BALZARINI v. RETIREMENT BOARD OF SAN MATEO COUNTY RETIREMENT SYSTEM

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Court of Appeal, First District, Division 2, California.

Laurie L. BALZARINI and James R. Burns, Plaintiffs and Appellants, v. RETIREMENT BOARD OF SAN MATEO COUNTY RETIREMENT SYSTEM, Defendant and Respondent.

A034148.

Decided: August 24, 1987

Jones, Brown, Clifford & McDevitt, Yale I. Jones, San Francisco, for plaintiffs and appellants. James P. Fox, Dist. Atty., Thomas Daniel Daly, Asst. Dist. Atty., Redwood City, for defendant and respondent.

Former deputy sheriffs Laurie L. Balzarini and James R. Burns (claimants) appeal from judgments denying their petitions for writs of mandate which sought to review and set aside the decisions of defendant Retirement Board of the San Mateo County Retirement System (Board) that they are not entitled to service-connected disability retirement allowances.   We affirm the judgment.

The relevant facts are not in dispute. Balzarini and Burns were each employed as sheriff's deputies by the County of San Mateo.   During the course of their employment both deputies sustained injuries to their backs which disabled them from performing the full duties required of sheriff's deputies.   On the basis that permanent light duty positions were available in the sheriff's department within their physical limitations, the Board denied each deputy's application for service-related disability retirement.

With respect to the availability of light duty positions, evidence was presented that there were assignments within the Sheriff's Department that deputies must perform which can be filled by permanent limited duty personnel.   The Sheriff's Department has a practice of finding such assignments for deputies who have been industrially injured and who may have medical restrictions or disabilities.

Evidence was also introduced concerning promotional opportunities for permanent limited duty personnel to the rank of sergeant.   When the Sheriff's Department has a vacancy for sergeant, it notifies the personnel department to initiate an improvement and testing process.   After applicants have successfully passed the first set of tests given by the personnel department, he or she has an oral interview with a board which assesses the individual candidates.   Thereafter, a list of seven names is submitted to the sheriff from which he makes a selection.   The promotional examinations are open to all candidates for sergeant, regardless of physical fitness.   No physical ability examination is given for promotion;  nor does physical disability preclude applicants from participating in the testing process.   However, only 10 out of 49 sergeant positions in the department are available as limited duty assignments.

Based upon this evidence, the Board denied the claimants' applications for disability retirement, finding that the Sheriff's Department has maintained a practice of making permanent limited duty assignments available to deputies who have suffered incapacitating injuries, that such positions were available to the claimants and that claimants had the same promotional opportunities as other employees in the deputy sheriff classification.   Thereafter, the trial court, exercising its independent judgment, agreed with the findings of the Board and denied the claimants' petitions for writs of mandate.1

On appeal the claimants rely on Stuessel v. City of Glendale (1983) 141 Cal.App.3d 1047, 190 Cal.Rptr. 773, claiming that they are entitled to disability retirements because they do not have an equal opportunity to be promoted to the position of sergeant if they return to light duty assignments in the Sheriff's Department.

In addressing the claimants' contention we are guided by established rules governing appellate review.   Where, as here, “the superior court has rendered its judgment on mandamus and the judgment is appealed, the scope of appellate court review is limited to a determination of whether the evidence, viewed in the light most favorable to the respondent, sustains the findings of the trial court, resolving any reasonable doubts in favor of those findings.”   (O'Toole v. Retirement Board (1983) 139 Cal.App.3d 600, 602, 188 Cal.Rptr. 853.)

The permanent light duty doctrine was first given expression by this division in Barber v. Retirement Board (1971) 18 Cal.App.3d 273, 95 Cal.Rptr. 657.   Barber, a San Francisco fireman, suffered the loss of his right leg in a work-related injury.   Eventually he returned to work and was assigned to light duty administrative work.   Barber subsequently took a promotional examination, passed, and was appointed a probationary lieutenant.

