RAVEN v. OAKLAND UNIFIED SCHOOL DISTRICT (1988)

A tenured teacher on sick leave for work-related stress or mental illness is entitled to reinstatement upon presentation of prima facie medical evidence of recovery sufficient to resume teaching.   In order to refuse reinstatement of the tenured teacher, the school district has the burden of proving mental incompetence to teach.   If it is demanded by the teacher, the district must comply with the procedural provisions of Education Code section 44942.   Sick leave payments, workers' compensation rights, teacher retirement benefits or a collective bargaining agreement may afford additional rights to those set forth in Education Code section 44942.

On February 17, 1982, plaintiff, a tenured teacher, suffered severe chest pains, nausea, and dizziness at work allegedly due to difficulties between her and Skyline's new principal.   The school nurse advised plaintiff to seek medical attention, and for the next 16 months Ms. Raven took sick leave from her position, receiving various benefits under the Oakland Unified School District's (district) collective bargaining agreement.

Plaintiff filed a workers' compensation claim for “injury” to “her psyche.”   Several physicians and psychiatrists examined plaintiff finding that her injury had been caused by her employment and that she was unable to return to work.   Defendant district stipulated to plaintiff's temporary disability and on February 7, 1983, the Workers' Compensation Appeals Board (WCAB) awarded her temporary disability indemnity, deferring any decision of permanent disability.

By June 10, 1983, plaintiff exhausted all benefits available from the district and reached an unpaid leave status, although she still received workers'  compensation benefits.   In September 1983, plaintiff applied for disability allowance with the State Teachers Retirement System (STRS).  Between September and December 1983, plaintiff spoke with the defendant's workers' compensation claims administrator requesting reinstatement, and on December 23, 1983, she sent a letter to Superintendent David Bowick informing him that her doctor, Roger Lauer, had permitted her to return to work.   This request was based on Dr. Lauer's December 16 report to the claims administrator stating, “I am not certain that she can weather the stress of returning to her regular work.   However, the circumstances are such that I think that she might be capable of returning to work and that she deserves an opportunity to try to do so․  [¶] Consequently, my recommendation is that an attempt be made to design a work program for her with effort being given to keeping the stress level as low as possible.”

In early 1984, plaintiff sought reinstatement from the district's personnel department, and was referred to Dr. Frederick Foston, a pediatrician serving as consultant to the district's personnel office.   Dr. Foston recommended that plaintiff return to her full-time position, provided that she continue to see Dr. Lauer “so that she can continue to handle stress in a positive manner,” and also recommended that she be assigned to another school.   In March 1984, the district's staff psychiatrist, Dr. Petrakis, again examined plaintiff pursuant to the workers' compensation proceedings, concluding that if plaintiff were permitted to return to work “she will be overwhelmed once again and likely incur further injury should she return to teaching.”   Dr. Petrakis has maintained this opinion throughout these proceedings.

On March 23, 1984, the Rehabilitation Bureau of the Division of Industrial Accidents, as part of the workers' compensation proceedings, found that plaintiff was a “qualified injured worker” “precluded, or likely to be precluded from returning to her usual and customary occupation ․ at the time of injury.”   The rehabilitation bureau recommended that plaintiff be afforded a trial return to work as the best means of rehabilitation.   Otherwise, they recommended that she seek other occupational alternatives.   Plaintiff then began receiving vocation rehabilitation benefits.

On April 4, 1984, the director of personnel for the district denied plaintiff's request for reinstatement.   He informed plaintiff that a trial return to work was not feasible for the district.   He further explained that a trial return to work posed a health risk to the plaintiff and could be detrimental to the students should the trial period not work out.

Plaintiff filed a grievance under the district's collective bargaining agreement on April 11, 1984, concerning the district's refusal to reinstate her to her teaching position.   On May 2, 1984, the arbitrator dismissed plaintiff's  grievance, finding that she had no “grievance” because she had not been terminated or suspended by the district;  furthermore the district had not treated her differently than it treated other teachers on leave due to psychological problems.   Plaintiff moved to vacate the arbitration award.   A hearing on the matter was scheduled for October 9, 1985, but on September 30, 1985, plaintiff's counsel took the motion off the calendar.

STRS denied plaintiff's application for disability allowance finding the “[i]ndependent psychiatric evaluation revealed no evidence of any significant psychiatric impairment․ [and] that you are not disabled and believe you should be given [an] opportunity to return to work.”   The district still refused to reinstate plaintiff despite this finding.

