Stanford Law School - Robert Crown Law Library

Filed 5/25/06

IN THE SUPREME COURT OF CALIFORNIA

JOHN STEPHENS,
Plaintiff and Appellant,
S129794
v.
) Ct.App.
5
F044123
COUNTY OF TULARE et al.,
Tulare
County
Defendants and Respondents. )
Super. Ct. No. 205376

We must decide whether a county employee was dismissed for disability
within the meaning of Government Code section 31725. If he was so dismissed,
because the county board of retirement ruled he was not entitled to a disability
retirement the county would be required to reinstate him to his old job, together
with back wages and benefits. Because we conclude the trial court ruled correctly
that the employee was not dismissed from his job, we reverse the decision of the
Court of Appeal.
FACTS
John Stephens began working for the Tulare County Sheriff-Coroner as a
detention specialist III in December 1994. He was assigned to the Bob Wiley
Detention Facility, where his job entailed working on the floors with jail inmates,
transporting inmates, and writing reports. His job also required him to carry a
firearm. In the course of his duties, in 1995 he suffered an injury to his right
thumb. In 1996 he injured his thumb again and spent some time away from work.
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When he returned to work, his employer modified his job to “light duty” pursuant
to the recommendation of his physician, Dr. John Edwards. In this new position,
Stephens was assigned to a housing unit control room, requiring him to open and
close the security doors in the jail for the other detention officers by pushing
buttons using both hands. It was anticipated that when the jail became fully
staffed, Stephens would rotate into the central control room, where his work would
also involve pushing a button to open a security door. Captain Janet Perryman
testified that the button-pushing duties in the control room of a housing unit and in
the central control room were not significantly different.
When Stephens complained his modified light duty was inconsistent with
the limitations recommended by Dr. Edwards, he was examined by a hand
specialist. The specialist’s June 17, 1997, report acknowledged Dr. Edwards’s
recommendation “that the client perform no longer than 15-20 minutes of upper
extremity activity at one period of time and then have a break,” but concluded:
“Currently the control room officer job is adhering to this prescription. The client
is able to do 5-15 minutes of hand tasks and then patrol the control room for one to
five minutes without using his hands. The client does use his hands frequently but
not at a constant rate and is able to take a break after 15-20 minutes of hand
activity.” (Italics added.) Following this report, Stephens apparently continued in
his modified light-duty position and was in fact rotated into the central control
room.
Stephens testified that in September 1997, while performing this modified
light duty, Sergeant Montoya, one of his supervising sergeants, approached him
and asked how he was doing. Stephens told him his thumb was bothering him, but
he denied he asked Sergeant Montoya to be relieved.
Sergeant Sheri Lehner, another of Stephens’s supervising sergeants, also
testified to events occurring in September 1997. She reported that Stephens had
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approached her and complained that “there was a misunderstanding as to what his
light duty was supposed to be,” and that “he was suffering from pain in his thumb,
due to his job assignment.” Sergeant Lehner confirmed that, following a shift,
Stephens’s thumb was in fact red and swollen. He told her he was not supposed to
use his thumb for more than 15 minutes at a time. Because persons performing
Stephens’s job worked 12-hour shifts, Sergeant Lehner thought it would be
infeasible for Stephens to take a break every 15 minutes.
Sergeant Lehner also testified that Stephens told her not to be “surprised
when things start happening” when he was rotated from the housing unit control
room into the central control room, that he would call his lawyer, and he would
“own the County” because in his last lawsuit, which was successful, the trial court
had informed everyone that reassigning him would be considered a discriminatory
act.1 Stephens boasted of his attorney’s legal prowess and said that “this time
we’ll sue for money.” Sergeant Lehner reported this conversation to her superiors.
In light of Stephens’s complaints, Captain Perryman sent him a letter that
forms the basis of his claim he was dismissed from his job. The letter, dated
September 12, 1997, stated in pertinent part:
“You have been working in a modified work assignment (light duty) at the
Bob Wiley Detention Facility due to an injury to your right hand. Your doctor,
John Edwards, has described your restrictions as ‘no inmate contact, some right
hand activities―no more than (2) hours per day, writing limitations of 15-20
minute intervals, no power gripping or pulling of the right hand.’ The Department
has made efforts to accommodate your return to work and reviewed job

