CARI MсCORMICK, Plaintiff and Appellant, v. CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Defendant and Respondent.
A154236
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
October 25, 2019
CERTIFIED FOR PUBLICATION; (Lake County Super. Ct. No. CV 416903)
On appeal, McCormick claims that the trial court‘s decision must be reversed because it applied the wrong legal standard. We agree. We hold that employees are eligible for CalPERS disability retirement under
I. FACTUAL AND PROCEDURAL BACKGROUND
McCormick began working for Lake County in 2002. Her primary job duties involved appraising real property for property-tax purposes. She performed most of her work in an office in the Lakeport courthouse, although she sometimes conducted field inspections.
In 2010, McCormick started to experience physical pain throughout her body and feel “constantly fatigued.” Her symptoms worsened at the end of 2011, and on April 10, 2012, she could not finish a full day of work. On the previous day, the building had to be evacuated because of fumes caused by the roof being tarred. A consistent “horrible smell” persisted, and other people complained as well. McCormick felt much better if she was at home or outside, and she began working only half days.
When McCormick originally sought medical treatment, she was led to believe that the problem was hormonal. In May 2012, she had a hysterectomy and recovered at home for six weeks, during which she felt much better. When she went back to work, however, “the smell was still there,” and her symptoms returned when she was in the office. Her superiors moved her to different lоcations in the courthouse, but the changes did not help. She used about 500 accrued hours of leave.
McCormick was eventually told by her superiors that she “was a liability” and “should stay home.” She filed a claim for workers’ compensation and, beginning in late 2012, took an extended leave of absence under the Family Medical Leave Act. She continued to ask for accommodations, such as permission to telecommute, believing she “just needed to be somewhere where [she] felt safe, knowing that [she] was able to breathe the air.” But her superiors declined to let her work anywhеre other than in the courthouse.
As part of the workers’ compensation process, McCormick was tested for allergies and examined by a specialist in environmental health, who told her that her problems were caused by chemical exposure. Testing of the courthouse revealed no mold and showed acceptable air quality, however, and her
In late 2013, McCormick submitted an application for disability retiremеnt to CalPERS.3 In the application, she stated her disability was “[respiratory] and systemic health problems as a result of exposures in indoor environment” at the courthouse. She also explained she could “work in another building as long as [she] remain[ed] asym[p]tomatic” but her employer “would not provide [her] a place outside” the courthouse. CalPERS denied the application in December 2014.4
McCormick appealed the decision, and an administrative hearing on the appeal was held in June 2016. In addition to her own testimony about her condition, McCormick relied on medical evidence from Massoud Mahmoudi, D.O. Dr. Mahmoudi examined McCormick in February 2013, in connection with her workers’ compensation claim, and diagnosed her with “[a]llergic rhinitis” and an “allergic-like reaction of unknown etiology.” The specific trigger of her symptoms was unclear, although they were associated with her workplace, and he concluded that “avoidance [of] the work . . . environment [was] the best remedy.”
In his initial report, Dr. Mahmoudi concluded that McCormick was “temporarily partially disabled” but did not have a “permanent impairment.” At the hearing, he explained he had assumed in forming his initial assessment that she would be able to find a different location in which to work. While his diagnosis remained unchanged, he had since concluded that McCormick was permanently disabled to the extent she was “unable to work [at the courthouse] due to her symptoms.”
CalPERS presented medical evidence from Soheila Benrazavi, M.D., who examined McCormick in June 2014. The exam revealed no physical abnormalities, and Dr. Benrazavi concluded that McCormick did not have any physical or mental condition that would prevent her from performing her job duties. At the hearing, Dr. Benrazavi explained that, while there was no doubt McCormick was experiencing real symptoms that were associated with her workplace, “if the environment can be amended or . . . accommodations [could be provided] to help her, then she would not be disabled.”