Between May 2 and November 28, 1984, plaintiff explored other employment opportunities with the help of the rehabilitation bureau.   On November 28, 1984, however, the bureau suspended further rehabilitation because of plaintiff's preoccupation with returning to her former teaching position with the district.   The bureau then ordered the district to pay retroactive temporary disability benefits for the period from November 1, 1983, through March 31, 1984.

Plaintiff appealed the rehabilitation bureau's November 28, 1984, order to the WCAB, arguing that the district refused to reinstate her without following hearing procedures specified in Education Code section 44942 and forced the suspension of her rehabilitation benefits.   Plaintiff also filed a grievance with the WCAB under Labor Code section 132a, alleging a violation of Education Code section 44942 and that the district's refusal to reinstate her was “solely because of her admitted industrial injury.”   The district argued that the WCAB had no jurisdiction over Education Code violations and denied violations of the Education Code and Labor Code section 132a.

Plaintiff has exhausted the administrative avenues available to preserve her rights as a tenured teacher.   She applied for and received disability through workers' compensation and participated in vocational rehabilitation with the rehabilitation bureau.   She applied for but was denied teachers' retirement benefits.   More importantly, plaintiff exhausted the grievance and arbitration procedures available to her under the district's collective bargaining agreement.

On January 31, 1985, plaintiff filed a petition for a writ of mandate in superior court, alleging that the district violated Education Code sections 44942 and 44955.   The WCAB proceedings were still pending when she filed her petition for writ of mandate.   On June 27, 1986, the WCAB ruled that  plaintiff suffers from a permanent partial disability, denied her request for reinstatement and rejected her retaliatory discrimination action under Labor Code section 132a.   On reconsideration, the WCAB judge affirmed the ruling on September 18, 1986.   Plaintiff appealed the finding to the WCAB and sought review in this court and the California Supreme Court.   The WCAB affirmed the ruling and her petitions for review were denied.

In the separate action, the superior court granted plaintiff's petition for writ of mandate, ordered the district to reinstate her, and awarded her backpay from January 31, 1985, with set-offs for permanent disability allowances and income from outside part-time employment.   Plaintiff appeals the backpay award, requesting that backpay be awarded from either June 1983 or some intermediate date, and also appeals the set-offs for earnings received from weekend meetings plaintiff attended as a member of the State Board of Landscape Architects and for permanent disability benefits she received under workers' compensation.   The district cross-appeals, arguing that plaintiff does not fall within the purview of the Education Code provisions, that workers' compensation is plaintiff's exclusive remedy, and that she is collaterally estopped from litigating the Education Code violations by the WCAB ruling.

I

Education Code section 44942 (hereafter section 44942) states procedural requirements if a certificated employee is suspended or transferred to other duties based on a mental illness that renders the employee incompetent to perform her duties.   First, the school district must give the employee a written statement of facts and an opportunity to explain or refute the charges within 10 days.  (§ 44942, subd. (b).)  If the district still decides to suspend or transfer the employee, the employee is entitled to be examined by three psychiatrists selected by her from a list of psychiatrists provided by the district.   The employee continues to receive her regular salary and all benefits of employment between the time of her suspension and the filing of the panel's report.  (§ 44942, subd. (c).)  The examination is conducted at the district's expense within 15 days of any suspension or transfer.   The employee is entitled to be represented by a psychiatrist of her choosing, and the employee's psychiatrist may also submit a report to the panel of psychiatrists.  (§ 44942, subd. (d).)  Within 10 days of the examinations, the panel must submit a written report to the district containing a finding on whether the employee suffers from a mental illness rendering her incompetent to perform her duties.  (§ 44942, subd. (d).)

If a majority of the psychiatric panel conclude that the employee is mentally competent, the district must eliminate all references to the  employee's suspension or transfer and immediately reinstate the employee to the same or a substantially similar position.  (§ 44942, subd. (e).)  If, on the other hand, the panel finds the employee incompetent to perform her duties, the district may place her on mandatory sick leave of absence.   Mandatory sick leave of absence may not exceed two years, and during that time the employee is entitled to sick leave, hospital and medical benefits accrued during her employment.  (§ 44942, subd. (f).)  None of these procedures were followed in this case.

