gilbert could return to work with work restrictions.

Specifically, Dr. Strong diagnosed Gilbert with a depressive disorder, but opined that

"Ms. Gilbert is able to return to work on a full-time basis, but should adhere to the

following work restrictions: [¶] 1. Cannot work with her former manager, Gustavo

Cisneros. [¶] 2. Needs to work in a less stressful work environment." (Italics added.)

The County agreed to the restrictions and scheduled another interactive accommodation

meeting to place Gilbert in an accommodated position similar to her prior employment

services specialist position.

Gilbert failed to attend this meeting, and instead filed her writ petition, seeking to

compel the County to file a retirement disability application on her behalf under section

31721(a). As discussed below, section 31721(a) requires the County to file for disability

retirement on behalf of an employee "believed to be disabled . . . . "

In her supporting memorandum, Gilbert argued the County was under a mandatory

duty to apply for this disability retirement because "by its words and actions" it had

treated her as being unable to perform her employment services specialist job. She

6 highlighted the medical opinions that she suffered from: (1) psychological disabilities

based on her depression diagnosis; and (2) physical disabilities based on her orthopedist's

diagnosis and work restrictions. Relying on these opinions and the County's acceptance

of her requests for work transfers, medical leaves, and a modified duty status, Gilbert

argued the County was aware she was disabled and could not perform the duties of her

usual job position.

The County raised numerous arguments in opposition. Of relevance here, the

County asserted it had no statutory obligation to file for disability retirement under

section 31721(a) because its actions and statements reflected its good faith belief that

Gilbert could return to her employment services position with reasonable

accommodations and it continued to believe these accommodations would satisfy

Gilbert's medical needs. In support, the County produced hundreds of pages of

documentation regarding Gilbert's employment/medical history and its responses to this

information.

After evaluating the written record and holding a hearing, the court agreed with

the County's position. Based on the factual record (summarized above), the court found

Gilbert did not meet her burden to show the County considered or treated her as disabled

within the meaning of section 31721(a), concluding "[t]he evidence shows that the

County was willing to accommodate the restrictions provided by Gilbert's doctors and

return her to her prior position . . . ." The court explained:

"[U]ntil the filing of this writ petition, the County consistently attempted to accommodate Gilbert and return her to work. . . . [C]ontinuing 'off work' orders from her doctors has prevented a

7 return. None of these orders however ever indicated the situation was permanent and stationary.

"Gilbert's argument that the County considers her disabled is not supported. The only evidence she has submitted consists of vague statements in her petition and declaration, without a single document in support. In contrast, Gilbert's statements are contradicted by the substantial evidence submitted by the County . . . . [¶] Gilbert's claims and statements are not consistent and are found not credible."

DISCUSSION

I. Legal Principles Governing Writ of Mandate

Code of Civil Procedure section 1085(a) allows a court to issue a writ of mandate

to "compel the performance of an act which the law specially enjoins, as a duty resulting

from an office, trust, or station . . . ." To prevail in a writ of mandate proceeding, the

petitioner has the burden to show (1) a clear, present and usually ministerial duty; and (2)

a clear, present and beneficial right to performance. (Catalina Investments, Inc. v. Jones

(2002) 98 Cal.App.4th 1, 6.)

II. Legal Principles Governing County's Duty To Apply for Disability Retirement

The County employee retirement system is governed by the County Employees

Retirement Law of 1937 (CERL). (§ 31450 et seq.) Gilbert brought her writ of mandate

action under Article 10 of CERL. This article "provides the mechanism for disability

retirement of qualified county employees." (Rodarte v. Orange County Fire Authority

(2002) 101 Cal.App.4th 19, 23.)

The first code section of this article, section 31720(a), states in relevant part that a

member who is "permanently incapacitated for the performance of duty shall be retired

for disability regardless of age" if the injury arose during the course of employment and

8 the member's duties contribute to the incapacity. (Italics added.) Section 31721(a), the

provision at issue here, identifies the persons with standing to apply for this disability

retirement: "A member may be retired for disability upon the application of [1] the

member, [2] the head of the office or department in which he [or she] is or was last

employed, [3] the board or its agents, or [4] any other person on his [or her] 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 . . . ."