The ALJ issued a proposed decision denying the appeal in July 2016. Although there was no dispute that McCormick had a legitimate medical
McCormick then filed a petition for a writ of administrative mandate, which the trial court denied in February 2018. Characterizing the evidence as “essentially uncontroverted,” the court framed the determinative issue as “[t]he legal issue . . . whether an incapacity sufficient to enable a person to obtain disability retirement can be confined to a certain restricted environment.” After observing that the “answer . . . depends primarily on the size and scope of the particular environment involved,” the court determined that the rеlevant question was “whether or not the environment that triggers the disability is one that can be remedied or obviated“:
“And both of the doctors’ opinions categorized Ms. McCormick‘s disability as temporary. Both of them opined that . . . there was nothing they could find in their examination of Ms. McCormick that would prevent her from performing all of the listed duties required of her, if the offending environment, . . . the Lake County Courthouse, was purged of the offending triggers. Or, secondarily, [if] she could be transferred to a different location so as to avoid those offending triggers.
[¶] . . . [¶]
“Both doctors basically said, ‘Get [McCormick] out of the courthouse and there are no usual duties of an Appraiser III that she can‘t do.’ The failure to accommodate [her] is the problem, in my view, not her inability to perform physically the various duties required of her in that position.”
II. DISCUSSION
A. General Legal Standards.
1. Standards of review.
In her petition for a writ of administrative mandate, McCormick sought to overturn the Board‘s decision as an abuse of discretion under
We agree with the trial court, however, that the essential issue presented here is a legal one: whether McCormick is incapacitated within the meaning of
2. The interpretation of section 21156.
“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usuаl and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340 (Nolan).) In particular, “we give great weight to CalPERS‘s construction of California‘s Public Employees’ Retirement Law (PERL) (
“The test for determining whether an employee subject to [the PERL] is disabled is set forth in . . .
B. The Trial Court Assumed the Courthouse Was the Cause of McCormick‘s Symptoms, and It Made No Finding to the Contrary.
Initially, we address CalPERS‘s claim that we can affirm the denial of McCormick‘s petition on the basis that the trial court made a “factual finding” that “competent medical evidence established that [McCormick] was capable of performing her usual duties.” CalPERS cites the following two sentences from the statement of decision as constituting this finding: “Both [doctors] opined that . . . there was nothing that they could find in their examination of Ms. McCormick that would prеvent her from performing all of the listed duties required of her, if the offending environment, which just coincidentally is the building in which I sit, the Lake County Courthouse, was purged of the offending triggers. Or, secondarily, whether she could be transferred to a different location so as to avoid those offending triggers.”
These statements amount to the unremarkable observation that McCormick—as she effectively concedes—was physically capable of performing her usual
C. A CalPERS Member‘s Usual Duties Are Thosе Required by the Member‘s Actual Employer, and Lake County Required McCormick to Work at the Courthouse.
We now turn to the role of a member‘s employer in determining the scope of the member‘s usual “duties” under
Two years later, in response to Nolan, the Legislature amended
“Historically, CalPERS has interpreted duties ‘in the state service’ to mean the actual duties the member was performing when he or she became disabled with his or her current employer. In September 2004, however, the California Supreme Court, in the Nolan decision, interpreted this section more broadly thereby establishing a new standard that . . . must [be met] to qualify for disability retirement.
“Specifically, the Supreme Court changed the criteria for determining disability retirement by interpreting ‘in the state service’ to require a CalPERS member to show that he or she is not only substantially incapacitated from performing the usual duties of the position for his or her current employer, but also from performing the usual duties of the position for other CalPERS-covered employers. “. . . [T]he change proposed by this bill would serve to reaffirm CalPERS‘[s] historical practice that a member would be eligible for disability retirement provided he or she could show substantial incapacity to perform the usual duties required of his or her current employer.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assembly Bill No. 2244, as introduced Feb. 22, 2006.)