Any employee placed on mandatory sick leave of absence may immediately demand a hearing.   If the employee demands a hearing, the district must file a complaint in the superior court setting forth the charges that the employee is incompetent to perform her duties.   The court must determine whether or not the charges are true, and if they are true whether they justify placing the employee on mandatory sick leave of absence.  (§ 44942, subd. (g).)

If the court finds that the employee was wrongfully placed on the mandatory sick leave of absence, the employee must be immediately reinstated to her position or a substantially similar position and all references to her placement on mandatory sick leave of absence must be eliminated from her employment record.  (§ 44942, subd. (h).)  If the court finds that the employee was properly placed on mandatory sick leave of absence or if the employee does not seek a hearing, the employee may, between six months and two years after the date she was placed on mandatory sick leave of absence, request a new panel of psychiatrists to examine her at the district's expense.  (§ 44942, subd. (i).)  If the original conclusion remains the same, the employee must remain on mandatory sick leave of absence for no longer than two years.   At the end of two years, the district must either rescind its action and reinstate the employee, or serve her with notice of intent to dismiss.  (§ 44942, subd. (i).)  If the psychiatric panel finds the employee mentally competent, the employee must be immediately reinstated to her position or a substantially similar position.  (§ 44942, subd. (j).)  Finally, all hearings and any actions taken pursuant to this section are to be conducted in an executive session of the district, and nothing that transpires at these sessions may be made public unless the employee requests such publication in writing.  (§ 44942, subd. (k).)

A

The burden of proving the employee's mental incompetence lies with the district.  (Board of Trustees v. Porini (1968) 263 Cal.App.2d 784, 790, 70 Cal.Rptr. 73.)   These procedural safeguards may not be waived, even by conflicting provisions in a valid collective bargaining agreement.    See Educ. Code, § 44924;  California Teachers' Assn. v. Parlier Unified School Dist. (1984) 157 Cal.App.3d 174, 183, 204 Cal.Rptr. 20 [finding nonwaiver provision of Educ. Code, § 44924 applies to collective bargaining agreements].)

The district argues that the procedures required by section 44942 do not apply to the plaintiff because she was not formally suspended, dismissed, or placed on mandatory sick leave of absence by the district's governing board.   The district relies on its collective bargaining agreement which provides that “[f]ollowing an absence of 30 days or more due to illness, the employee shall submit a physician's statement indicating the employee is able to return to normal duties.”   The district also relies on a separate provision of the collective bargaining agreement, pertaining to extended sick leave, which provides that “[r]eturn to duty is dependent upon the physician's statement of recovery and final approval of the District's physician.”   The district asserts that until Ms. Raven provides a doctor's statement of recovery, subject to final approval by the district's physician, she may not return to work.   The district also contends that since it has taken no formal action to suspend or dismiss Ms. Raven, she is not entitled to the procedural protections afforded by section 44942.   We disagree.

A permanent employee, such as a certificated tenured teacher, has a vested right to her position and may not be deprived of it without due process of law.  (Forker v. Board of Trustees (1984) 160 Cal.App.3d 13, 19, 206 Cal.Rptr. 303.)   In cases of mental incompetence, California courts have required compliance with various Education Code hearing procedures in order to satisfy due process.  (See id., at pp. 19–20, 206 Cal.Rptr. 303.)

Throughout the various administrative proceedings concerning Ms. Raven's receipt of disability benefits and her request for reinstatement to her teaching position, the conclusions drawn from psychiatric examinations of Ms. Raven have been inconsistent.   In 1982, Dr. Petrakis recommended that Ms. Raven could return to work so long as she received some reassurance from her supervisors that she was performing her duties adequately.   He advised, however, that she should be assigned to a different school within the district, or if that was not feasible she should be retrained for another occupation.   On January 11, 1983, Dr. Michael Goldfield concluded that Ms. Raven was still experiencing symptoms and recommended that she not return to work.   In 1983, plaintiff received ongoing treatment from Dr. Roger Lauer, who provided the district with progress reports concerning Ms. Raven's condition.   In September 1983, Dr. Lauer recommended vocational rehabilitation.   Dr. Petrakis examined Ms. Raven on October 26, 1983, and found her unable to return to work, although noting only a “slight work disability.”   On December 16, 1983, Dr. Lauer expressed  uncertainty concerning whether Ms. Raven could “weather the stress,” but recommended a trial return to work.   On March 8, 1984, Dr. Petrakis examined Ms. Raven once again and recommended she should not return to work because her symptoms could recur.