(Italics added.)

The parties agree that the "shall apply for disability retirement" language in the

fourth category imposes on the County a ministerial duty to apply for disability

retirement if certain contingencies exist, including if the County "believe[s]" the

employee "to be disabled . . . ." (§ 31721(a); see Lazan v. County of Riverside (2006)

140 Cal.App.4th 453, 460 (Lazan) [interpreting identical statutory language applicable to

the state employees retirement system].) The courts apply an objective standard to

measure this "belief," namely whether the public entity, by its words and actions,

manifested a belief that the employee is permanently incapable of performing his or her

job duties and thus eligible for retirement under section 31720. (See Lazan, supra, 140

Cal.App.4th at pp. 461, 464.) Permanent incapacity exists if the employee's injury results

in a substantial inability to perform his or her usual duties. (Curtis v. Board of

Retirement (1986) 177 Cal.App.3d 293, 297-298; Mansperger v. Public Employees'

Retirement System (1970) 6 Cal.App.3d 873, 876-877.)

9 Under these standards, an employee is not permanently incapable of performing

her duties if an employer accommodation would allow the employee to continue

performing the essential functions of the job. (See Schrier v. San Mateo County

Employees' Retirement Assn. (1983) 142 Cal.App.3d 957, 961-962 (Schrier); Harmon v.

Board of Retirement (1976) 62 Cal.App.3d 689, 694-696; see also Thelander v. City of El

Monte (1983) 147 Cal.App.3d 736, 744-745; Craver v. City of Los Angeles (1974) 42

Cal.App.3d 76, 79-80; accord San Bernardino County Employees Retirement

Association, Procedures for Disability Retirement Applications and Formal Hearings,

Rule 1(e).)2 Thus, as Gilbert acknowledges, section 31721(a) does not trigger a

mandatory duty for an employer to file for disability retirement if an employer disability

accommodation "will not . . . substantially alter the employee's usual duties." If an

injured worker can perform light duty assignments and this assignment includes the

essential duties ordinarily required in the usual job position, the employee is not entitled

to a disability retirement under CERL. (See Hosford v. Board of Administration (1978)

77 Cal.App.3d 854, 865; Harmon v. Board of Retirement, supra, 62 Cal.App.3d at pp.

694-696; O'Toole v. Retirement Board (1983) 139 Cal.App.3d 600, 603; see also Craver,

supra, 42 Cal.App.3d at pp. 79-80; Barber v. Retirement Board (1971) 18 Cal.App.3d

273, 279.) Public policy supports continued employment of people who are able to work

with employer accommodations. (Thelander v. City of El Monte, supra, 147 Cal.App.3d

2 We grant the County's unopposed request that we take judicial notice of the Retirement Association's procedures for determining retirement eligibility under the applicable CERL statutes. 10 at pp. 745-746; Schrier, supra, 142 Cal.App.3d at pp. 961-962; O'Toole v. Retirement

Board, supra, 139 Cal.App.3d at p. 603.)

III. Permanent Disability

As a major predicate underlying her appellate arguments, Gilbert contends an

employer must file for disability retirement under section 31721(a) even if an employee

is only temporarily disabled. This argument is without merit. As discussed above,

section 31721(a) is specifically tied to section 31720. Section 31721(a) provides the

procedural rules for determining standing to obtain a determination regarding whether a

member shall be retired for disability under section 31720. Section 31720 states that a

member is entitled to disability retirement if the member is "permanently incapacitated

for the performance of duty." (Italics added.) Thus, section 31721(a)'s references to the

parties with standing to apply for this disability retirement necessarily refer to a

permanent disability. "An employee who is temporarily absent from the workplace due

to illness . . . where both employer and employee understand the employee will return to

work when the reason for the [absence] ceases, would have no need to pursue a disability

retirement before the board of retirement." (Stephens v. County of Tulare (2006) 38

Cal.4th 793, 802.)