The chief of the fire department sought to have Barber placed on disability retirement on the grounds that Barber could not perform “any and all duties performed by firemen.”   We determined that the chief's criteria were arbitrary and unreasonable in view of evidence that some men in the fire department were assigned to permanent limited duty positions.   We held it more reasonable to construe “duty” as used in the city charter as that “required to be performed in a given permanent assignment within the department.”   The pronounced rationale for the holding was the “well recognized public policy favoring the employment and utilization of physically handicapped persons.”   (Welf. & Inst.Code, § 10650.)

Following Barber, the second district held that a person “should not be retired if he can perform duties in a given permanent assignment with the department.   He need not be able to perform any and all duties performed by firemen or, in the instant case, policemen․  If a person can be employed in such an assignment, he should not be retired with payment of a disability retirement pension.”  (Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76, 80, 117 Cal.Rptr. 534.)

The “permanent light duty doctrine” was affirmed and expanded in Winslow v. City of Pasadena (1983) 34 Cal.3d 66, 192 Cal.Rptr. 629, 665 P.2d 1.   In Winslow, a police officer was granted a service-connected disability retirement “until further order of the Retirement Board.”   Four years later, a number of light duty positions were created in the police department, including that of desk officer, and Winslow was called back to duty.   The Supreme Court rejected Winslow's claim that such action impaired his vested pension rights, and sustained the trial court's findings that the retirement board retained authority to monitor and reinstate those employees who had been retired on disability.

There is no dispute in the present case that the San Mateo Sheriff's Department has an established practice of making permanent light duty assignments available to partially disabled deputies and such positions were available to claimants.   Such findings have been held sufficient to deny disability retirement.  (See, e.g., Winslow v. City of Pasadena, supra, 34 Cal.3d 66, 192 Cal.Rptr. 629, 665 P.2d 1;  O'Toole v. Retirement Board, supra, 139 Cal.App.3d 600, 188 Cal.Rptr. 853;  Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 133 Cal.Rptr. 154;  Barber v. Retirement Board, supra, 18 Cal.App.3d 273, 95 Cal.Rptr. 657.)

 Nevertheless, in Stuessel v. City of Glendale, supra, 141 Cal.App.3d at page 1051, 190 Cal.Rptr. 773 the Court of Appeal held that where an “employee retains his police officer classification, continues to receive the same salary and fringe benefits and has the same promotional opportunities as other employees in the police officer classification, he may be placed in such available permanent modified light duty position even though he no longer has the right to carry a firearm or make arrests as a police officer.”  (Emphasis supplied.)  Stuessel's failure to define “the same promotional opportunities as other employees in the police officer classification” has given rise to claimants' contention that they do not have equal promotional opportunities because if they were placed among the list of seven candidates for promotion to the rank of sergeant, there are only 10 out of 49 positions that they would be qualified to fill.   We find that claimants cannot make this assertion at this time and consequently must be denied disability pensions.

 In Barber, although the lieutenant was the beneficiary of the so-called permanent light duty doctrine, the administrative decision to compel his disability retirement was upheld on appeal.   The basis for doing so rested on the existence of substantial evidence that “there was no available lieutenancy within the department which Barber was physically capable of occupying.”   (Barber v. Retirement Board, supra, 18 Cal.App.3d at p. 279, 95 Cal.Rptr. 657.)   That is not the situation which confronts this court.   Here, such positions are available to partially disabled deputies who may compete without regard to their physical limitation.   Nevertheless, claimant Balzarini left her permanent light duty position in December of 1978 for maternity leave and never returned to work.   Similarly, claimant Burns left his desk job in 1980 and did not return to the position.   To grant these claimants disability retirement benefits on the grounds that they were denied the same promotional opportunities as other police officers in the same classification would make a mockery of judicially supported endeavors by governmental agencies to create meaningful work opportunities for the physically disabled.