On March 22, 1984, Dr. Frederick Foston, head of the district's health services, reviewed Ms. Raven's medical file, including the psychiatric evaluations of Dr. Lauer and Dr. Petrakis.   He sent a memo to May Jang, head of the certificated personnel department of the district, concluding that Ms. Raven could return to work so long as she continues to see Dr. Lauer.   He recommended Ms. Raven be transferred to another school and that her performance be closely evaluated once she returned to work.   A copy of that memo was forwarded to Dr. Robert Rottman, director of personnel for the district.   On April 4, 1984, Dr. Rottman wrote to Ms. Raven denying her request for reinstatement based on the reports of Dr. Petrakis and Dr. Lauer.

In September 1983, Ms. Raven applied for retirement benefits with the STRS.   As a condition for receiving these benefits, Ms. Raven submitted to three psychiatric examinations.   On February 27, 1984, Dr. Alfred Marquez, Ms. Raven's personal physician, unconditionally recommended Ms. Raven could return to work finding no medical or psychiatric impairment.   On May 9, 1984, Dr. Randall Smith recommended Ms. Raven could return to work, noting there was no reason to assume that she would reexperience her stress-related symptoms.   On May 14, 1984, Dr. Patrick Buchanan recommended Ms. Raven could return to work since he could not identify any psychiatric disorder.   Based on these evaluations, STRS denied Ms. Raven's request for retirement benefits finding she could return to work.   On July 8, 1985, Dr. Petrakis examined Ms. Raven again and found she could not return to work because she may reexperience stress-related symptoms.

The question presented is which party bears the burden of going forward and the burden of proof in cases where psychiatric evaluations are in conflict.   The district contends that Ms. Raven shoulders both burdens.   We agree with the district that pursuant to the collective bargaining agreement, after an employee has taken a leave of absence for 30 days or longer, like Ms. Raven has, the employee bears the burden of going forward by presenting medical evidence of recovery.   The evaluations of Ms. Raven's physician's, Dr. Lauer and Dr. Marquez, constitute sufficient medical evidence of recovery.   The district, however, denied Ms. Raven's requests for reinstatement based on the opinion of its physician, Dr. Petrakis, and the collective bargaining agreement's requirement of final approval by the district's physician.

  We conclude that once an employee has presented medical evidence of recovery, the district bears the burden of proving that she is mentally incompetent to teach.   As applied to this action, the district should have either reinstated Ms. Raven or invoked the hearing procedures of section 44942, rather than denying her request based on the psychiatric evaluation of the district's physician.   Thus, to the extent that the district's collective bargaining agreement requires final approval for reinstatement by the district's physician in cases of mental incompetence, that provision is invalid as it conflicts with the requirements of the Education Code.

Ms. Raven was deprived of her position by the district's repeated refusals to reinstate her without the appropriate procedural safeguards provided by section 44942.   In Kalinowski v. Board of Education (1979) 90 Cal.App.3d 245, 153 Cal.Rptr. 178, the plaintiff, like Ms. Raven, voluntarily took a leave of absence due to “severe emotional disturbances.”   Approximately six months later, the school board notified her that she was suspended from her duties because of a psychological report indicating her inability to continue teaching.   The court found that once plaintiff was notified of her suspension she was entitled to section 44942 hearing procedures, which the Arcadia school board neglected to hold.   The court modified the trial court's order reinstating plaintiff with backpay by allowing the school district to invoke section 44942 suspension procedures against the plaintiff.

In Kalinowski, the board properly notified the plaintiff that she was being suspended from her teaching duties.   By contrast, defendant district did not so inform Ms. Raven, but accomplished the same result by refusing to reinstate her.   In effect, the district terminated Ms. Raven without holding the administrative hearing provided by section 44942.   The district is not permitted to deprive her of her vested employment rights indirectly, when it could not do so directly.   Otherwise, the district could read out of the statute the procedural requirements in all cases where an employee seeks to return to work after taking voluntary sick leave.   As the Kalinowski court stated, although in the context of the plaintiff's backpay award, “the district cannot now set out its own fault to avoid what the statute has expressly given to the teacher.”  (90 Cal.App.3d at p. 250, 153 Cal.Rptr. 178.)   Yet, that is what the district asks this court to do.