1
The lawsuit to which Stephens refers is not explained, although he had filed
eight different workers’ compensation claims between 1994 and 1997.
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assignments and duties performed in the Division. The tasks required in operating
a control room at the facility appeared to accommodate the doctor’s listed
restrictions for use of your right hand. You have in fact worked in a housing
control room for sometime [sic].
“On 9-8-97 you notified Sergeant C. Lehner that you believed there was a
misunderstanding about your light duty and the restrictions. It was your opinion
that working in Central Control would result in compromising those restrictions.
“You were assigned to Central Control and given the task of training
Detention Service Officer Rosario. You worked Central Control and when going
off duty on 9-10-97 you spoke to Sergeants Lehner and Montoya. You were asked
how your hand was and responded that it was swollen.
“Because of your statements we believe that we will not be able to provide
a modified work assignment at this time. This letter is to confirm to you that you
are not to return to work until further notice. At such time as your condition
improves and you are able to return to work with no restrictions, or improves to
the point that you are able to perform the ‘light duty’ tasks required in Central
Control without further complaint or injury, you will be expected to submit time
sheets reflecting OFF DUTY/SICK/PERSONAL. I understand you have an open
job injury claim for this problem ([Lab. Code, §] 4850) that has yet to be resolved.
Until notified by Worker’s Compensation we will expect your time sheets to
reflect use of your personal sick leave.”
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Captain Perryman testified:2 “The letter was generated . . . to make sure
that [Stephens] understood that our concern for him was that we not further injure
his thumb. And that he needed to do what had to be done in terms of return[ing]
to work, with no restrictions, as a . . . Detention Specialist [III], which is
commonly referred to as a gun-toter. Or to be well to the point where he could
serve in the capacity of a Detention Service Officer, which is the light-duty
position that we had temporarily provided him with.” Captain Perryman further
testified she did not intend the letter to be a “dismissal from employment”; it was
her understanding the letter left open the possibility of Stephens’s return to work
in either a light-duty capacity or performing the full range of duties as a detention
specialist III. She testified the sheriff’s department had taken no affirmative steps
to terminate Stephens and, when asked whether Tulare County had “actually
terminated him from [the] county payroll, paid him off for any accrued leave,” she
answered: “No, not at all.”
After receiving Captain Perryman’s letter, Stephens did not return to work.
Asked at trial whether he was terminated from his employment “shortly after
1997,” that is, after he received Captain Perryman’s letter, he replied: “Not to my
knowledge.” Asked whether he had ever received a termination notice, he replied:
“No. No termination.”
For the rest of 1997, and until December 19, 1998, Stephens received full
pay from Tulare County in the form of his sick and personal leave and then

2
By the time of trial, Captain Perryman had been promoted to assistant
sheriff in charge of adult jail facilities and her last name had changed to Hinesly.
We will continue to refer to her as Captain Perryman in this opinion, as that was
her name at the time of the events giving rise to this lawsuit.
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benefits pursuant to Labor Code section 4850.3 Following cessation of his section
4850 benefits in late 1998, he participated in vocational rehabilitation and was
trained to become a computer technician. After completion of that training,
Stephens twice sought positions with the county but was unsuccessful in obtaining
a job. He worked various part-time jobs with other, private employers in 1998;
during this time he also received a compromise and release for $7,000, settling one
of his workers’ compensation cases (see fn. 1, ante).
Stephens applied for a disability retirement with the Tulare County
Employees’ Retirement Association (TCERA) on November 18, 1998. While his
application was pending, Tulare County informed him of an opening for a job he
could perform consistent with his medical limitations, but withdrew the offer of
employment when the county decided not to fund the position. TCERA’s Board
of Retirement subsequently denied his application for a disability retirement, and
the superior court denied his petition for a writ of mandamus. He then sent a letter
to the Tulare County Sheriff-Coroner demanding reinstatement pursuant to
Government Code section 31725. He also filed a government tort claim, seeking
payment of retroactive wages pursuant to the same statute, which the county
denied.