Contrary to Gilbert's assertions, the plain meaning of section 31721 does not refer

to a "temporary" disability. The statute uses the word "disability," without identifying the

nature of the disability as temporary or permanent. Where statutory language allows

more than one reasonable construction, we are required to consider the statute in the

context of the entire statutory framework, and must consider and harmonize statutes that

11 cover the same subject. (Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th

175, 186.) Under this principle, section 31721(a) necessarily requires an employer to

apply for section 31720's permanent-disability retirement only if the employer believes

the disability may be "permanent" within the meaning of section 31720. Requiring an

employer to file for disability retirement for an employee's temporary disability—which

cannot as a matter of law be the basis for a section 31720 disability retirement—would be

a waste of public resources. Further, imposing an obligation to file for an employee's

retirement based on a temporary disability would be contrary to the public policy of

encouraging employers to provide reasonable accommodation for disabled workers. We

decline to interpret the statute in such a manner.

The court properly applied a "permanent disability" standard in determining

whether a duty to file an application was triggered under section 31721(a).3

IV. Sufficiency of Evidence Supports Court's Factual Conclusions

Gilbert alternatively challenges the sufficiency of the evidence to support the

court's conclusion that the County—by its words and actions—did not manifest a belief

that Gilbert was incapable of performing her job duties with accommodations.

3 Gilbert argues a "permanent disability" under section 31720 includes a disability for an "extended and uncertain" period. She relies on CERL statutes permitting the reemployment of a disabled employee if the disability no longer precludes the employee from performing the work. (See § 31729.) We need not decide this issue because even assuming a permanent disability includes one for an "extended and uncertain" period, we would reach the same result here because as explained below there was substantial evidence that the County was willing and able to accommodate Gilbert's disability in her usual job position. 12 "[W]here a trial court's factual finding is challenged on the ground there is no

substantial evidence to sustain it, the power of the reviewing court begins and ends with

the determination as to whether, on the whole record, there is substantial evidence,

contradicted or uncontradicted, that will support the trial court's determination.

[Citation.] [¶] The appellate court views the evidence in the light most favorable to the

respondents [citation], resolves all evidentiary conflicts in favor of the prevailing party

and indulges all reasonable inferences possible to uphold the trial court's findings

[citation]." (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc.

(1999) 73 Cal.App.4th 517, 528.)

In her appellate briefs, Gilbert concedes the County did not manifest a belief that

she was unable to perform her job when it transferred her to the Del Rosa office, and then

reassigned her to work under another supervisor within that office. But she argues that

the County indicated a belief that her disability prevented her from performing her usual

duties: (1) in May 2007 when it granted her medical leave based on her diagnosed

depression; and (2) in September 2008 through October 2009 when it assigned her to the

Arrowhead Medical Center on modified duty status. These arguments are without merit.

First, the court had a substantial evidentiary basis to find the County's agreement

to allow Gilbert to go on medical leave for her diagnosed depressive condition did not

demonstrate its belief that she was permanently unable to perform the job. At the time,

Gilbert's psychiatrist had diagnosed Gilbert with a temporary disability and thus Gilbert

requested a temporary leave from work. An employer's agreement to provide a limited-

time medical leave does not support an inference the employer believes the employee is

13 permanently unable to perform the job. The CERL retirement statutes were enacted to

ensure that workers who were "permanently incapacitated" from performing the work

would be " 'retired for disability' " to ensure they receive a pension and to

"effect[uate] . . . efficiency and economy in public service by replacement of

employees . . . who have become superannuated or otherwise incapacitated." (Curtis,

supra, 177 Cal.App.3d at pp. 297-298.) This policy is inapplicable when a "county

employee elects to take a medical leave (paid or unpaid)" and it is contemplated that "the

employee will be reinstated upon his or her ability to return to work." (Davis v. Los

Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1133.)

Moreover, several months into her medical leave, the County gave Gilbert various

options, including to participate in a process to identify work accommodations. The

court had a reasonable basis to find the County's conduct in providing this option to

Gilbert demonstrated the County's willingness to effectively accommodate Gilbert's

claimed disability. Additionally, the fact that Gilbert declined to apply for disability

retirement bolsters the County's understanding that Gilbert was not in fact permanently

disabled because she did not consider herself as such.