The district argues that these procedural safeguards require employees on sick leave to make “hard choices” between (1) remaining on unpaid sick leave or (2) facing formal suspension procedures if their requests for reinstatement are denied.   The district may still require medical evidence of recovery so long as it does not require final approval by the district's physician in cases of mental incompetence.   The notice and hearing provisions of section 44942, however, apply only to those cases where the employee's  mental competence is at issue and where the district refuses to reinstate an employee once she and her doctor indicate that the employee has recovered sufficiently to resume teaching.   Where the psychiatric evaluations are in conflict, the district bears the burden of proving the employee's mental incompetence.   The mechanism for determining mental incompetence is by the psychiatric panel and hearing provisions of section 44942.

The district, therefore, need only invoke formal suspension procedures against those employees who have submitted medical evidence of recovery and whose reinstatement is denied on the ground of mental incompetence.   That way, these employees are afforded independent psychiatric evaluation in an executive session to insure that they have properly been denied reinstatement and are, in fact, mentally incompetent to perform their duties.   The district need not formally suspend employees whose reinstatement is denied for other valid medical reasons, since in most of these cases there is no stigma attached to their illness and medical conclusions of recovery are not so subjective.

Our interpretation conforms to the public policy supporting section 44942.   The procedural safeguards are necessary to minimize the stigma associated with a label of mental illness.   This policy was fully discussed in Buchan v. Las Virgenes Unified School Dist. (1981) 124 Cal.App.3d 1088, 177 Cal.Rptr. 788.   There, the court stated that because the stigma of mental incompetence is substantial, “[s]ection 44942 attempts to avoid the full severity of such stigma by providing that all proceedings of the board pursuant to that section are to be held in executive session and by providing for a prompt opportunity for the employee to clear his name and, if successful, to have all references to the proceedings expunged from his records.”  (Id., at p. 1098, 177 Cal.Rptr. 788.)

The executive session requirements of section 44942 apply to situations where the employee is denied reinstatement for reasons of mental incompetence in order to protect the privacy of the employee.   Although the employee takes a risk that the district may deny reinstatement in the face of medical evidence of recovery, as it did in Ms. Raven's case, the formal notice of suspension automatically grants the employee more extensive procedural rights under the Education Code.   These rights prevent the kind of stigma that attached to Ms. Raven when the district unilaterally denied her requests for reinstatement.

B

The district also argues that even if Ms. Raven falls within the scope of section 44942 procedures, she has received sufficient notice and  opportunity to be heard to satisfy due process.   The district relied on Steele v. Board of Education (1988) 204 Cal.App.3d 558, 251 Cal.Rptr. 360.   That opinion, however, was depublished by the California Supreme Court on October 24, 1988, and therefore has no precedential value.   In any event, we disagree with the district's contention.

 Throughout the WCAB and STRS proceedings in the present action, Ms. Raven has been examined by numerous psychiatrists, physicians and rehabilitation counselors, and was served with explanations for the decisions denying her requests for reinstatement.  Section 44942, however, states that a tenured teacher is entitled to a hearing and an examination by three psychiatrists who are selected by her and not by the district, to judicial review of the district's determination (§ 44942, subd. (g)), and finally to a psychiatric review within six months to two years after the district placed her on mandatory sick leave (§ 44942, subd. (i)).

The record shows that the district relied on the opinion of its own staff psychiatrist, Dr. Petrakis, who repeatedly found Ms. Raven mentally incompetent to return to work.   However, there is evidence that she was competent to teach and that the best form of rehabilitation would be to resume teaching.   The appearance of impartiality afforded by section 44942 is especially important in cases such as this where the employee's mental or emotional condition is questioned.   Adherence to these procedures would dispel any criticism that a teacher was suspended or terminated because of personal disagreements with her principal or supervisor, a situation that is intimated in this case.

Furthermore, section 44942 requires the district to shoulder the burden of proving the employee's mental incompetence.   Throughout these proceedings, however, Ms. Raven has been in the position of having to prove her mental competence to the district in order to return to work.   This turns the entire procedural scheme on its head.   The procedural due process requirements of section 44942 may not be waived by reference to the provision in the district's collective bargaining agreement which requires the employee to prove that she is well enough to return to work.¹  (Educ.Code, § 44924 [prohibiting waiver of any benefits contained in Educ.Code, §§ 44800–45060];  California Teachers' Assn. v. Parlier Unified School Dist., supra, 157 Cal.App.3d at p. 183, 204 Cal.Rptr. 20 [finding nonwaiver provision of Educ.Code, § 44924 applies to collective bargaining agreements].)   Although the procedure contained in the collective bargaining agreement may be sufficient when an employee suffers from other forms of illness, it is not sufficient  when the employee's mental competence is at issue.   Section 44942 dictates further procedures in mental competency cases to satisfy due process of law which the district failed to follow.