3
Labor Code section 4850 provides: “(a) Whenever [a qualified law
enforcement officer] . . . is disabled, whether temporarily or permanently, by
injury or illness arising out of and in the course of his or her duties, he or she shall
become entitled, regardless of his or her period of service with the city, county, or
district, to a leave of absence while so disabled without loss of salary in lieu of
temporary disability payments or maintenance allowance payments under Section
139.5, if any, which would be payable under this chapter, for the period of the
disability, but not exceeding one year, or until that earlier date as he or she is
retired on permanent disability pension, and is actually receiving disability
pension payments, or advanced disability pension payments pursuant to Section
4850.3.”
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Stephens’s employer then sent him a letter dated December 5, 2002,
explaining that “As it is the decision of the Board of Retirement that you are not
substantially incapacitated, and thus able to work, the County is ready to reinstate
you to employment.” The letter asked him to contact a designated person “to
initiate an interactive review of restrictions per ADA/[FEHA], to discuss
arrangements for your return to work and to discuss your new assignment.” The
letter also gave Stephens the option of not returning to work and stated that if he
did not contact the designated person by December 20, the sheriff-coroner would
assume he was not returning. Stephens’s attorney contacted the designated person
to begin the process of reinstatement.
When Stephens had not been reinstated by May 23, 2003, he filed a petition
for writ of mandate in superior court, seeking reinstatement and repayment of back
wages and benefits pursuant to Government Code section 31725. On June 11,
2003, he received a response letter from the sheriff-coroner, informing him he had
been reinstated to the sheriff’s department. Stephens returned to work for the
sheriff’s department on July 1, 2003, and performed the same modified light duty
the sheriff-coroner had made available in 1997. Asked whether “prior to returning
in July of ’03 . . . did your condition change such that you could work the light-
duty functions that you had been working in ’97,” he replied: “There was no
change. It has been the same.”
The trial court issued an alternative writ but ultimately denied relief. The
court concluded Captain Perryman’s September 12, 1997, letter “contemplates that
Mr. Stephens is still an active County employee utilizing leave time. At no time
was Mr. Stephens advised in this letter that he was dismissed from employment.
Although the letter does state ‘do not return to work until further notice,’ it goes
on to tell Mr. Stephens that he will be placed on sick leave until he can report back
to work under certain conditions. These were conditions that only Mr. Stephens
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could determine. . . . Mr. Stephens always had a doctor’s release and could have
gone back to work if he had informed the County that he was willing and able. At
no time did Mr. Stephens advise the County that he considered this a dismissal.”
The trial court found that because Stephens did not seek a new medical evaluation
of his thumb after receiving Captain Perryman’s letter or seek reinstatement with
the county during this time period, “the only reasonable determination the court
can make is that Mr. Stephens could have been performing these duties all along
but never complied with the letter of September 12, 1997, by informing the
County that he could perform.”
The Court of Appeal reversed, and we granted review.
DISCUSSION
Resolution of the present dispute requires us to interpret the meaning of
Government Code section 31725 (section 31725). That statute provides in full:
“Permanent incapacity for the performance of duty shall in all cases be determined
by the board.[4] [¶] If the medical examination and other available information do
not show to the satisfaction of the board that the member[5] is incapacitated
physically or mentally for the performance of his duties in the service and the
member’s application [for a disability retirement] is denied on this ground the
board shall give notice of such denial to the employer. The employer may obtain
judicial review of such action of the board by filing a petition for a writ of
mandate in accordance with the Code of Civil Procedure or by joining or