We likewise conclude the court had a substantial evidentiary basis to find Gilbert's

assignment to the Arrowhead Medical Center did not reflect the County's belief that she

was permanently incapable of performing her employment services specialist job. First,

the evidence showed that Gilbert remained in the same job classification and pay while

she worked in this assignment. The evidence further showed that although she initially

began in a data entry position, she was later placed in a job that was functionally

14 equivalent to her prior employment services specialist position. As Gilbert

acknowledged at her deposition, in May 2009 her Arrowhead Medical Center job

assignment, "was . . . like an employment services spot in that I was working with

patients and working with agencies, trying to get people on to some kind of program so

that their bills would be paid." If an employer can place an employee in a job position

that includes the central tasks of his or her prior job, the employee is not "permanently

incapacitated for the performance of duty" as that phrase is used in section 31720.

(Schrier, supra, 142 Cal.App.3d at pp. 961-962; see Craver v. City of Los Angeles, supra,

42 Cal.App.3d at pp. 79-80; Barber v. Retirement Board, supra, 18 Cal.App.3d at p.

278.)

Equally significant, at the end of the Arrowhead Medical Center placement,

County officials met with Gilbert to engage in an interactive process to determine

whether the County could accommodate her continuing claimed disabilities. At that

point, Gilbert's identified disability was based on a note from Gilbert's orthopedist, who

stated that she could type no more than 20 minutes continuously and had various lifting

restrictions. At the conclusion of this meeting, Gilbert expressly agreed in writing that

these restrictions could be accommodated when she returned to her employment services

specialist position at a Transitional Assistance office. Gilbert also specifically agreed in

writing that the proposed "restrictions do not appear to violate the essential functions of

the [employment services specialist] position." Based on these facts, the court could have

reasonably concluded that the County's actions reflected its understanding that Gilbert

was not permanently disabled and was not incapacitated to perform the job.

15 It was only after that meeting that Gilbert produced a note from her psychiatrist

stating she was unable to return to her employment services specialist position because

she was "temporarily totally psychologically disabled." During the next several months,

the County made numerous attempts to meet with Gilbert to attempt to accommodate this

claimed disability and in fact offered her an alternative position working as a workforce

development specialist at a similar classification and pay rate as her former job. Gilbert

rebuffed these attempts. Gilbert also failed to produce any medical evidence showing her

claimed psychological disability was permanent and prevented her from working in her

prior position. At that point, a psychiatrist performed an extensive examination, and

concluded that although Gilbert had a depressive condition, she was medically able to

return to work on a full-time basis, with two restrictions (less stressful environment and

not working under a particular supervisor). The County agreed to the restrictions, but

Gilbert refused to return to work. She then filed her writ petition seeking to compel the

County to apply for her permanent-disability retirement.

These facts are materially different from the circumstances in Lazan, supra, 140

Cal.App.4th 453, relied upon by Gilbert. There, the county officials repeatedly told the

employee (a deputy sheriff) "they could not accommodate her work restrictions" and

there was no equivalent position available. (Id. at p. 461, italics added.) Additionally,

the evidence showed the alternative position later offered by the county—a "temporary"

clerical position in the human resources department—was inadequate because it was

temporary and did not provide the same promotional opportunities as her former job. (Id.

at pp. 461-462.) Further, the undisputed medical evidence (of which the county was

16 aware) established that the deputy sheriff's disability was permanent, not temporary. (Id.

at p. 462.)

In contrast, Gilbert was offered the same position as her prior job, and the

accommodations offered (including limited computer work and lifting requirements, the

assurance she would not be placed with a particular supervisor, and placement in a less

stressful environment) would not change her primary duties. Additionally, there was

substantial evidence to support a conclusion that Gilbert's job would provide similar

promotional opportunities as her prior job.

Based on the record before us, the court had ample evidence to conclude Gilbert

did not meet her burden to show the County—by its words and actions—considered her

to be permanently disabled, i.e., incapable of substantially performing the essential

attributes of her usual job.4

4 Based on this conclusion, we do not reach the County's alternative argument that it had no duty to file a retirement application under section 31721(a) because it had not discharged Gilbert from her position and was not "about" to separate her from her employment. 17

DISPOSITION

The judgment is affirmed. Appellant to bear respondent's costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P.J.

MCINTYRE, J.

18