 Finally, the district argues that even if the Education Code provisions apply to Ms. Raven, she is barred by laches from asserting these rights.   The defense of laches requires an unreasonable delay and either acquiescence by the party charged with laches or prejudice to the party asserting the defense.   (Forker v. Board of Trustees, supra, 160 Cal.App.3d at p. 20, 206 Cal.Rptr. 303.)   The district argues that laches applies because Ms. Raven did not raise her Education Code claims until December 1984, approximately a year and a half after she exhausted her sick leave and employment benefits.   We do not find this to be an unreasonable delay, however, since Ms. Raven initially requested reinstatement between September and December 1983.   If the district had properly given Ms. Raven a hearing as the Education Code requires, she would not have had to endure the protracted period of WCAB proceedings, rehabilitation counseling and psychiatric examinations that transpired in 1984.   Further, by no means can we say that Ms. Raven acquiesced in the district's refusal to reinstate her.   She has repeatedly requested her reinstatement since late 1983.   Likewise, the district has affirmatively demonstrated no prejudice, and any prejudice that may have occurred was caused by the district's own failure to afford Ms. Raven a section 44942 hearing.   (See Kalinowski v. Board of Education, supra, 90 Cal.App.3d at pp. 251–252, 153 Cal.Rptr. 178.)

II

The district next contends that the doctrine of res judicata and the exclusivity of the workers' compensation remedy bar plaintiff from seeking reinstatement and backpay, and from asserting her section 44942 rights.   We first note that in the workers' compensation proceedings Ms. Raven received certain disability and rehabilitation benefits, and later she filed a claim with the WCAB under Labor Code section 132a (hereafter section 132a), asserting that the district refused to reinstate her solely because of her industrially related mental illness.   She also asserted a violation of section 44942 in the section 132a proceedings.   The district argues that because section 132a affords a remedy for reinstatement and backpay, it is Ms. Raven's exclusive remedy and she is barred by res judicata from litigating her claim in the superior court.   In the WCAB proceeding, however, the district asserted the opposite position—that the workers' compensation laws have no applicability to Ms. Raven's rights under the Education Code.

A

The Workers' Compensation Act balances the workers' interest in a speedy no-fault determination of their claims for injury against the right to litigate  for damages in a trial court.  (Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 287, 182 Cal.Rptr. 291.)   The exclusivity of workers' compensation has been carefully preserved by California courts.   For example, in Potter v. Arizona So. Coach Lines, Inc. (1988) 202 Cal.App.3d 126, 248 Cal.Rptr. 284, plaintiff sued his employer for damages resulting from the employer's failure to notify him that he had been terminated.   Once terminated, plaintiff had a statutory right to convert his group insurance policy to individual coverage.   Plaintiff had suffered a work-related injury that required medical treatment and his wife suffered from a life-threatening disease.   Since his employer failed to notify him that he had been terminated, plaintiff did not have the opportunity to convert his group coverage to an individual policy and his insurer cancelled the policy.   Plaintiff's complaint alleged causes of action against his employer for wrongful termination, intentional infliction of emotional distress and various theories of negligence.   The court found that since the failure to notify plaintiff of his termination and the cessation of plaintiff's health benefits were normal incidents to the employment relationship, plaintiff's claim was compensable solely under workers' compensation.  (Id., at pp. 134–135, 248 Cal.Rptr. 284.)

Similarly, in Portillo, supra, plaintiff alleged that she was discharged from her job because she sought workers' compensation for injuries received in her employment.   She attempted to sue her employer in superior court seeking general and punitive damages.   Even though punitive damages are not available in administrative proceedings (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 241 Cal.Rptr. 67, 743 P.2d 1323), the court held that plaintiff could not maintain her superior court action because of the exclusivity of workers' compensation over section 132a claims.  (Portillo v. G.T. Price Products, Inc., supra, 131 Cal.App.3d at pp. 289–290, 182 Cal.Rptr. 291.)

In particular, section 132a is designed to prevent retaliatory discrimination by employers against their employees who seek workers' compensation remedies based on work-related injuries.  Section 132a expresses “a policy opposing all discrimination against workers based solely on their having been injured in the course of employment.”  (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 669, 150 Cal.Rptr. 250, 586 P.2d 564.)