4
Reference to the “board” refers to the county board of retirement. (Gov.
Code, § 31459, subd. (c).)
5
Reference to a “member” refers to members of a retirement association
(Gov. Code, § 31470), including “[a]ll sheriffs, undersheriffs, chief deputies
sheriff, jailers, turnkeys, deputies sheriff . . .” (id., § 31470.2).
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intervening in such action filed by the member within 30 days of the mailing of
such notice. If such petition is not filed or the court enters judgment denying the
writ, whether on the petition of the employer or the member, and the employer has
dismissed the member for disability[,] the employer shall reinstate the member to
his employment effective as of the day following the effective date of the
dismissal.” (Italics added.)
In other words, 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.”
(§ 31725.) Section 31725, where applicable, has been interpreted to require not
only reinstatement but also payment of wages and benefits that would have
accrued during the period of dismissal. (Leili v. County of Los Angeles (1983) 148
Cal.App.3d 985 (Leili); see generally Tapia v. County of San Bernardino (1994)
29 Cal.App.4th 375, 387 (Tapia) [applicant must comply with statutory claim
presentation requirements].)
That Stephens applied for a disability retirement, the county board of
retirement denied his application on the ground he was not disabled, and all
appeals are final are not disputed by the parties, thus satisfying the first three
prerequisites to reinstatement under section 31725. The only question remaining
is whether the county dismissed Stephens for disability within the meaning of
section 31725.
“When interpreting statutes, ‘we follow the Legislature’s intent, as
exhibited by the plain meaning of the actual words of the law . . . . “This court has
no power to rewrite the statute so as to make it conform to a presumed intention
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which is not expressed.” ’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 59.) “Because the statutory language is generally the most reliable
indicator of that intent, we look first at the words themselves, giving them their
usual and ordinary meaning and construing them in context. [Citation.] If the
plain language of the statute is clear and unambiguous, our inquiry ends, and we
need not embark on judicial construction. [Citations.] If the statutory language
contains no ambiguity, the Legislature is presumed to have meant what it said, and
the plain meaning of the statute governs.” (People v. Johnson (2002) 28 Cal.4th
240, 244.)
Applying these principles here requires us to discern the plain meaning of
the word “dismissed” as used in section 31725. To “dismiss” means to “send or
remove from employment.” (Webster’s 3d New Internat. Dict. (2002) p. 652.) As
used in connection with section 31725, “dismissed,” “terminated,” and “released”
all share a common meaning. Those terms describe a circumstance in which the
employment relationship, at the employer’s election, has ended. 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. Because section 31725 is concerned only with
the consequences of “[p]ermanent incapacity for the performance of duty,” we can
reasonably assume the statute addresses permanent, not merely temporary,
absence from employment. An employee who is temporarily absent from the
workplace due to illness or vacation, where both employer and employee
understand the employee will return to work when the reason for the leave ceases,
would have no need to pursue a disability retirement before the board of
retirement.
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In addition, a dismissal as contemplated by section 31725 requires an
employer action that results in severance of 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. An employee who is uncertain of his or her status
or the existence of an employment relationship is entitled to seek clarification.
Was Stephens dismissed from his job? Plainly not. The trial court found
he injured himself on the job, took medical leave, and then returned to work
subject to medical restrictions concerning the use of his right thumb. His
employer provided him with a modified light-duty position consistent with those
restrictions. Sergeant Lehner testified Stephens nevertheless complained that he
was reinjuring his thumb even in this modified light duty, that she observed his
thumb was in fact red and swollen, and that he told her his modified light duty was
inconsistent with his medical restrictions. Stephens admitted he told Sergeant
Montoya that his thumb bothered him. These express and implied factual
determinations are supported by substantial evidence and are thus entitled to
deference on appeal. (Alvarez-Gasparin v. County of San Bernardino (2003) 106
Cal.App.4th 183, 188.)
Stephens’s complaints led Captain Perryman to send him the September 12,
1997, letter that forms the crux of this case. The critical portion of the letter
provides: “Because of your statements we believe that we will not be able to
provide a modified work assignment at this time. This letter is to confirm to you
that you are not to return to work until further notice. At such time as your
condition improves and you are able to return to work with no restrictions, or
improves to the point that you are able to perform the ‘light duty’ tasks required in
Central Control without further complaint or injury, you will be expected to
submit time sheets reflecting OFF DUTY/SICK/PERSONAL. I understand you
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have an open job injury claim for this problem ([Lab. Code, §] 4850) that has yet
to be resolved. Until notified by Worker’s Compensation we will expect your time
sheets to reflect use of your personal sick leave.” (Italics added.)
The letter thus directed Stephens to leave work temporarily until his
medical condition improved and required him to report his absence from the
workplace on his timesheets to reflect that he was either off duty or taking sick or
personal leave. As the trial court concluded: “At no time was Mr. Stephens
advised in this letter that he was dismissed from employment.” This factual
conclusion was supported by substantial evidence. Captain Perryman testified that
she did not intend the letter to be a termination of Stephens’s employment, that she
anticipated he would return to the job when he had been rehabilitated to the point
that he could perform the modified light duty tasks required in the central control
room, and that he was never taken off the county’s payroll or had his accrued
leave time paid off. That the letter expressly instructed Stephens to use his sick
leave while away from work is a clear indication it did not constitute a dismissal.
Stephens himself testified he did not consider the letter a “termination” nor did he
ever receive a formal notice of termination. The county’s subsequent offer to
bring him back in a different modified position is consistent with the view he had
not been dismissed from employment.
In concluding Stephens was dismissed, the Court of Appeal below reasoned
that, although he was provided with modified light duty working in the housing
unit control room, his employer insisted that he rotate into the central control
room, where his duties would allegedly be physically inconsistent with his
documented medical restrictions, thus placing Stephens in the untenable position
of either accepting assignment to duties that would injure him or declining to do so
and absenting himself from the job.
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We respectfully disagree. The county assigned Stephens to perform
modified light duty, and the trial court concluded that he “always had a doctor’s
release to perform the modified duties” and his doctor “never changed his
recommendation as to Mr. Stephens’ ability to perform this modified position.”
Although Stephens testified the duties in the central control room were more
strenuous because there was “more activity” and “[m]ore use of the hand,” and
that he could perform the modified light duty in the housing unit control room but
not in the central control room, the trial court was not obligated to accept these
assertions in the face of other, contrary testimony. For example, Captain
Perryman testified: “The primary difference between a person working in a
control room of a housing unit and central control, would be who they dealt with
and the request to open or close the door or to communicate over the intercom.
[¶] In a housing unit, a large percentage of those transactions would have to do
with inmates; and in central control you would deal exclusively with staff . . . .”
Significantly, when asked whether the actual physical requirements of using your
thumb to push buttons was “significantly different” from one assignment to the
other, Captain Perryman answered: “No.” As the parties presented conflicting
evidence on this point, we defer to the trial court’s implicit factual determination
as supported by substantial evidence.
The Court of Appeal also criticized the trial court’s determination that
Stephens could have returned to work anytime between 1997 and 2003 if he had
chosen to do so, finding this an “illusory” option, as the September 12, 1997, letter
premised Stephens’s return on his being able to work in the central control room
“without further complaint or injury.” But as we explained, ante, substantial
evidence supports the trial court’s factual determination that the physical demands
of working in the central control room were no different than in the housing unit
control room.
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In sum, we conclude that applying the plain meaning of section 31725 to
the facts of this case supports the county’s position that it never dismissed
Stephens from his job. Our conclusion is consistent with the legislative intent
underlying the statute, as demonstrated by its legislative history. “According to
the Report of the Assembly Committee on Public Employment and Retirement
. . . , the purpose of amending the Retirement Act was to eliminate severe financial
consequences to an employee resulting from inconsistent decisions between an
employer and the Retirement Board as to whether a particular employee is
incapacitated and unable to perform the duties of his position. Prior to the 1970
amendment of section 31725 [which added the statutory language at issue in this
case], a local government employer could release an employee [under a local
county rule] and the Retirement Board could deny the employee a disability
pension on the ground he was not disabled. The Assembly committee found that,
‘As a result of such disputes, approximately one percent of the applicants for a
disability retirement pension have found themselves in the position of having
neither a job, nor a retirement income.’
“The committee concluded[:] ‘Thus, to remedy this problem, which . . . is
virtually a matter of life and death for the very few individuals involved each year,
the Public Employees’ Retirement System should be given authority . . . to
mandate reinstatement of an individual—upon a finding of a lack of disability—
but that the employing agency have the right of appeal to the courts.’
“The committee continued: ‘Such a method provides a system which
involves only two administrative or judicial proceedings instead of three,’ since
the employee does not have to sue in court on a writ to secure an order to
reemploy or an order to pay the disability allowance.” (McGriff v. County of Los
Angeles (1973) 33 Cal.App.3d 394, 399-400 (McGriff).)
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In enacting section 31725, the Legislature was thus concerned that disputes
between local governments and county retirement boards over whether an
employee was disabled left such employees in limbo, having neither employment
nor disability income. The Legislature solved this problem by giving the
retirement board the final word on whether an employee was disabled and
providing that dismissed employees must be reinstated if the board found they
were not disabled, while also giving local governments the right to take a judicial
appeal of the board’s decision. In this way, the Legislature ensured that county
employees dismissed for disability would have either employment or disability
income and not be left destitute. (Alvarez-Gasparin v. County of San Bernardino,
supra, 106 Cal.App.4th at p. 187 [“The County cannot deny an employee both
disability retirement and employment”].) Nothing in this history suggests the
Legislature intended the statutory reinstatement remedy to apply to employees
who do not face this involuntary financial dilemma, that is, those who are not
actually dismissed from their jobs. Nor does this legislative history indicate the
Legislature was concerned about employees who choose voluntarily to leave the
county’s employ. Neither type of employee faces the dilemma of losing a job due
to a disability whose existence the board of retirement declines to acknowledge.
Stephens falls outside the class of employees the Legislature intended to
protect by enacting section 31725. Captain Perryman, informed by Sergeant
Lehner that Stephens was reinjuring his thumb even in the modified light duty to
which he was assigned, instructed Stephens to leave work and take sick leave until
his medical condition improved to the point where he could return without concern
for reinjury. Not only did Captain Perryman’s letter presuppose Stephens had the
ability to return in the future but, by reporting his time off as sick leave, Stephens
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was not faced with the loss of income. Stephens simply did not face the financial
dilemma the Legislature intended to address in section 31725.6
Although Stephens admits he “was not fired in the sense that his
employment status was not terminated,” he contends case law has enlarged the
meaning of “dismissed” to extend to situations lacking a formal termination or
dismissal. The Court of Appeal agreed, summarizing this legal authority thusly:
“We begin by reiterating some principles gleaned from the earlier section 31725
‘dismissal’ cases. First, ‘dismissed’ does not mean the same thing as ‘terminated’
or ‘fired.’ An employee may be effectively dismissed if the county simply takes
him or her off active duty (Leili[, supra, 148 Cal.App.3d 985]), or the employee
voluntarily places himself or herself on a disability leave (Hanna [v. Los Angeles
County Sheriff’s Dept. (2002) 102 Cal.App.4th 887;] Tapia[, supra, 29
Cal.App.4th 375;] Phillips [v. County of Fresno (1990) 225 Cal.App.3d 1240]).
This is so even if the employee eventually returns to work because the disability is
temporary (Raygoza [v. County of Los Angeles (1993) 17 Cal.App.4th 1240;]
Phillips), because the employee has been retrained or rehabilitated, or because the
employer is able to make the appropriate accommodations. Moreover, an out-of-
work employee is no less ‘dismissed’ because the county has no position available
compatible with the employee’s work restrictions (Hanna, Tapia, Raygoza,
Phillips), or even because the employee is, or appears to be, disabled