 Were we to accept claimants' call for theoretical numerical equality in promotional opportunities, the permanent light duty concept would be virtually emasculated.   In the area of public safety employment we cannot imagine a situation where at least some, if not most, of the promotional positions would not be filled by applicants capable of assuming a full range of duties.   Thus, numerical promotional parity, in our judgment, can never be realized.   The governmental employer, unable to offer the partially disabled employee the same promotional opportunity to all positions without jeopardizing the efficiency of the department and the public safety, must then be excused from offering permanent light duty assignments if it were disposed to do so.   The ultimate loser is of course the fireman, police officer, deputy sheriff, etc., who elects to pursue his or her public safety career, as did Lieutenant Barber, in spite of his or her work-related partial disability, a situation which detracts from a public policy favoring employment and utilization of the physically handicapped. This we will not allow.

This is not to say that if, like Lieutenant Barber, a person holding a light duty assignment were to take a promotional examination, pass the examination but be denied a position at a higher classification because there are no light duty assignments available at the higher classification, he or she would not then be entitled to a disability pension.   However, these are not the circumstances presented in the present action.

The judgment is affirmed.

The County Employees Retirement Law of 1937, as amended, (Gov.Code, §§ 31450 et seq.) provides for disability retirement for any covered employee “permanently incapacitated for the performance of duty.” (Id., § 31720.)   The word “incapacitated” is not statutorily defined but has been judicially determined to mean “the substantial inability of the applicant to perform his [or her] usual duties.”  (Mansperger v. Public Employees Retirement System (1970) 6 Cal.App.3d 873, 876, 86 Cal.Rptr. 450, italics in original.)   No provision of the retirement law suggests that a disability retirement application may be denied if the partially disabled applicant is provided permanent light duty.   The employer's right to deny an application on this basis—the so-called “permanent light duty doctrine”—is a judicially developed concept first announced in Barber v. Retirement Board (1971) 18 Cal.App.3d 273, 95 Cal.Rptr. 657, an opinion of this court, and thereafter reaffirmed in a line of cases culminating in the California Supreme Court's opinion in Winslow v. City of Pasadena (1983) 34 Cal.3d 66, 192 Cal.Rptr. 629, 665 P.2d 1.

However, while many cases stand for the proposition that permanent light duty may be provided as an alternative to disability retirement, only one case, Stuessel v. City of Glendale (1983) 141 Cal.App.3d 1047, 190 Cal.Rptr. 773, addresses the conditions that a permanent light duty assignment must satisfy in order to serve as an alternative to disability retirement.1  Stuessel holds that a police officer may be placed in an available permanent modified light duty position even though he no longer has the right to carry a firearm or make arrests provided that he “retains his police officer classification, continues to receive the same salary and fringe benefits and has the same promotional opportunities as other employees in the police officer classification ․” (Id., at p. 1051, 190 Cal.Rptr. 773, italics added.)

On the theory that the same promotional opportunities “are available to partially disabled deputies who may compete without regard to their physical limitation” (maj. opn., p. 441), the majority concludes that claimants are not entitled to disability retirement benefits because they left their jobs without having sought promotion and been denied.   As will be seen the theory that promotional opportunities were truly available to claimants, which is the linchpin of the majority opinion, is simply impossible to reconcile with the facts of this case as set forth in the record and with common sense.

It must be understood, preliminarily, that in 1980, when claimants left their positions, the Sheriff's Department had no written or even unwritten policy regarding promotional opportunities for deputies on light duty assignment.   So far as the record discloses, the first time the department ever claimed that a deputy sheriff on light duty assignment had any opportunity for promotion was during the proceedings below, which commenced nearly two years after claimants left the department.

On September 8, 1982, then Sheriff John McDonald testified that at that time there were 45 sergeant positions in his department.   When asked “how many such positions are available to permanently restricted or handicapped individuals?,” the Sheriff responded that five were “probably” available for this purpose.   The Sheriff immediately added, however, that “I think a person that's on a permanent disability assignment would have a rather hard time competing with people that are not disabled for openings of higher ranks and higher responsibility.”   When asked “Has anybody to your knowledge or during your tenure as sheriff who had a permanent limited [disability] position as sheriff ['s] deputy ever been promoted to sergeant?” Sheriff McDonald responded:  “Not that I know of.”