Here, the trial court remarked that it would “make[] no sense” if McCormick was to receive disability retirement and be able to “go across the street and get a job [with a different employer] as an appraiser with all of the same duties as an Appraiser III” and “be working doing the exact same things that she was found to have been disabled for and received a disability retirement for.” But as the legislative response to Nolan makes clear,
That this is the critical question is supported by Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201 (Lonicki). Lonicki addressed the scope of an employee‘s essential functions under the Moore-Brown-Roberti Family Rights Act (
CalPERS argues that the trial court found that McCormick “failed to establish that her usual duties must be performed at the [c]ourthouse.” But even if we were to agree that the court made such a finding, it would not be supported by substantial evidence. As CalPERS concedes and as we discuss in more detail below, Lake County denied McCormick‘s request for an accommodation, which included a request to work in a different location or envirоnment. No evidence was presented that Lake County was willing to allow McCormick to work somewhere other than at the courthouse.
At the administrative hearing, CalPERS introduced two documents explaining the duties of an Appraiser III, the last position McCormick held with Lake County. As CalPERS observes, and the trial court agreed, the documents—Lake County‘s summary of the Appraiser III position and a CalPERS form McCormick filled out that further detailed the physical requirements of her position—“do not mention that [McCormick‘s] job must be performed at a specific location.” CalPERS is incorrect, howеver, that these documents’ silence as to the work location establish that Lake County did not require McCormick to work in the courthouse as part of her usual duties.
Hosford v. Board of Administration (1978) 77 Cal.App.3d 854 is instructive. There, the Court of Appeal rejected arguments that a California Highway Patrol sergeant‘s usual duties should “be determined exclusively by use of the job description prepared by the State
Here, the two documents’ omission of any mention of the courthouse is insufficient evidence that McCormick‘s usual duties did not require her to work there. There is no question that an Appraiser III‘s duties included work in an office. Under the heading “Typical Working Conditions,” the summary of the position stated, “Work is performed in office and outdoor environments, continuous contact with other staff and the public.” (Some capitalization omitted.) If a position requires work in an office, and the employer has a particulаr office where that work is performed, it would be unreasonable to conclude, absent some evidence to the contrary, that the position‘s usual duties do not include working there. Moreover, the summary stated that the position required “continuous contact with other staff” and that training other staff was both a “distinguishing characteristic[]” and “important and essential dut[y]” of the position. (Some capitalization omitted.) This language clearly contemplated that an Appraiser III would spend at least some time in an office where other staff members also work. In short, there is no substantial evidence that McCormick‘s usual duties allowed her to work somewhere other than at the courthouse.
D. CalPERS Cannot Deny Disability Retirement on the Basis that a Member Could Perform His or Her Usual Duties with an Accommodation that Was Not Provided.
Finally, we turn to the determinative legal issue in this case: whether, as CalPERS argues and the trial court agreed, members are ineligible for disability retirement when they are ” ‘physically capable of performing all of the usual duties for their actual employer, and the only impediment to performing the duties is [the] employer‘s alleged failure to provide reasonable accommodations.’ ” We conclude that CalPERS may not deny disability
We begin by briefly reviewing the general requirement that employers accommodate employees who have a disability. The California Fair Employment and Housing Act (FEHA) “requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer‘s operation. (
Here, we are not asked to decide whether Lake County properly denied McCormick‘s request for an accommodation to work somewhere other than at the courthouse.6 Rather, we must decide what role, if any, the existence of a theoretical accommodation plays in determining a member‘s eligibility for
The Teachers’ Retirement Law demonstrates that the Legislature was fully capable of giving CalPERS authority to require members to seek an accommodation as a prerequisite for disability-retirement eligibility. But it did not do so. “When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning.” (People v. Trevino (2001) 26 Cal.4th 237, 242.) And even if
In sum, we conclude that her usual duties required McCormick to work in the Lakeport courthouse, and whether she could have performed her duties elsewhere is irrelevant to her eligibility for disability retirement under
The trial court‘s order denying the petition for writ of administrative mandate is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Humes, P.J.
WE CONCUR:
Margulies, J.
Sanchez, J.
Trial Court: Lake County Superior Court
Trial Judge: Hon. David W. Herrick
Counsel for Plaintiff and Appellant: Benjamin K. Karpilow, Law Office of Richard J. Meechan
Counsel for Defendant and Respondent: Matthew G. Jacobs, General Counsel, California Public Employees’ Retirement System; John Shipley, Senior Attorney, California Public Employees’ Retirement System