6
Because Stephens claims the September 12, 1997, letter from Captain
Perryman effectively dismissed him from his employment, this case, contrary to
the Court of Appeal’s apparent view, does not pose a situation in which an
employee chooses to absent himself from work, believing himself too disabled to
work in the only position provided by the employer. Although other remedies
may apply in such a case, the remedy provided in section 31725 applies only when
an employer dismisses an employee for disability.
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notwithstanding the retirement board’s contrary conclusion (Raygoza, Phillips).
In short, the fact Stephens was never formally terminated is immaterial to our
analysis.” (Italics added.)
Relying on this expansive interpretation of section 31725, Stephens
maintains Captain Perryman’s September 12, 1997, letter effectively dismissed
him. As we explain, although we agree a qualifying dismissal within the meaning
of section 31725 need not be accompanied by any particular formality, some form
of a termination is nevertheless required. To the extent Stephens and the Court of
Appeal assert otherwise, they overstate the reach of prior judicial interpretations of
section 31725.
Stephens relies initially on two early cases, McGriff, supra, 33 Cal.App.3d
394, and Leili, supra, 148 Cal.App.3d 985. In McGriff, the employee was
“released” from her job “due to her medical incapacity” (McGriff, at p. 395)
pursuant to a local county civil service rule. The retirement board denied her
application for a disability retirement because she was not permanently disabled,
and the county denied her request for reinstatement. The trial court ruled she was
entitled to reinstatement as of the date she was released from her job and the
appellate court affirmed, but without discussing whether a release due to medical
incapacity constituted a dismissal within the meaning of section 31725.
Leili is similar. In that case, a county firefighter “was taken off active
duty” (Leili, supra, 148 Cal.App.3d at p. 987) after he sustained back injuries, but
denied a disability retirement when the county board of retirement found he was
not disabled. The Leili court ordered the firefighter reinstated pursuant to section
31725. Although the court did not discuss whether being “taken off active duty”
was equivalent to being “dismissed,” it spoke in terms of the employee being
“released” and “terminated.” (Leili, at p. 988, describing McGriff, supra, 33
Cal.App.3d 394.)
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As a later court explained, “Neither McGriff nor Leili directly addresses the
meaning of the word ‘dismissed’ in the context of section 31725—both cases
assume the employee had been dismissed.” (Phillips v. County of Fresno, supra,
225 Cal.App.3d at p. 1255 (Phillips).) Indeed, from all that may be discerned
from either court’s opinion, the employer’s action releasing or removing the
employee from active duty in fact constituted a dismissal. Both cases impliedly
assume no formal dismissal from the job is necessary in order to activate section
31725’s protections; an employer’s action that has the same effect will do.
Neither case is inconsistent with our conclusion in the instant case that a dismissal
(in some form) is required before section 31725 can apply.
Raygoza v. County of Los Angeles, supra, 17 Cal.App.4th 1240, on which
Stephens also relies, is inapposite. Raygoza, a deputy marshal, suffered a
documented injury to his psyche that precluded him from using a weapon. His
employer, the Marshal of the Municipal Courts of Los Angeles County, notified
him that he was “relieved of duty (fired)” from his job. (Id. at p. 1242, italics
added.) The dispute centered not on whether Raygoza was in fact dismissed, but
on whether the marshal was required to reinstate him when no position compatible
with his work restrictions was available.
Stephens also relies on Phillips, supra, 225 Cal.App.3d 1240, in which the
employee, a deputy sheriff, voluntarily requested and received a medical leave of
absence without pay. (Id. at p. 1245.) The county board of retirement denied his
application for a disability retirement, as well as his petition for rehearing. Two
days later Phillips sought reinstatement. The county refused, but the trial court
directed it to reinstate him as of the day he sought to end his voluntary leave of
absence. (Id. at p. 1248.) The Court of Appeal affirmed, explaining that although
“[i]t is undisputed the County never formally terminated Phillips nor did the
sheriff formally remove him from active duty” (id. at p. 1254), section 31725
18