Sheriff McDonald's testimony was amplified during an administrative rehearing in 1984.2  Captain Richard Platt, the person most familiar with the personnel practices of the Sheriff's Department, testified that at that time there were 49 sergeant positions in the San Mateo County Sheriff's Department;  that ten of these positions were light duty assignments open to partially disabled deputies;  that the remaining 39 positions were not available to such employees;  and that non-disabled deputies were eligible for all 49 positions.   At the time claimants left the department, there were approximately 350 deputies who at some point would be eligible for promotion to sergeant.   There were at least seven applicants for every sergeant position that became open.

Captain Platt also testified that although a limited physical disability would not automatically disqualify a deputy seeking promotion, “quite frankly, we have to look at the individual's physical ability to perform the tasks of a sergeant,” agreeing that “one of the things you would consider on making the [promotion] decision ․ would be the physical condition.”   Like Sheriff McDonald, Captain Platt was unaware of any instance in which a deputy in a light duty position had been promoted to sergeant.

The administrative record thus establishes that at all material times the Sheriff's Department had no policy protecting the promotional rights of disabled employees; that such employees suffered a competitive disadvantage in obtaining promotion as a result of their disability;  that disabled employees were theoretically eligible for promotion to far fewer positions than other employees and had to compete against the non-disabled even for those;  and that in the history of the department a disabled deputy had apparently never been promoted to sergeant.

In light of this evidence, which is essentially uncontradicted, it seems to me both unreasonable and unfair to conclude, as does the majority, that promotional positions “are available to partially disabled deputies who may compete without regard to their physical limitation.”  (Maj. opn., p. 441.)   Claimants are really being penalized for failure to assert a “right” they were never on notice they possessed and had good reason to believe was nonexistent, as indeed it was.

The fact that disabled deputies are not prevented from seeking advancement and may take the promotional examination does not, in the circumstances of this case, mean that promotional positions are genuinely “available.”   On this theory, which elevates pretext to principle, it would be permissible to adopt an employment or promotion policy limiting minority or women candidates to a small fraction of available positions, or to exclude them entirely, so long as applications from such persons were always accepted and there was no intent to discriminate.   Claimants' physical disabilities were as well known to their employer as would be race or sex.   The failure to test for a disqualifying characteristic that is already known should not prevent the courts from recognizing manifestly unequal treatment for what it is.   Claimants' chances of obtaining promotion to sergeant were so obviously remote that they should not be denied relief on the ground that they did not apply.

The trial judge implicitly acknowledged the force of claimants' argument.   He seems to have rejected it because, as he stated, “if I were to accept [the] position that equal opportunity employment means the ability to apply for and be promoted to all jobs, then it automatically emasculates the concept of limited duty assignment.” My colleagues clearly share this concern, as indicated by their statement that “[w]ere we to accept claimants' call for theoretical numerical equality in promotional opportunities, the permanent light duty concept would be virtually emasculated.” (Maj. opn., p. 441.)

The idea that claimants cannot prevail without granting “theoretical numerical equality in promotional opportunities” to all partially disabled county employees in light duty assignments, thereby “emasculating” the light duty concept, is in my view false and has been advanced in this case as a red herring.

Promotional opportunities need not be the absolute equivalent, either in number or in character, in order to treat disabled employees fairly and satisfy the legal test. For one thing, Stuessel itself does not require that disabled and non-disabled employees be treated exactly alike, as in that case the court rejected the argument that by depriving the police officer appellant of the right to continue to carry a concealed firearm and to make arrests the employer deprived him of important rights and opportunities available to other employees. The requirement of Stuessel that an employee provided a light duty assignment in lieu of a disability retirement must be provided “the same promotional opportunities as other employees” need not be rigidly applied.   The requirement can be met, in my view, by promotional and other employment opportunities that are substantially similar to those received by non-disabled employees, particularly with respect to the opportunity to advance to higher levels of responsibility, salary and other benefits.