 The district argues that the legislative intent of section 132a requires Ms. Raven to seek redress for denial of her procedural rights under the Education Code within the exclusive framework of workers' compensation.   In its answer to Ms. Raven's section 132a grievance, however, the district asserted that the WCAB had no jurisdiction to construe the Education  Code provisions.   The district cannot now contend Ms. Raven lost her due process rights in the workers' compensation proceeding.

 Moreover, unlike the plaintiff in Portillo, Ms. Raven's superior court claim is not that the district has discriminated against her on account of her mental illness.   Instead, she asserts that the district reached its finding that she is mentally incompetent to teach in violation of the procedural protections afforded by section 44942.   Even though section 132a recognizes the remedies of reinstatement and backpay, the identical remedies Ms. Raven sought in her superior court action, the gravamen of her petition was that she had been deprived of her statutory rights under the Education Code in violation of due process, not that the district's refusal to reinstate her was motivated by retaliatory discrimination.   Further, unlike the statutory right in Potter to convert group insurance coverage to an individual policy, the statutory right under section 44942 specifies the district must take affirmative steps to conduct a psychiatric examination and a hearing to determine the employee's mental competence.   The statutory right under the Insurance Code in Potter did not specifically mandate the employer to take any action.   Instead, the employer's duty to notify the employee of his termination was merely an implied duty arising from the employment relationship itself.

The district's argument that Ms. Raven's Education Code rights are subsumed by the exclusivity of workers' compensation must also fail in order to preserve the vitality of the Education Code provisions.   To accept the district's contention would read out these provisions from the Education Code altogether.   It was not the intent of the Legislature to allow workers' compensation to supersede the procedural entitlements under the Education Code.   In fact, in an analogous conflict between the Education Code and the Workers' Compensation Act, the Education Code provisions were found to supersede workers' compensation remedies.  (Gov.Code, § 19871;  see Bidwell v. State of California ex rel. Dept. of Youth Authority (1985) 164 Cal.App.3d 213, 220, 210 Cal.Rptr. 381.)

Education Code section 22000 et seq. provides disability, rehabilitation and retirement benefits to school district employees under the STRS.   Even though workers' compensation also provides rehabilitation and disability allowances similar to those afforded by the STRS, these benefits do not fall within the exclusive purview of workers' compensation.   Instead, STRS benefits are to be allocated to school district employees in lieu of workers' compensation benefits.  (Gov.Code, § 19871;  Bidwell v. State of California, supra, 164 Cal.App.3d at p. 220, 210 Cal.Rptr. 381 [holding that industrial disability leave benefits under STRS are only available to school district employees who are members of STRS and are contingent on continued state employment  status];  State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1979) 88 Cal.App.3d 43, 60, 152 Cal.Rptr. 153 [holding that vocational rehabilitation benefits of Labor Code, § 139.5 extend to public as well as private employees].)

By analogy, remedies under workers' compensation are not intended to supplant the procedural requirements under the Education Code in the same way that they do not supplant the substantive entitlements under the STRS.   We conclude that since Ms. Raven seeks relief for a violation of her procedural due process rights under the Education Code and not for a substantive claim of retaliatory discrimination, her claim was not within the exclusive jurisdiction of workers' compensation.

B

The district, relying on Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 249 Cal.Rptr. 578 (rev. denied Oct. 22, 1988), contends that the doctrines of res judicata and collateral estoppel bar Ms. Raven's petition in superior court.   We disagree.   In Takahashi, plaintiff was dismissed from her teaching position on the ground that she could not maintain control of her class.   She was afforded a full hearing before the Commission on Professional Competence pursuant to Education Code section 44944, in which she alleged that the commission had no jurisdiction over her and that the criteria for judging incompetency were inadequate and not uniformly or objectively applied.  (Id., at p. 1470, 249 Cal.Rptr. 578.)   After the section 44944 hearing, the commission affirmed her dismissal.   She then petitioned unsuccessfully in superior court for a writ of mandate against the commission's findings.   After her petition was denied, plaintiff filed an action in federal district court for damages and injunctive relief, based on 42 United States Code sections 1981 and 1983, alleging various constitutional theories of wrongful discharge.  (Id., at pp. 1471, 1474–1475, 249 Cal.Rptr. 578.)   There, the court held that the denial of her writ of mandate in superior court barred her federal court action.   The court specifically noted that the federal action was barred by her writ of mandate, not by the finding of the Commission on Professional Competence.  (Id., at p. 1474, 249 Cal.Rptr. 578.)