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applies to more than the narrow situation in which employment has been
“expressly terminated by the employer” (Phillips, at p. 1255).
Both Stephens and the Court of Appeal below mischaracterize the holding
in Phillips and thus overstate its importance. The appellate court below opined
that Phillips held an employee may be “effectively dismissed” within the meaning
of section 31725 if the employee voluntarily places himself or herself on disability
leave. Stephens similarly asserts that “Phillips expanded the application of
§31725 to situations where the employee had initially voluntarily left work rather
than to only situations where the employer had initiated the action to take the
employee off work.” But the holding in Phillips is not so broad.
In affirming the trial court’s ruling, the Phillips court signified it agreed the
employee was entitled to reinstatement as of the date he sought reinstatement, as
the trial court held, not as of the date he voluntarily took a medical leave without
pay. In other words, when Phillips requested and was granted a leave of absence,
he neither quit nor was he dismissed; the county merely allowed him to absent
himself from work. Although, at his request, his absence was without pay, the
agreement between himself and the county, characterized as a “leave,” reflected a
mutual understanding that he intended, and would be allowed, to return. It was
when the county denied Phillips’s request to return to his job that it acted in a way
that severed the employment relationship. Phillips does not hold that an
employee’s voluntary decision to take leave time is the equivalent under section
31725 of being dismissed for disability. It holds only that a failure to reinstate an
employee, following a period of permissive, voluntary leave, can constitute a
“dismissal” despite the absence of a formal termination or firing.
Thus understood, Phillips has no application to the instant case. Whereas
in Phillips the employee sought to return to his job after a period of voluntary
medical leave and claimed he was “dismissed” as of the day his employer refused
19