This requirement need not be onerous. For example, one way in which the Sheriff's Department could provide disabled deputies substantially similar promotional opportunities would be to reserve only for them a number of sergeant positions proportional to the number of disabled deputies on light duty assignment.   In this manner such deputies would have roughly the same chance of promotion as non-disabled deputies;  and this could almost certainly be achieved by reserving fewer than the ten sergeant positions for which disabled deputies are now only theoretically eligible.

Claimants in this case were effectively barred from achieving the increased responsibilities and higher salaries that go with promotion to sergeant.   As much as I agree with the public policy that supports the limited duty assignment alternative to disability retirement (see Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76, 80, 117 Cal.Rptr. 534), and would like to advance that policy whenever possible, I am unwilling to do so where, as here, that can only be accomplished by distorting the meaning of words,3 by effectively repudiating Steussel (see fn. 4, post ), and by imposing on county employees an unfair burden never contemplated by the Legislature or by any other court.

The majority's lengthy discussion of our opinion in Barber v. Retirement Board, supra, 18 Cal.App.3d 273, 95 Cal.Rptr. 657, which is analytically irrelevant to the legal issue before us, simply provides an excuse to evoke “the well recognized public policy favoring the employment and utilization of physically handicapped persons.  (Welf. & Inst.Code, § 10650.)”  (Id., at p. 278, 95 Cal.Rptr. 657.)   The majority perverts that salutary policy by using it to prop up the implausible contention that disabled persons will benefit from the construction of their promotional opportunities.4  On the contrary, the majority opinion creates the very danger that the Steussel court anticipated and sought to avoid:  the danger that partially disabled employees will be shunted off to dead-end jobs to prevent them from obtaining the disability retirement benefits provided by the Legislature and thereby achieve cost savings.   The result reached by the majority, not that urged by claimants, “make[s] a mockery of judicially supported endeavors to create meaningful work opportunities for the physically disabled.”  (Maj. opn., p. 441.)

For the foregoing reasons, I would reverse the judgment.

FOOTNOTES

1.   In actuality, the trial court first granted a peremptory writ of mandate remanding the case to the Board in order to hold further hearings and respond to specific questions posed by the court.   For the purposes of this appeal, however, it is only necessary to consider the final judgment denying the claimants' petitions.

1.   Stuessel was a municipal police officer, not a county employee, and the case therefore involved Government Code section 21022, a provision of the Public Employees Retirement Law analogous to and for analytical purposes materially indistinguishable from Government Code section 31720, the provision of the County Employees' Retirement Law involved in the present case.

2.   In January 1984 claimants filed petitions for writs of mandate in the San Mateo Superior Court.   In September of that year the court granted the writs and ordered the Retirement Board to reconsider and hold further hearings on the questions “whether there were permanent light duty assignments available, and whether these assignments carried equal promotional opportunities.”

3.   According to Webster's Third New International Dictionary, the word “available” means something that is “immediately utilizable,” or “personally obtainable (as for employment).” Clearly, sergeant positions were never truly “available” to claimants or to any other partially disabled deputies in light duty assignments within the sense of this conventional definition.

4.   The majority states that:  “The governmental employer, unable to offer the partially disabled employee the same promotional opportunity to all positions without jeopardizing the efficiency of the department and the public safety, must then be excused from offering permanent light duty assignments if it is disposed to do so.” (Maj. opn., p. 442.)   This statement is, of course, based on the false notion that vindication of the promotional right established in Steussel requires “numerical promotional parity” which “can never be realized.”  (Ibid.)  The majority thus in effect declares that because the policy of equal promotional opportunity is impossible to realize, the right established in Steussel need not be enforced.

BENSON, Associate Justice.

SMITH, J., concurs.