 By contrast to Takahashi, Ms. Raven was not afforded her procedural right to a hearing under the Education Code and did not institute a later proceeding in federal court after the superior court denied her writ of mandate.  Takahashi is inapposite authority for applying the defense of res judicata to Ms. Raven's superior court petition.   Moreover, the issue of Ms. Raven's Education Code rights was not fully adjudicated in the workers' compensation proceedings.

 The workers' compensation proceedings resolved that Ms. Raven suffered a stress-related industrial injury to her psyche entitling her to certain disability benefits, and that based on the psychiatric reports relied on by the district she had not been discriminated against on account of her industrial injury.   These proceedings did not determine that Ms. Raven was mentally incompetent to teach.   That determination was made indirectly by the district in violation of a legislative mandate affording procedures to protect her due process rights and to minimize the stigma that attaches to a label of mental illness.   The district's refusal to reinstate Ms. Raven because she was mentally incompetent to teach does not constitute res judicata and may therefore be the subject of judicial review.

III

Plaintiff appeals her award of backpay from January 1985, arguing that she is entitled to backpay from June 1983 or some intermediate date.   June 10, 1983 is the date that Ms. Raven exhausted her sick leave and other employment benefits.   On December 23, 1983, she officially requested reinstatement and submitted Dr. Lauer's psychiatric evaluation which recommended a trial return to work.   The district formally denied her request for reinstatement on April 4, 1984.

In Kalinowski, supra, plaintiff received notice that she would be suspended without pay on the grounds of mental incompetence in March 1975.   At that time, the plaintiff was entitled to Education Code section 44942 hearing procedures, but the district failed to provide them.   The plaintiff did not officially request reinstatement until February 1977.   The court found that the plaintiff was entitled to backpay from March 1975, the date her Education Code rights were invoked.  (90 Cal.App.3d at p. 250, 153 Cal.Rptr. 178.)

 Here, the district did not formally suspend Ms. Raven.   We must therefore rely on the date she was denied reinstatement after presenting medical evidence of recovery, since it was at that time her hearing rights under the Education Code were triggered.   Since the district failed to afford her a proper hearing, she is entitled to backpay from April 4, 1984, the date the district formally denied her request for reinstatement.

 Plaintiff also appeals the set-off for certain weekend meetings that she attended as a member of the Board of Directors of the State Board of Landscape Architects.   It is well settled that earnings from night or weekend work, which would not be inconsistent with school employment, should not be set off against any backpay award.  (Mass v. Board of Education (1964) 61 Cal.2d 612, 629, fn. 12, 39 Cal.Rptr. 739, 394 P.2d 579;  Beseman v. Remy (1958) 160 Cal.App.2d 437, 445, 325 P.2d 578.)   The record, however,  indicates that Ms. Raven attended many of these meetings on weekdays, and we therefore defer to the trial court's finding that Ms. Raven's seat on the State Board of Landscape Architects would have been inconsistent with her duties as a teacher.

 Plaintiff further appeals the set-off for permanent disability benefits she received under workers' compensation.   The authority cited by plaintiff, however, is inapposite, since it concerns set-offs for permanent disability against future earnings, not against a backpay award.   We agree with the district that the rationale in Kalinowski is persuasive.   In Kalinowski, supra, the court considered whether a backpay award should be set off by disability benefits received from the STRS.   The court concluded the set-off was proper to prevent double recovery.  (90 Cal.App.3d at p. 251, 153 Cal.Rptr. 178.)   Moreover, in the present case, the WCAB specifically based its disability award on a finding that Ms. Raven could not return to work.   We therefore conclude that the set-off for permanent disability was proper to prevent double recovery.

The order of the trial court granting Ms. Raven's petition for writ of mandate is affirmed in part and modified to allow the district to institute section 44942 proceedings if it so chooses.  (See id., at p. 252, 153 Cal.Rptr. 178.)   The backpay award is also modified to reflect the date Ms. Raven's rights under the Education Code became cognizable, i.e., April 4, 1984.   Ms. Raven is entitled to costs on appeal.

FOOTNOTES

1.   The district's collective bargaining agreement provides, “Return to duty is dependent upon the physician's statement of recovery and final approval of the District's physician.”

LOW, Presiding Justice.

KING and HANING, JJ., concur.