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to reinstate him, Stephens never sought to return to his job between 1997 and
2003, but claims he was “dismissed” as of the day following his receipt of Captain
Perryman’s September 12, 1997, letter. Because the county never refused to
reinstate Stephens, but simply told him to take sick leave until his medical
condition allowed him to perform the modified light duty recommended by his
physician, Phillips is not inconsistent with our conclusion that the county never
dismissed Stephens within the meaning of section 31725.
To the extent Stephens claims two forms sent to him by AIGCS, Inc., the
workers’ compensation claims administrator for the County of Tulare, effected his
dismissal, we reject that claim as well. At the threshold, that Stephens preserved
this claim for appeal by raising it in the trial court is not clear. Although he
mentions the two insurance forms in his trial court pleadings, the thrust of his
argument was focused on the September 12, 1997, letter from Captain Perryman.
Nevertheless, assuming for argument the claim is properly before us, we reject it.
Stephens maintains he was dismissed by two AIGCS forms he received; each had
a box checked next to a statement indicating the county “Does not have a job
available within your work restrictions.” That an insurance company can serve as
proxy for the employer, such that a simple checked box can “dismiss” an
employee within the meaning of section 31725, seems doubtful. In any event, the
trial court ruled a position had always been available for Stephens were he willing
to return to work in the central control room and implicitly found Stephens
understood that, notwithstanding the AIGCS forms. Substantial evidence supports
the trial court’s conclusion: Stephens’s assignment to the central control room
involved the same physical requirements as his modified light duty in the housing
unit control room, those duties did not change and, when he returned to the job in
2003, he operated under the exact same medical restrictions. Stephens presented
no evidence that, despite these facts, he nevertheless believed he had been
20

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dismissed by the two AIGCS forms. The record thus supports the trial court’s
ruling that the county in fact had a position available that accommodated
Stephens’s then documented medical restrictions.
In sum, although the phrase “dismissed . . . for disability,” as used in
section 31725, has been interpreted to encompass employer actions that are
functionally equivalent to terminating an employee, Stephens cites no authority,
and we have found none, holding that an employer functionally or effectively
terminates an employee by telling the employee to go out on sick leave until his or
her medical condition abates sufficiently to enable return to the job. As the court
said in Alvarez-Gasparin v. County of San Bernardino, supra, 106 Cal.App.4th at
page 188: “There is simply no showing that plaintiff was dismissed, expressly or
impliedly.” Accordingly, we agree with the trial court that Captain Perryman’s
September 12, 1997, letter did not dismiss Stephens from his employment and that
the protections of section 31725 were never triggered.
CONCLUSION
The decision of the Court of Appeal is reversed, and the matter is remanded
to that court with directions to affirm the trial court’s decision denying the petition
for writ of mandate.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
21

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Stephens v. County of Tulare
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 123 Cal.App.4th 964
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S129794
Date Filed: May 25, 2006
__________________________________________________________________________________

Court:

Superior
County: Tulare
Judge: Patrick J. O’Hara

__________________________________________________________________________________

Attorneys for Appellant:

Thomas J. Tusan for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Kathleen Bales-Lange, County Counsel, Ron Rezac, Chief Deputy County Counsel, and Crystal E.
Sullivan, Deputy County Counsel, for Defendants and Respondents.

Kathleen Bales-Lange, County Counsel (Tulare) and James G. Line, Deputy County Counsel, for Tulare
County Employees’ Retirement Association as Amicus Curie on behalf of Defendants and Respondents.

Raymond G. Fortner, Jr., County Counsel (Los Angeles) and Stephen R. Morris, Principal Deputy County
Counsel, for California State Association of Counties and the California League of Cities as Amici Curiae
on behalf of Defendants and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Thomas J. Tusan
1233 West Shaw Ave., Suite 100
Fresno, CA 93711
(559) 225-2510

Crystal E. Sullivan
Deputy County Counsel
2900 West Burrel
County Civic Center
Visalia, CA 93291
(559) 795-0972

Stephen R. Morris
Principal Deputy County Counsel
648 K.H. Hall of Administration
500 West Temple Street
Los Angeles, CA 90012-2713
(213) 974-1957

---

Opinion Information

Date:	Docket Number:
Thu, 05/25/2006	S129794

Disposition
May 25 2006	Opinion: Reversed

Dockets
Dec 7 2004	Petition for review filed   counsel for respondents COUNTY OF TULARE
Dec 8 2004	Record requested
Dec 13 2004	2nd record request
Dec 15 2004	Received Court of Appeal record   one doghouse
Dec 27 2004	Answer to petition for review filed   By counsel for appellant {John Stephens}.
Jan 27 2005	Time extended to grant or deny review   to March 7, 2005.
Feb 23 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Feb 23 2005	Letter sent to:   Parties re: Certification of Interested Entities or Persons.
Mar 9 2005	Certification of interested entities or persons filed   By counsel for respondent.
Mar 14 2005	Certification of interested entities or persons filed   By counsel for appellant.
Mar 23 2005	Opening brief on the merits filed   respondent, County of Tulare.
Apr 21 2005	Answer brief on the merits filed   By counsel for appellant {John Stephens}.
May 6 2005	Reply brief filed (case fully briefed)   appellant County of Tulare
May 13 2005	Filed letter from:   counsel for respondent re: cover of brief's firm's telephone number correction.
Jun 3 2005	Received application to file Amicus Curiae Brief   State Association of Counties, and the Calif. League of Cities supporting respondents County of Tulare [app/brief separate]
Jun 3 2005	Received application to file Amicus Curiae Brief   Employee's Retirement Association in support of Respondent {County of Tulare}
Jun 7 2005	Permission to file amicus curiae brief granted   Employee's Retirement Association in support of respondent.
Jun 7 2005	Amicus curiae brief filed   Employee's Retirement Association in support of respondent. Answer is due within twenty days.
Jun 13 2005	Permission to file amicus curiae brief granted   State Association of Counties and the California League of Cities in support of respondent.
Jun 13 2005	Amicus curiae brief filed   State Association of Counties and the California League of Cities in support of respondent. Answer is due within twenty days.
Jun 16 2005	Response to amicus curiae brief filed   By counsel for appellant {John Stephens} to AC Brief filed by Tulare County Employee's Retirement Association.
Jul 1 2005	Received:   Letter from Appellant (Stephens) counsel, Thomas J. Tusan, regarding the amicus letter filed by the County of Los Angeles.
Jul 6 2005	Response to amicus curiae brief filed   Appellant (Stephens) to AC Brief filed by California State Assoc. of Counties and California Leagues of Cities by counsel. 40.1(b).
Feb 8 2006	Case ordered on calendar   March 7, 2006, at 1:30 p.m., in San Francisco
Feb 15 2006	Filed letter from:   Thomas J. Tusan, counsel for appellant Stephens "Plaintiff & appellant, John Stephens, hereby stipulates to allow Justice Ming W. Chin to participate in the determination of this matter although he will not be present at the time of oral argument."
Feb 17 2006	Filed:   Application to divide oral argument time, filed by appellant John Stephens Asking to divide time with Steven R. Pingel, counsel for amici California Employment Lawyers Association, Consumer Attorneys of California, and California Applicants' Attorneys Association.
Feb 17 2006	Filed letter from:   County Counsel, on behalf of respondent County of Tulare "... Our office stipulates to Justice Ming W. Chin's participation in the case even though he will not be present at oral argument; ..."
Feb 21 2006	Filed:   Application for leave to divide oral argument time, filed by County of Tulare Asking to divide time with Stephen R. Morris, counsel for amici California State Association of Counties and California League of Cities.
Feb 22 2006	Order filed   The request of counsel for appellant in the above-referenced cause to allow two counsels to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amici curiae California Employment Lawyers Association, Consumer Attorneys of California, and California Applicants' Attorneys Association 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Feb 22 2006	Order filed   The request of counsel for respondent in the above-referenced cause to allow two counsels to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amici curiae California State Assoc. of Counties and Calif. League of Cities 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Feb 23 2006	Filed:   Objection to application of plaintiff and appellant to divide time at oral argument. filed by Ron Rezac, Chief Deputy County Counsel, on behalf of respondent County of Tulare
Feb 24 2006	Filed:   Appellant's reply to respondent's objection to Application to Divide Time at Oral Argument.
Feb 28 2006	Order vacated (case still open)   The order of this court filed February 22, 2006, granting appellant's applicaton to divide time for oral argument is hereby vacated without prejudice to a new applicatoin in the event that Mr. Steven R. Pingel associates as counsel with appellant's attorney of record.
Mar 7 2006	Cause argued and submitted
May 25 2006	Opinion filed: Judgment reversed   and the matter is remanded to the Court of Appeal with directions to affirm the trial court's decision denying the petition for writ of mandate. Opinion by Werdegar, J. -----joined by George, C.J.,Kennard, Baxter, Chin, Moreno & Corrigan, J.
Jun 27 2006	Remittitur issued (civil case)
Jul 3 2006	Received:   Receipt for Rmittitur from CA5.

Briefs
Mar 23 2005	Opening brief on the merits filed
Apr 21 2005	Answer brief on the merits filed
May 6 2005	Reply brief filed (case fully briefed)
Jun 7 2005	Amicus curiae brief filed
Jun 13 2005	Amicus curiae brief filed
Jun 16 2005	Response to amicus curiae brief filed
Jul 6 2005	Response to amicus curiae brief filed

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